Imagine, for a moment, that you happen to be in charge of a jurisdiction that claims to have world-class environmental standards and regulations. As part of that rhetoric and reputation, imagine that six years ago you put in place a set of regulations that you claimed set strict and enforceable guidelines and rules for dealing with, and eventually eliminating, oilsands tailings. Now, imagine that not one single oilsands operation was able to meet the requirements and expectations of that policy. In fact, instead of shrinking, tailings lakes became even more of a problem. What would you do?
Would you make a strong statement about how environmental policies are only as good as the enforcement mechanisms behind them, and then proceed to fine and punish the industry to the extent of the law?
Would you state unequivocally that the government is very concerned about the growth and expansion of toxic tailings lakes, and that if companies cannot develop and deploy technology for safely dealing with those tailings, they will simply be forbidden from producing more?
If you were Alberta, you would simply state that the goals contained in the old legislation were clearly too ambitious, refuse to fine or penalize anyone, and ultimately scrap the legislation. You would then set about writing new regulations that made things much easier for the oilsands industry, wouldn’t really require them to do anything about tailings in the near future and contained no meaningful enforcement provisions.
That is exactly what the government of Alberta did last week with the introduction of its new Tailings Management Framework. After having suspended Directive 74, the 2009 regulation that set hard targets for dealing with tailings in Alberta with clearly articulated penalties for non-compliance, the government needed to come up with something to replace it.
What they have done, however, is essentially acceded to everything the industry wanted to see in tailings regulation. Under the new framework, companies are given a discretionary three to 10-year period at the beginning of their life during which they can accumulate tailings without limit. At that point, the total volume of tailings they are allowed is capped. In other words, the mines are allowed to keep their tailings volume constant after their initial accumulation. Then the mines have until 10 years after they close to fully reclaim all of their tailings. In other words, under the new framework, we will not see any significant reclamation for decades to come.
The framework also gives the Alberta Energy Regulator (AER) some flexibility in dealing with mines that surpass their allowed tailings volume, suggesting that the AER will be allowed to permit a certain percentage deviation in volume, while not actually detailing what that percentage will be.
Perhaps most concerning, however, is the lack of specificity in the Framework around enforcement. What will happen to mines that surpass the allowed volume of tailings? The regulation speaks of a compliance levy, but it does not say how that levy will be calculated and provides no guarantee that it will be enough to serve as a deterrent. There needs to be some guarantee that the cost of the levy will be higher than the cost of investing in cleaning up tailings, or industry will simply choose to pay the levy and tailiings will continue to grow.
Connected to that is the concern that mines do not have to completely reclaim their tailings until 10 years after they close. Mines can have a life span of 50 years—that’s a long time to wait for meaningful reclamation.