March 5 2012 Notes

MARCH 5, 2012
• Two Different Challenges for EA Law
– Cumulative Effects
– Worst-case Scenario Accidents and
• Cumulative Effects Assessment:
Cheviot Coal Mine Case
• Assessment of Worst-case Scenario
Accidents and Malfunctions: Tar Sands
Tailing Dams
The Cumulative Effects
Assessment Challenge
• Cumulative Effects - death by a
thousand cuts
• High-probability environmental effects
that are not significant for one project,
but that become significant as projects
aggregate over time
• Examples: grizzly bears, woodland
caribou, global greenhouse gas
Extirpation of Grizzlies in the U.S.
The Worst-case Scenario
• Low-probability, highly unpredictable
accidents or malfunctions that cause
significant environmental effects in short
period of time
• Examples: BP Deepwater Horizon,
Fukushima, tailing dam spills
Kolontar Hungary
Tailing Dam Failure
• Tailing dam burst at alumina plant near
Kolontar Hungary in 2010
• More than 700,000 cubic metres of red
toxic sludge was released into tributary
of Danube River
• Eight people died, 120 injured, 800
forced to evacuate
Kolontar Hungary
Tailing Dam Failure
Cumulative Effects Assessment
Legal Requirements
CEAA S. 16 Every environmental
assessment “shall include a consideration of
the following factors:
(a) the environmental effects of the project,
including the environmental effects of malfunctions
or accidents that may occur in connection with the
project and any cumulative environmental effects
that are likely to result form the project in
combination with other projects or activities that
have been or will be carried out”
Cumulative Effects Assessment
Legal Requirements
• Provincial EA laws generally don’t require
cumulative effects assessment
• Aboriginal claims-based laws include
provisions similar to CEAA S. 16
Cheviot Coal Mine Project
Cheviot Coal Mine Project
• Development, operation, and reclamation
of open-pit metallurgical coal mine
• Construction, operation, decommissioning
of a coal processing plant
• Restoration of rail line
• Upgrading of existing access road to mine
• Installation of new electrical transmission
line and substation
Cheviot Coal Mine Project
• Located in the Rocky Mountains of westcentral Alberta 320 km west of Edmonton
and 70 km south of the Town of Hinton
• Cheviot mine permit area is approximately
23 km long and 3.5 km wide
• Open pit mining carried out in phases over
20 years, with reclamation as new pits
Cheviot Coal Mine Project
Cheviot Coal Mine Project
Cheviot Coal Mine
Environmental Effects
• Waste rock (millions of tonnes) dumped
into creek beds (destroying fish habitat,
habitat for threatened harlequin ducks)
• Destruction of grizzly bear and other
wildlife habitat
• Proximity to Jasper National Park
• Cumulative effects in relation to other
mines, and forestry activities
Assessment of the
Cheviot Project
• Cheviot Project triggered CEAA by
Fisheries Act authorization (May 1996)
• Comprehensive study, then federal/Alberta
Energy Utilities Board joint panel review
• Joint Panel Agreement (including terms of
reference) signed October 1996
• Hearings held, report issued in June 2007
• Fisheries Act authorization August 1998
Alberta Wilderness Association
(Cheviot) Case
• Application for judicial review filed in
September 1998
• Key Issue: Did the Panel err in failing to
comply with para. 4.(a), s. 16, s.34 and
joint panel agreement?
Alberta Wilderness Association
(Cheviot) Case Issues
• Legal duties fall on Panel not Proponent
• Consideration duty - Failure to consider s.
16 factors is error of law (what about
breach of panel agreement?)
• Information-gathering duty s. 34 require
that the Panel demand production of
information it knows exists and is relevant
to s. 16 duty?
• Reporting duty s. 34
Alberta Wilderness Association
(Cheviot) Case Issues
• Reporting duty s. 34, panel required to
substantiate its recommendations for
purposes of CEAA
• Use of valued environmental components
valid as within the expertise of Panel
• Duty to consider cumulative effects
breached by failure to gather known
information on other mines and forestry
Alberta Wilderness Association
(Cheviot) Case Issues
• CEAA requirements (projects that have
been or will be carried out) amplified by
Joint Panel Agreement (have been or are
likely to be carried out)
• CEAA Policy Statement notes that
cumulative effects assessments should
include reasonably foreseeable projects
• Recent review panel TORs state that
foreseeable projects should be included in
Cheviot Cumulative Effects
• Alberta and Canada reconvened panel to
assess cumulative effects in June 1999
• Joint Review Panel held further hearings,
reported in September 2000
• Panel determined that primary sources of
cumulative effects are forestry, mining, oil
and gas, recreational developments
• Valued Environmental Components (water
quality, grizzlies, elk, fish) are appropriate
Cheviot Cumulative Effects
• Panel gathered additional information with
respect to mining, forestry, oil and gas
• Cumulative effects on various bird species
through losses in habitat, but not
significant or readily mitigable
• Significant adverse effects on grizzly bears
can be effectively and adequately
mitigated through regional planning and
implementation of Grizzly Bear Strategy
Cumulative Effects Assessment
• Need to make use of scenario-based
CEAs (e.g., assess every 5 years)?
• CEAA s.16 implemented infrequently (but
see Mackenzie Gas Project Panel Report)
• Is Project EA the right forum for CEA?
• Fairness to proponent (first project vs.
later projects)?
• Regional EA? Strategic EA?
Assessing Malfunctions and
• Assessment of effects required of “any
malfunctions or accidents that may occur
in connection to the project” CEAA s.16
• Should such an assessment include worstcase scenario analysis? Is it legally
required now under CEAA?
• Worst-case scenario analysis required
under NEPA (post BP Deepwater Horizon
and Inuvialuit Final Agreement)
Worst-case Scenario Analysis
• Purpose – avoid risks that worst case
would occur and mitigate adverse effects
(emergency measures, contingency
• Elements:
– Identify probability of event occurring (risk
– Determine severity of potential effects
– Identify prevention and mitigation measures
Mackenzie Gas Project
WCS Analysis
• WCS analysis undertaken for project
components in Inuvialuit Region
• Inuvialuit Final Agreement required that
– Panel estimate “potential liability of the
Proponents, determined on a worst-case
scenario, taking into consideration the
balance between economic factors, including
the ability of the Proponents to pay, and
environmental factors. . .” (specifically wildlife
Mackenzie Gas Project
WCS Analysis
• Five worst-case scenarios identified: well
blowouts at anchor fields; pipeline
ruptures, releases of natural gas, liquids
• Proponent commitments to mitigate
negative impacts on wildlife harvesting in
Region identified
• Value of wildlife harvest loss and
Proponent Liability estimated.
• Financial responsibility guarantees
Deep Geologic Repository
WCS Analysis
Deep Geologic Repository
WCS Analysis
• Proposed repository for low and mediumlevel nuclear waste at Bruce facility
• Ontario Power`s EIS includes WCS
analysis pursuant to s.16.(1) CEAA
• “DGR must be able to safely isolate and
contain low and intermediate level waste
for tens of thousands of years and beyond
without any significant adverse effects to
the environment and members of public”
Deep Geologic Repository
WCS Analysis
• Examined potential environmental effects
associated with likely events, also
potential effects due to abnormal events
(malfunctions, accidents and malevolent
• Safety assessments for “likelihood” and
“worst-case” accident scenarios set out in
EIS for 50-year pre-closure period and
post-closure period
Deep Geologic Repository
WCS Analysis
• Scenarios included fire and breach of a
waste package in the pre-closure period
and glaciation in the post-closure period
• Human intrusion and severe shaft seal
failure were identified as only scenarios
with potential for significant radiation
doses to persons living above repository
• Scenarios considered to be “very unlikely”
Tailing Dam Failures
• Annual failure probability of 1 in 700 based
on 1970 to 2000 data
• This 0.1% chance of failure is ten times
greater than that of a conventional dam
• Consequences of tailing dam failures are
also more catastrophic
• Globally one significant tailings
impoundment failure per year
Oil Sands Tailing Dams
• Three major oil sands tailing dam failures
in Canada (all in 1970s)
• Oil sands tailings lakes cover 170 km2
• Over 840 million m3 of tailings require
long-term containment; expected to grow
30% to over 1.1 billion m3 by 2020
• Highly toxic: napthenic acid, heavy metals
• Reclamation of toxic tailings not yet
demonstrated on a commercial scale
Suncor Tar Island
Tailing Dam
Joslyn North Mine Project
• Oil sands surface mine and bitumen
extraction facilities proposed by Total
• 70 kilometres north of Fort McMurray
• Designed to produce 100,000 barrels per
day of bitumen
• Annual GHG emissions of 1.5 million
representing new 270,000 cars on the
road every year
Joslyn North Mine Project
Joslyn North Mine Project
WCS Analysis
• CEAA, TORs required assessment of
effects of any malfunctions or accidents
• TORs stated that the EA should consider
– the sensitive elements of the environment
(e.g. communities, homes, natural sites of
interest, areas of major use) that may be
affected in the event of an accident or major
– the likelihood of occurrence of such accidents
or malfunctions
Joslyn North Mine Project
WCS Analysis
• Panel requested information on probability
of accidents and malfunctions of dams and
a major tailings spill to such water courses
as Ells and Athabasca Rivers under low
flow, ice, spring flood conditions
• Proponent responded “dam failure could
occur as a result of inadequate strength of
the foundations or dyke construction
materials, seepage and erosion and
Joslyn North Mine Project
WCS Analysis
• Proponent declared that “likelihood of
tailings structure failure was minimal.”
• Data and analysis not on the public record
• Proponent declined to undertake detailed
model spill scenarios describing tailings
containment failure consequences
• Panel accepted conclusion of “minimal
likelihood” of tailings containment failure
at face value without analysis
Does CEAA Require Worstcase Scenario Analysis for Oil
Sands Tailing Ponds?
• Can legal argument be made that CEAA
requires worst-case analysis of potential
tailing dam failure?
• Are Panel`s legal obligations satisfied by
merely determining that likelihood of tailing
dam failure is remote or minimal?
• But isn`t the very concept of accidents and
malfunctions that they are infrequent?