Alberta premier says Imperial Oil should have disclosed tailings pond spills

Alberta's energy regulator may have ignored provincial law by not publicly disclosing that waste from a large oilsands tailings pond was escaping containment and seeping into groundwater, says a lawyer.

Lawyer filing complaint with information and privacy commissioner

A mine surrounded by forest can be seen in the distance.
The Kearl Lake mine, run by Imperial Oil, has had two tailings pond leaks in the last nine months. Although the company says no toxins reached waterways, critics say the company and the government had an obligation to tell nearby communities and the Northwest Territories downstream. (Alberta Innovates)

Alberta's energy regulator may have ignored provincial law by not publicly disclosing that waste from a large oilsands tailings pond was escaping containment and seeping into groundwater, says a lawyer.

Drew Yewchuk of the University of Calgary's Public Interest Law Clinic is asking the province's information and privacy commissioner to investigate how and why the Alberta Energy Regulator chose not to release information on the leak at Imperial Oil's Kearl mine, despite direction in provincial law to do so.

"How do decisions about what gets reported get made?" asked Yewchuk. "They don't make any sense."

The mine is 570 kilometres northeast of Edmonton, near Fort McKay.

Last May, Imperial Oil reported to the Alberta Energy Regulator (AER) that it had found some brown sludge outside the boundaries of one of its Kearl tailings ponds. Over the following summer and fall, investigators determined that it had come from the pond and contained levels of several toxic contaminants that exceeded environmental guidelines.

Area First Nations were told about the original finding of sludge. However, neither they, nor the public, heard any further information until Feb. 6, when the regulator issued an environmental protection order after a second tailings release from Imperial — 5.3 million litres of wastewater that escaped a catchment pond.

Yewchuk points to sections in the Freedom of Information and Protection of Privacy Act that say any public body is obliged "without delay" to inform the public about any "risk of significant harm to the environment or to the health or safety of the public" or any information "clearly in the public interest."

That provision is to override any of the act's exceptions to mandatory disclosure, including risk of financial harm to a third party.

"This is pretty obviously going to damage the environment," Yewchuk said. "Everyone knows that tailings are unreleasably toxic."

'No impacts' to drinking water, says Imperial

Imperial says releases were contained and posed no threat to water or wildlife.

"Extensive and ongoing water monitoring has confirmed that seepage has not entered local waterways," it said in a release Monday.

"There have been no impacts to local drinking water sources. There is no indication of impact to wildlife."

The AER's environmental protection order of Feb. 6, 2023, said that August 2022 sampling of the first wastewater leak found iron, arsenic, hydrocarbons, sulphate and total sulphide levels exceeded provincial guidelines.

The Athabasca Chipewyan First Nation, downstream from the spill, has photographed moose tracks going into the affected area.

Last week, the Regional Municipality of Wood Buffalo stopped drawing drinking water from Lake Athabasca as a precaution in response to concerns about the spills.

The Athabasca Chipewyan First Nation, along with the Mikisew Cree and the government of the Northwest Territories, have expressed anger and frustration with how they learned of the spills.

Premier expects more transparency

On Monday, Alberta Premier Danielle Smith said she has told both the AER and oil companies she expects "radical transparency" about any such releases.

She also said media published "misinformation" that implied drinking water quality was at risk.

"If they had been radically transparent right from the very beginning then it might not have turned into the story that it did," Smith said at an unrelated news conference.

The premier said an oil company, not the Alberta government, is obligated to tell the Northwest Territories if toxic material had entered tributaries, which she says it didn't. But she said Imperial should have proactively notified the territory, calling it a "misstep."

Smith said she has also told the AER she expects the premier's office to be notified of spills.

Opposition NDP leader Rachel Notley called it "utterly irresponsible and ridiculous" for the premier to say the government has no obligation to inform Indigenous communities of the spills.

"We have not contracted out the basic function of monitoring and keeping people in our communities safe to anyone in the oil and gas industry," Notley said.

She said documentation of the problem shows the government was aware of the first seepage in May 2022.

Cleanup proceeding

Neither the Alberta government nor the two federal departments — Environment and Fisheries and Oceans — that have relevant regulatory responsibilities have responded to repeated questions about when they learned of the spills.

In an emailed response, the regulator said it releases information to anyone who files a request for it.

"We are required to give our information to anyone who makes a request under the Freedom of Information and Protection of Privacy Act," said a spokesperson for the regulator.

"The AER will continue to provide updates to potentially affected communities and is actively monitoring the situation at the Kearl site for Imperial's ongoing compliance to the order," the regulator said in an earlier statement Monday.

Imperial said the cleanup is proceeding.

"All impacted surface ice and snow in the area has now been removed and safely disposed," said a Monday release from the company.

Imperial said the seepage is primarily natural groundwater and precipitation with a "small amount" of tailings. It is installing monitoring and collection wells, surface pumps and additional drainage collectors to prevent a further release.

Company vice-president Simon Young offered his "deepest apologies" for the spills.