Experts say COVID-19 is being used as an opportunity to grant companies carte blanche waivers on ‘routine’ reporting for everything from sulphur dioxide emissions to water withdrawals for fracking to how much wastewater is being added to tailings ponds

Earlier this month, citing the unfolding coronavirus pandemic, the Alberta government unveiled a series of sweeping orders that effectively eliminate several environmental reporting requirements for companies in the energy industry.

The orders, stemming from the minister of energy and the minister of environment and parks, state that the application of numerous parts of legislation related to the environment are “not in the public interest” at this time.

It’s what Jason Unger, executive director of the Environmental Law Centre in Edmonton, calls a “carte blanche approach.”

Neither Alberta Energy nor Alberta Environment and Parks responded to The Narwhal’s request for an interview.

The orders cite “hardship in having to comply” with what are known as “routine reporting requirements” for companies operating in the energy sector. Industry must still report emergencies to relevant officials.

“The [Environment and Parks] minister uses the word ‘routine’ and it sends the message that there’s nothing alarming about this,” Shaun Fluker, an associate professor of law at the University of Calgary, told The Narwhal.

“The problem is a lot of these reporting requirements are tied very specifically to concerns or issues that Alberta Environment [and Parks] raised when the approval was authorized in the first place,” Fluker said.

When a company is granted an approval to operate in the province — whether it be for a fracked well, a coal mine, a sour gas plant, an oilsands project or something else — that approval comes with a long list of specific environmental concerns that must be monitored and reported on to the relevant ministry or to the Alberta Energy Regulator.

Those are considered “routine” reports and are conditions of the company’s approval to operate.

But at least for now, many of those reporting requirements are suspended, and it’s unclear whether some environmental reports will ever have to be filed. While companies are still asked to complete required monitoring, they are not required to report the results unless specifically asked by the regulator, leaving questions about who is ensuring mistakes aren’t being made.

“Our reporting programs are not being given the importance that they should be given,” David Spink, a retired Government of Alberta employee and former director of air and water approvals, told The Narwhal.

“I’m worried.”

For Spink, it’s a philosophical question. While he acknowledges that each missing report may in itself not lead to a bigger problem, he is concerned about the larger trends of eroding environmental regulation — and where this might lead.

For others, the catch-all nature of the orders is of concern. Oil and gas companies are essentially “getting a vacation from environmental reporting,” Randy Christensen, a lawyer with Canadian environmental law charity Ecojustice, told The Narwhal. “It’s really a blanket waiver of reporting.”

“These are exceptional times, and the [regulator] will remain flexible and responsive to the changing circumstances,” Shawn Roth, a spokesperson for the Alberta Energy Regulator, wrote in an email to The Narwhal. “We are working to fully understand and implement the ministerial orders.”

We, too, are working to understand the orders.

As Fluker points out, “routine reporting” can sound like an innocuous enough thing to skip, so we dug into the documents to find some examples of what exactly companies don’t have to do right now.

1. Report ‘routine’ emissions of sulphur dioxide at sour gas plants

Alberta is the country’s largest emitter of sulphur dioxide, according to the Pembina Institute‚ and the oil and gas sector is the largest source of the province’s sulphur dioxide.

Health Canada has linked exposure to sulphur dioxide to respiratory and lung problems, which can include asthma, bronchitis and emphysema — particularly in children, pregnant women and sensitive populations.

That’s why the approvals issued for sour gas processing plants such as the Husky facility in Provost, Alta., include regular reporting requirements for the plant’s acid gas flare stack — including monthly reports on how much sulphur dioxide is released each day.

But this sort of reporting is considered routine, so now the company does not have to submit those monthly reports.

The implications of the government’s orders are concerning for Unger. “It’s a question of, well, who’s monitoring the overall system of environmental assurance that we have?” he asked.

“If we’re not getting reports, then obviously the government can’t know what it is or isn’t missing.”

Husky did not respond to The Narwhal’s request for comment.

2. Meet the deadline for making inactive oil and gas wells compliant with safety rules

As part of requirements set out by the Alberta Energy Regulator, companies are supposed to properly suspend any wells that are classified as inactive.

An inactive well is one that is not producing oil or gas and has not been safely plugged. Suspending a well can involve installing cement plugs and chaining up the well head so it can’t be turned back on.

According to the Government of Alberta, there are 91,000 inactive wells in the province.

In a video, the regulator explains how it created a program five years ago to ensure unsafe inactive wells are not dotting the landscape.

“A few years back, [the Alberta Energy Regulator] realized that we had a number of inactive wells that were not meeting our suspension requirements, so the [regulator] designed and implemented the inactive well compliance program,” a spokesperson says in the video.

“Under the [program], companies have until April 1, 2020, to bring all their noncompliant inactive wells into compliance.”

But two weeks before the final deadline for that five-year program, the global pandemic was declared. The minister of energy then announced the compliance deadline was going to be suspended.

That leaves some questioning whether the pandemic would have really affected a company’s ability to bring a well into compliance.

“While it might be possible that COVID-19 is responsible for failure to meet that deadline, the pandemic can only be relevant after March 17, which was merely two weeks prior to the deadline,” Fluker pointed out in an analysis on the University of Calgary Faculty of Law blog.

“Causal connection here seems to be somewhat of a remote possibility,” he added.

“Instead, this relief will likely be an unwarranted excuse for some operators to further put off having to comply.”

3. Tell the regulator how much water is being taken from rivers for fracking

Fracking uses notoriously large amounts of fresh water. As part of the process, fresh water is injected deep into the ground, often permanently.

A study funded by Natural Resources Canada found that just 30 per cent of fresh water injected into fracked wells can be recovered — meaning the other 70 per cent remains “trapped” deep underground, forever.

In 2018, the Alberta Energy Regulator reported nearly 29 million cubic metres of water was used to fracture new wells. Of that, 98 per cent was not recycled.

When a company applies for a licence to use water to frack a well, the regulator requires it to carefully monitor the amount it withdraws from the river or other water source, as it did when energy giant Repsol applied for a licence to use water from the Medicine River in central Alberta, near Rocky Mountain House.

With this licence, Repsol is allowed to divert 800,000 cubic metres of water annually for fracking, on the condition that it submit monthly reports on the amount of water it takes from the river, the amount of water used per well, the flow of the river and many other measurements.

According to the ministerial order issued by Minister of Environment and Parks Jason Nixon, “all requirements to report information pursuant to provisions in licences or approvals authorized under the Water Act” are suspended.

The minister suspended this reporting — as opposed to deferring it — so it’s not clear whether these reports will ever be submitted, though it’s possible the suspension will be lifted before next year’s annual reporting, which could include missed data, is due.

Suspending this kind of reporting can leave a “gap in information,” Fluker, the law professor, told The Narwhal.

“To the extent we’re monitoring for cumulative impacts, we’re left to wonder how that’s going to happen,” Fluker said.

Repsol did not respond to The Narwhal’s request for comment.

4. Submit annual data on how much wastewater is going into oilsands tailings ponds

At a massive industrial operation like the Suncor oilsands processing plant and mine, north of Fort McMurray, there’s a lot going on. The terms and conditions attached to its approval to operate is 115 pages long.

These include a requirement to submit an annual report on tailings ponds: their size, where their contents are ultimately ending up, where the wastewater is coming from, how much is added to them every month and so on. This year’s report is due April 30, according to the approval.

But recent ministerial orders suspend routine reporting like this, citing “hardship in having to comply.” As Fluker noted, as it stands, all reports will only be required “upon request,” with no exception noted for annual reporting.

For Christensen of Ecojustice, this raises concerns about whether these measures go too far. While he acknowledges there may be staffing or working-from-home challenges associated with the pandemic, he questions whether suspending so much routine reporting was necessary.

“It certainly looks like [the government is] taking advantage of the situation to implement orders that are far broader than are called for in this situation,” he said.

“It certainly raises the question of whether this is a longer-term strategy to weaken reporting.”

Suncor did not respond to The Narwhal’s request for comment.

5. Report on how much ammonia nitrogen is in industrial runoff

Forms of nitrogen released into fresh water from industrial sites — or agriculture — can lead to a wide range of effects in the environment. Think: algal blooms and the risk of fish mortality.

At the Husky sour gas plant mentioned above, one of the conditions of its approval was that the company monitor the ammonia nitrogen in runoff from the plant on a weekly basis.

It is then supposed to include those findings in an annual report submitted to the Alberta Energy Regulator.

But that’s another routine reporting requirement, so it’s suspended under the ministerial order.

One of the functions of having a regulator look over reports made by companies is to ensure there haven’t been errors in monitoring, Fluker said — and to make sure nothing has been missed.

Leaving out that extra layer of checks and balances, he added, “leads to potential mistakes.”

6. Pay levies owed to the Alberta Energy Regulator

It’s not just routine environmental reporting that has been suspended during the pandemic.

In late March, the Government of Alberta announced that oil and gas companies would no longer have to pay the levy they owe to the Alberta Energy Regulator, which is normally entirely funded by industry.

The government is paying those levies instead for at least the next six months, to the tune of $113 million.

7. Monitor birds at tailings ponds?

Oilsands companies are required to develop plans to prevent birds from coming into contact with hazardous substances such as those found in tailings ponds.

The Alberta Energy Regulator has issued an exemption to the ministerial orders to ensure that companies do continue to submit what are known as bird protection plans.

It’s unclear, however, whether companies have to report what’s actually happening on the ground — like the number of birds found dead in tailings ponds.

What is clear is that industry is asking for a reprieve in monitoring in order to adhere to COVID-19 physical distancing recommendations.

In a letter to the federal minister of environment and climate change, the Canadian Association of Petroleum Producers asked the government to “defer monitoring” for this year when it comes to oilsands bird programs.

The Alberta Energy Regulator did not answer specific questions from The Narwhal about the status of bird monitoring programs.

8. Submit logs on the state of well casings that protect drinking water

Oil and gas wells can be hundreds of metres deep and may pass through aquifers that are used to supply the drinking water wells of nearby residents.

To keep the oil or gas from leaking into that aquifer, wells are surrounded by what’s known as a “casing” — essentially, a pipe surrounded by cement that runs down the well.

According to the Alberta Energy Regulator, “surface casing … effectively protects in-use aquifers that supply domestic water wells.” As Fluker at the University of Calgary has pointed out, that means the “the protection of domestic water wells in rural Alberta.”

Monitoring this casing is part of a process called “well logging,” wherein companies record and report what’s going on inside an operational well to the Alberta Energy Regulator.

Under the recent order from the minister of energy, the requirement to submit those reports has been suspended.

“It’s going to be a lot harder for some of those [adverse] events to come to light because of this,” Fluker told The Narwhal of the suspension of routine reporting requirements.

“It is potentially very significant.”

‘Top-down direction’

One thing came up over and over again with experts The Narwhal spoke with — they were concerned about the broad nature of the orders issued by the minister of environment and parks and the minister of energy, as well as the justification for issuing them.

“It’s one thing if things come from the bottom up,” Spink said, pointing out if companies had valid concerns about being able to safely fulfil their obligations, those should be taken seriously. “My concern is that this was top-down direction.”

“That’s part of the challenge — not having a variety of reasons [regarding what] compelled them to do it,” Unger of the Environmental Law Centre said. “We don’t have the rationale or the reasons or any kind of hardship analysis.”

“All of the checks and balances that we really take for granted in our political system — those are all suspended.”

Roth, the spokesperson for the regulator, wrote in an email that the “physical distancing and other safety protocols that have been put in place to support the COVID-19 response may impact the availability of industry staff and limit capacity to comply with reporting requirements.”

But Christenson points to other examples, such as COVID-19-related concessions made by Health Canada for industry reports under the Consumer Product Safety Program. In that program, companies can request an extension to report, but a blanket suspension of reporting was not created.

Christensen questions whether the sweeping suspension was necessary for the energy industry’s environmental reporting.

“Why is it necessary here when they haven’t made concessions for other parts of the business sector that don’t relate to the environment?” he wondered.

“That seems to be a kind of an indication of what’s really going on here.”

For Fluker, these orders raise questions about how an agenda is being pushed through under a crisis.

“The declaration of this public health emergency has essentially freed the minister of constraints that he otherwise faced in the normal course,” he told The Narwhal. “In the normal course, I don’t even think he would have the power to do this.”

“All of the checks and balances that we really take for granted in our political system — those are all suspended.”

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