By News Release dated March 13, the Government of Alberta (“Alberta”) has introduced two new significant environmental frameworks proposed under Alberta’s Lower Athabasca Regional Plan (“LARP”) - the Tailings Management Framework for the Mineable Athabasca Oil Sands (the “Tailings Management Framework”) and the Surface Water Quantity Management Framework for the Lower Athabasca River (the “Surface Water Quantity Management Framework”).
The Tailings Management Framework
The Tailings Management Framework is intended to provide direction for the management of new and legacy fluid tailings, during and following the cessation of mining operations in the Lower Athabasca Region. Its stated objective is as follows:
Fluid tailings accumulation is minimized by ensuring that fluid tailings are treated and reclaimed progressively during the life of a project and all fluid tailings associated with a project are ready-to-reclaim within 10 years of the end of mine life of that project. The objective will be achieved while balancing environmental, social, and economic needs.
According to Alberta, the Framework will contribute to the achievement of the outcomes and objectives in LARP, including the objective to increase the speed of reclamation and enhance the reduction of tailings ponds. The two drivers identified as having guided the Framework’s creation, are the need to build on provincial environmental protection and management policies and principles, and the need to adopt a cumulative effects management system in the Region.
In the Tailings Management Framework, Alberta has confirmed its commitment to ensuring the environmentally sustainable development of Alberta’s oil sands in an innovative, responsible and collaborative manner, and its recognition that responsible oil sands development includes managing the long term liability and environmental risk associated with fluid tailings. It is stated that “the treatment of fluid tailings to a ready-to-reclaim state quickly, is required” in order to achieve reclamation under the Environmental Protection and Enhancement Act (“EPEA”) in a timely manner.
As set out in the News Release, the Tailings Management Framework focuses on the slowing of the growth and quicker remediation of tailings ponds. Under the Framework, these objectives are hoped to be achieved by:
- limiting the amount of tailings that may be accumulated;
- pushing companies to invest in technology to remain within those constraints;
- establishing thresholds which, when reached, require operators to take proactive measures; and
- ensuring that tailings are progressively treated and reclaimed throughout the project life cycle, and are in a ready state to be reclaimed within 10 years of the end of the mining operations.
Under the Framework, additional security may also be required in certain specified circumstances, under the Mine Financial Security Program, regulated under the Conservation and Reclamation Regulation passed pursuant to EPEA. The additional security would address aspects of risk and liability posed by a project that exceeds a management threshold for fluid tailings. The Alberta Energy Regulator (the “AER”) may also apply a non-refundable financial penalty in response to a threshold being exceeded.
The Framework is said to build on but not replace existing provincial legislation and policy on tailings management and reclamation, including EPEA and the Water Act (under which approvals are required for the operation of oil sands mines with tailings facilities), the Conservation and Reclamation Regulation under EPEA (under which specified land is to be returned to an equivalent land capability), AER Directive 074: Tailings Performance Criteria and Requirements for Oil Sands Mining Schemes, the Land Use Framework (2008), LARP (2012), the Oil Sands Conservation Rules (2013), Responsible Actions: A Plan for Alberta’s Oil Sands (2009) and Launching Alberta’s Energy Future: Provincial Energy Strategy (2008). The Framework is intended to fill a regulatory gap by providing a framework in which to monitor and manage long term fluid tailings accumulation and reclamation. Requirements under the Framework will be administered primarily under the Oil Sands Conservation Act and EPEA.
The Tailings Management Framework will be implemented by way of a phased approach. Phase I, which will focus primarily on those elements required for operators to submit fluid tailings profiles and tailings management plans, is scheduled to proceed from January 2015 to Fall/Winter 2015. Phase II, scheduled to proceed from Fall/Winter 2015 to Fall/Winter 2016, will focus upon the development or modification of existing management responses to support the needs of the Framework, as well as continued development of operational guidelines and a review of key programs required to support ongoing management of tailings, including management actions.
The Surface Water Quantity Management Framework
The Surface Water Quantity Management Framework is an update to the Water Management Framework: Instream Flow Needs and Water Management System for the Lower Athabasca River, which was implemented by Alberta Environment and Fisheries and Oceans Canada in 2007. The Surface Water Quantity Management Framework is said to complement the three existing environmental management frameworks under LARP (the Air Quality Management Framework, Surface Water Quality Management Framework, and Groundwater Management Framework).
The Surface Water Quantity Management Framework is said to be part of a shift to cumulative effects management. The stated objective of the Surface Water Quantity Management Framework is to manage cumulative water withdrawals to support both human and ecosystem needs, while balancing social, environmental, and economic interests. The two main drivers which have guided its development are concerns and interests identified through existing processes, and the need to adopt a cumulative effects management system in the Region. By purporting to reflect the ongoing desire to balance environmental, economic and social outcomes, the Framework is said to align with the goals of Alberta’s Land Use Framework and other key policies, including Water for Life: Alberta’s Strategy for Sustainability (2003, 2008), and theRegional Sustainable Development Strategy for the Athabasca Oil Sands Area (1999).
As set out in the News Release, the Surface Water Quality Management Framework purports to establish stringent water use requirements for both current and future mineable oil sands operators to, among other things, maintain an adequate quantity of water for Aboriginal river navigation and pursuit of traditional activities. Under this Framework, water withdrawal limits have been set and there is a prohibition on the use of the majority of water by existing operators, and on all water by new operators, during low flow periods of the Athabasca River. Indicators, and weekly and adaptive management triggers have been established, to act as warnings as limits are being approached.
The weekly management triggers and water withdrawal limits are scheduled to come into effect at the start of the 2015 early winter period (October 29, 2015).
As stated in the News Release, the two frameworks have been introduced as new steps to reduce tailings ponds and regulate the use of water from the Athabasca River, as part of ongoing efforts to reduce the environmental impact of oil sands development.
Despite this laudable intention, critics have been quick to pounce, particularly in connection with the Surface Water Quantity Management Framework. Among the criticisms leveled is the absence of an ecosystem base flow, which is the minimum flow required to sustain life in the river. Critics point to the fact that while new operators are required to cease water withdrawals during low flow periods, legacy operators are permitted to withdraw the minimum volume necessary to carry on operations, instead of being compelled to build storage facilities. Other criticisms include concerns centering on the absence of enforceability mechanisms for the Framework.
Industry participants will be forced to familiarize themselves with the provisions of the two Frameworks, in anticipation of their application.