In early February, the Energy Resources Conservation Board inaugurated a new era of toughened oil sands policing by issuing a document called Directive 074 as the final version of tailings ponds regulations.

The exercise began when the ERCB recognized that while plant operators have invested heavily in tailings reduction methods and technologies, they have not met the targets set out in their development applications. As a result, the size and number of fluid tailings ponds that require long-term containment have grown. With each successive project application and approval, public awareness and concerns have also grown.

“The first part of the directive was to reduce the inventory, and we set firm performance criteria for reclaiming the tailings ponds. Finally, we have clear consequences for enforcement if these criteria aren’t met,” says ERCB communications officer Davis Sheremata. “It’s a three-step process and each is as important as the other.”

The rules chart a course for cleaning up vast quantities of microscopic “fines.” These tiny particles, measured in micrometers or millionths of a meter, occur in all oil sands ores. The microscopic grains build up into volumes measured in tonnes of unwanted solid byproducts. They are mixed with water into yogurt-like fluid by the production process of bitumen mega-mines. In order to comply with the new directive, plant operators must:

• Reduce accumulation of fluid tailings by capturing stated minimum amounts of fines – defined as mineral solids in particle sizes of less than 44 micrometers – and placing them in a dedicated disposal area (DDA).
• Prepare a plan for every DDA that will make the sites ready for reclamation five years after deposits into them are finished. The ERCB will review the plans and establish performance measures.
• Operate and abandon each DDA in accordance with project development applications or ERCB approvals.

The effect of the new directive is to make oil sands companies put their cleanup targets in writing, submit to performance inspections and live up to the objectives or face consequences. A wide array of potential penalties enables the ERCB to devise punishments that fit any crimes of neglect, omission or commission.

“Previously, companies had put performance criteria as targets on their applications,” Sheremata says. “We found that not only were they not being met, but also they were very difficult to enforce. Now we have the ability to bring enforcement actions against them, which can range anywhere from increasing the number of audits against them to shutting in a facility for a serious example of non-compliance. We’ve shut down 1,121 facilities, pipelines and operations since 2000.”

The enforcement actions approach has been found to be far more powerful than prosecutions and fines in the law courts. “When you shut in a multimillion-dollar facility for 10 months, it can cost companies hundreds of millions of dollars,” Sheremata says. “They have to answer to their shareholders for something like that. We find this approach far more valuable for getting companies to take enforcement seriously.”