SUBMISSION TO THE JACKPINE MINE EXPANSION PROJECT JOINT REVIEW PANEL ADEQUACY OF INFORMATION IN THE ENVIRONMENTAL IMPACT STATEMENT

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1 SUBMISSION TO THE JACKPINE MINE EXPANSION PROJECT JOINT REVIEW PANEL ADEQUACY OF INFORMATION IN THE ENVIRONMENTAL IMPACT STATEMENT SIERRA CLUB PRAIRIE DECEMBER 16, Introduction The overarching objective of Sierra Club Prairie s participation in the Jackpine Mine Expansion Project (JMEP) Joint Panel Review is to ensure that environmental effects such as water pollution are rigorously examined as a step towards achieving environmental, economic and social sustainability in the Fort McMurray region. Sierra Club Prairie s objective is to ensure that the environmental assessment integrates knowledge of effects, including cumulative effects, of other oil sands and related projects in the Fort McMurray region. The JMEP cannot be assessed as if its environmental effects are isolated from, and independent of, existing and likely development projects in the region. In this submission, Sierra Club Prairie posits that probably the worst single environmentally damaging event that could happen to any oil sands project is for containment of tailings to fail, with a resulting release of toxic tailings into the Athabasca River or tributaries. The question to be asked in the context of this premise and this submission is whether the Environmental Impact Statement submitted by Shell Canada Ltd. for the Jackpine Mine Expansion Project provides adequate information about the risks of a containment failure, the environmental harm that could result, and measures to minimize those risks and mitigate that harm. Sierra Club Prairie explores the risks associated with a failure of containment of a JMEP tailing dam and the potential for serious if not catastrophic harm to aquatic ecosystems and human health posed by a spill of toxic substances into the Athabasca River or tributaries caused by a failure of containment by a tailing dam. The submission reviews the provision of the JMEP terms of reference and requirements of the Canadian Environmental Assessment Act (CEAA) with respect to assessing the environmental effects of malfunctions and accidents, and use of so-called worst-case scenario analyses in recent CEAA and U.S. environmental assessments. Sierra Club Prairie then reviews the adequacy of the information in the JMEP environmental impact statement relating to the risks of a JMEP tailing dam failure. This submission also comments specifically on the adequacy of the information included in the environmental impact statement with respect to assessing the risks of a worst-case scenario for the Jackpine 1

2 Mine Expansion Project in combination with other current and reasonably foreseeable oil sands projects located along the Athabasca River. 2. Jackpine Mine Expansion Project Terms of Reference Sierra Club Prairie s analysis of the adequacy of the information provided in the Environmental Impact Statement is based on the provisions of the Terms of Reference for the Joint Panel Review as well as the Terms of Reference for the preparation of the Environmental Impact Assessment Report. Key provisions relevant to the analysis are outlined below. Joint Panel Review Terms of Reference Part I (Scope of the Project) of the Terms of Reference (TORs) for the JMEP Joint Panel Review state that the scope of the project includes: Constructing a new external tailing disposal area at the southern end of Lease 88 to accommodate the additional volume of tailing produced ; Process facilities that would include... tailing handling and treatment : and Works and undertakings associated with the harmful alteration, disruption or destruction of fish habitat. The scope of the project also includes: All related works and activities including all temporary facilities required for the construction and operation of the above-named facilities, namely:... treatment of wastewaters and waste management Part II (Scope of the Environmental Assessment) states in Article 2 that: The assessment shall include a consideration of the factors outlined in s.16.(1)(a) to (d) and s. 16.(2) of the Canadian Environmental Assessment Act namely: a. the environmental effects of the project, including the effects of any malfunctions or accidents that may occur in connection to the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;... Part III (Scope of the Factors) states in addressing cumulative environmental effects that: The Joint Review Panel shall focus its consideration of cumulative environmental effects on key valued components. Without limiting itself thereto, the following components shall be considered: water quality and quantity, including any potential effects on navigable waters and navigability... Part III further states in addressing accidents and malfunctions that: In considering the environmental effects of malfunctions and accidents, the Joint Review Panel should include potential malfunctions or accidents associated with the following components: tailings management; waste management and disposal;... As well, The environmental assessment 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 malfunction. The environmental assessment should consider the likelihood of occurrence of such accidents or malfunctions. 2

3 Final Terms of Reference: Environmental Impact Assessment (EIA) Report The Final Terms of Reference (TORs) for the Environmental Impact Assessment report include some provisions explicitly requiring worst-case scenario analysis and emergency planning. Those relevant to a worst-case scenario as regards tailing dam failure are highlighted here. Under Part 4 (Project Description and Management Plans) of the TORs, section 4.6 (n) requires that information be provided on the source, quantity and composition of wastewater streams from each component of the proposed operations (e.g., oil sands mining, bitumen extraction, and associated facilities) for all Project conditions, including normal, start-up, worst case and upset conditions Under Part 5 (Environmental Assessment) of the TORs, section (b) requires a discussion of stages or elements of the Project that are sensitive to changes or variability in climate parameters, including frequency and severity of extreme weather events. Discuss what impacts the change to climate parameters may have on elements of the Project that are sensitive to climate parameters; Under Part 7 (Public Health and Safety) of the TORs, subsection (i) requires a summary of Shell s emergency response plan, including prevention and safety measures for accidental release or spill of chemicals to the environment and failures of structures retaining water or fluid wastes. 3. Tailing Dam Failures Tailing Dams fail at unacceptable rates The risk of failure for tailing dams is high relative to the probability of other types of industrial disasters, and tailing dam failures are occurring at an unacceptable 1 rate. Tailing dams have an annual probability of failure of 1 in 700, according to one estimate based on the actual failure rate of tailing dams between 1970 and Failure rates are not improving over time, and failures are not limited to older facilities, but include newly commissioned dams using modern engineering. 3 This translates to a greater than 0.1% chance of failure, which may appear low, but is ten times greater than the probability of failure for a conventional (water) dam, which is 1 in 10,000, or 0.01%. 4 The consequences of tailing dam failures are also much more catastrophic than conventional dam failures; while the failure of a conventional dam may cause severe 1 Davies, Michael, Todd Martin and Peter Lighthall Mine Tailings Dams: When things go Wrong Lexington, KY: Association of State Dam Safety Officials,2000 p : Paper presented at the Tailing Dams 2000 Conference, Las Vegas, Nevada, March 28-30, 2000, p 1. [ Davies ] 2 Ibid. 3 Ibid. 4 Martin, T.E, M.P. Davies, S. Rice, T. Higgs and P.C. Lighthall Stewardship of Tailings Facilities. AMEC Earth & Environmental Limited, Burnaby, B.C. Canada AMEC Simons Ltd., Vancouver. p 9. 3

4 flood damage, the failure of a tailing dam releases highly toxic substances, resulting in both flood damage and contamination of communities and watersheds. Globally there has been one significant tailings impoundment failure per year, many resulting in massive damage, severe economic impacts and, in several cases, loss of life. 5 For example, the widely reported flood of toxic red sludge resulting from the rupture of a aluminum mine tailing dam in Kolontár, Hungary in October 2010, which caused ten deaths and over one hundred burn injuries. 6 In 2000, a spill of cyanide-laden tailings water from a Gold Plant in Baia Mare, Romania contaminated a cross-border river system. In 1994, the release of 600,000 m 3 of tailings from a failed dam in Merriespruit, South Africa killed 17 people. 7 Major tailing accidents are not uncommon in Canada: in 2008, tailings were released during a dam breach at the former Opemiska copper mine near Chapais, Quebec 8 ; in 2004, up to 8, 000 m 3 of tailings spilled at a former mercury mine in Pinchi Lake, BC 9 ; and, in 1991, an iron tailings impoundment breached at the Sullivan Mine in Kimberly, BC. 10 According to data collected from International Commission of Large Dams, 11 there have been at least three major accidents in Canada s oil sands: an accident in 1974 at the Great Canadian Oil Sands (now Suncor) mine due to slope instability; an accident in 1978 at Syncrude s operations due to foundation problems; and, an accident in 1979 at Suncor s retention dam due to slope instability. However, there appears to be no available data for the volume of tailings released or the consequences of these accidents. 12 Large-scale tailing disasters can and do occur. Thus the environmental assessment of the Jackpine Mine Expansion Project should consider the risks of a tailing dam failure and assess the resulting harm to ecosystems and human health that could occur as a result of such a failure. As further detailed in this submission, the Environmental Impact Statement for the JMEP has not included adequate information detailing such risks and harm. Causes of Tailing Dam Failures Tailing dam failures may be caused by a number of different defects and pressures on the structural integrity of tailing containment structures, and result from a combination of human error and environmental factors. 13 The greatest impact is from unusually high precipitation 5 Davies, p 1. 6 Hungary's toxic sludge disaster remembered BBC News, October 5, Davies, p 8. 8 Grand Council of the Crees, The failure of the retaining dyke at the Opemiska Mine near Chapais, 9 Tailings Related Accidents - Failures, Breaches and Mudflows- data collected from International Commission of Large Dams, Bulletin Tailings Dams, Risk of Dangerous Occurrences. Lessons learnt from practical experiences 10 Davies, p Tailings Related Accidents - Failures, Breaches and Mudflows- data collected from International Commission of Large Dams, Bulletin Tailings Dams, Risk of Dangerous Occurrences: Lessons learnt from practical experiences 12 Grant, Jennifer et al. Northern Lifeblood: Empowering Northern Leaders to Protect the Mackenzie River Basin from Oil Sands Risks. July The Pembina Institute [ Grant ]. 13 Ibid. 4

5 events and seismic activity, 14 and it follows, from inadequate preparation for these occurrences in tailing dam planning and management. A review of tailing dam failures concluded that most events could be attributed to easily preventable causes 15 and that many tailings dams are not being designed, constructed and/or operated to adequate standards. 16 While natural phenomena cannot be prevented, they can be planned for, and consideration of the impact of worst-case natural events on a project should be a crucial part of environmental impact assessments. Potential flaws in the design and operation of tailing dams should also be critically assessed based on lessons learned from past, worst-case failures. Experts in the field point out that ignorance of past failures has contributed to subsequent failures of the same nature. Contributing to ignorance is insufficient investment in tailings expertise, and a lack of independent third-party evaluations. 17 The history of tailing dam failures cannot be explained by forces beyond the control of industry. It is a reflection of poor industry practices, and should lead to serious scrutiny of proposed tailings containment projects: There are no unknown loading causes, no mysterious soil mechanics, no substantially different material behaviour and definitely no acceptable failures. In all of the cases of the past thirty years, the necessary knowledge existed to prevent the failure at either the design and/or operating stage. There is lack of design ability, poor stewardship (construction, operating or closure) or a combination of the two, in each and every case history. If basic design and construction considerations are ignored, a tailings dam s candidacy as a potential failure case history is immediate. 18 There are also several factors that might explain why tailing dams fail ten times more often than conventional dams. Generally, more stringent planning is undertaken in the construction of conventional dams, including experienced in-house designers and surveillance engineers, as well as independent third-party reviews. 19 One major difference is that conventional dams are normally owned and operated by public bodies, and are a source of revenue through water supply and hydroelectricity, while tailing dams are owned by mining companies and are viewed as a drain on profits of the operation. 20 This may mean greater incentives in the mining industry to cut corners on safety measures, increasing risks. The timeframe for construction is also a factor in failure. Conventional dams are usually constructed in a single stage in a short time period. Conversely, tailings dams are often constructed in stages or on a continuous basis over many years, which can make assessment 14 Ibid. 15 Davies, p Ibid, p Ibid, p Ibid, p Davies, p Grant. 5

6 and planning more complex. Tailings containment may also last hundreds of years, making it more onerous to predict potential disturbances over the lifetime of containment. 21 The EIS does not include adequate information as to how the higher risks of tailing dam failure would be mitigated for the JMEP. Environmental Effects of Tailing Dam Failures The risks associated with tailing dam failures in the oil sands are classified as extreme under the 2007 Canadian Dam Association guidelines. 22 The category of extreme consequences includes the following scenarios: major loss of critical fish or wildlife habitat, where restoration or in-kind compensation would be impossible; potential for loss of more than 100 lives; possibility for extreme losses affecting critical infrastructure or services; a population residing in the zone that would be inundated by a dam breach. 23 A tailing dam failure in the oil sands would have potentially extreme effects on downstream communities and wildlife habitat in the Athabasca River Basin, but these effects could extend even further downstream into the Peace-Athabasca Delta, Lake Athabasca, the Slave River, Great Slave Lake and the Mackenzie River. Such a tailing dam failure would contaminate surface and groundwater with toxins, including carcinogenic polycyclic aromatic compounds (PACs). In 2003, the Mackenzie River Basin Board noted an accident related to the failure of one of the oil sands tailing ponds could have a catastrophic impact on the aquatic ecosystem of the Mackenzie River Basin due to the size of these lakes and their proximity to the Athabasca River. 24 The Athabasca and Mackenzie River Basins are relatively pristine, and there are few natural areas in the world that are as ecologically significant. The Mackenzie River Basin alone includes interconnected streams and rivers which together cover 1.8 million km 2 (20% of Canada s land mass). 25 Given the scale of potential environmental impacts and the value of the ecosystems that would be damaged, a tailing dam failure in the oil sands could result in catastrophic and irreversible loss to the region and to Canada. The EIS does not include adequate information on the environmental harm that could be caused by a JMEP tailing dam failure. Sierra Club Prairie recommends for example that the EIS include quantitative models for a tailing dam failure that would predict how far downstream in the Athabasca River toxic substances released by a tailing dam failure would extend, as well as predictions as to morbidity and mortality of aquatic and other organisms. Potential Increased Risk of Tailing Dam Failure due to Global Climate Change Global climate change may result in increased probability of extreme weather in the Athabasca River basin resulting in increased frequency of flooding. Increased or more 21 Grant, p Grant, p Grant, footnote Mackenzie River Basin Board State of the Aquatic Ecosystem Report p. iv, cited in Grant at p Grant, p 18. 6

7 intense flooding could increase the risk of containment failure of tailing dams. Global climate change could also increase risks of tailings containment failure by increasing snowmelt volumes, or changing thawing and freezing patterns that alter soil or structural stability. A 2007 Natural Resources Canada report 26 summarizes Canada s vulnerability to climate change during the previous decade primarily through a regional approach. The NRCan report cites studies suggesting an increased probability of extreme [hydrological] conditions [in the prairie provinces], including a greater frequency of flooding and severe drought. 27 For the boreal forest and taiga areas, another cited study concludes that increased drought frequency, including persistent multi-year droughts will result in declining soil water and increased forest fire extent and net area burned. During recent extreme droughts, organic soils have dried and burned with forests, resulting in an almost total loss of vegetation and soil cover, and subsequently the ability to store water locally. Under these conditions, runoff becomes instantaneous, resulting in flash floods. 28 Finally the NRCan report refers to other studies which conclude that: Increasing annual and seasonal temperatures will exacerbate drought conditions... but warmer temperatures also increase the likelihood of extreme rainfall events. 29 The EIS does not include adequate information on the extent to which extreme weather events caused by global climate change would increase the risk and intensity of flooding events in the Athabasca River Basin, thereby potentially increasing the risk of tailing dam failure. Cumulative Effects Assessment relating to Tailing Dam Failures Given the risks and poor track record associated with tailing dam failures, the accidental release of large volumes of tailings is within the scope of reasonably foreseeable malfunctions or accidents with respect to the Jackpine Mine Expansion Project. Moreover, the potential for severe environmental impacts resulting from tailing dams failures exists with respect to many of the numerous oil sands projects in the region. Combined, oil sands tailings lakes cover an area of 170 km 2. There are currently more than million m of tailings that require long-term containment, a volume that will grow 30% to over 1.1 billion m 3 by 2020, and that volume will remain without long-term containment until 2065 based on current projections. 30 The reclamation of toxic tailings has not yet been demonstrated on a commercial scale. Assessment of cumulative environmental effects must consider the potential environmental effects resulting from the failure of numerous dams at the same time. Given that failures are 26 Natural Resources Canada From Impacts to Adaptation: Canada in a Changing Climate Ibid, chapter 7, section Ibid, chapter 7, section Ibid, chapter 7, section News Release ERCB Approves Fort Hills and Syncrude Tailings Pond Plans with Conditions. April 23, 2010, ercb_home/news/news_releases/2010/nr2010_05.aspx in Grant, p 18. 7

8 often triggered by events such as heavy precipitation and seismic activity, it is not unreasonable to consider that more than one tailing dam in the same region could fail at the same time. Given the unprecedented and growing volume of oil sands tailings in close proximity to one of Canada s greatest rivers, the scale of the potential disaster of multiple tailing dams failures can hardly be overstated. Cumulative effects assessment should also consider the increased risk of failure that accumulates with each additional project. Discussing the Deepwater Horizon Blowout, one author comments that the risks of a disaster magnify with the number of times they are taken, and the deep-water business is booming. 31 The same is certainly true for the oil sands business. There are currently dozens of new oil sands projects, or expansions of existing projects, that have been announced or are under construction, 32 multiplying oil sands activity and risks in the coming decades. Environment Commissioner s report on Canada s failure to assess cumulative effects of tar sands projects and inadequacy of Panel TORs A recent report by the Commissioner of the Environment and Sustainable Development examined whether the federal government has considered the cumulative environmental effects of projects in the oil sands region in discharging its responsibilities under CEAA. 33 The report stressed the importance of considering cumulative impacts as part of the environmental assessment process for large-scale projects like the oil sands, and the importance of incorporating mitigation measures at the design and implementation stages of a project in order to avoid significant environmental damages and costs. The report found that incomplete environmental baselines and environmental data monitoring systems hinder the ability of federal authorities to evaluate environmental changes in the oil sands region. There are gaps in environmental data and scientific information related to the potential cumulative impact of oil sands projects on water quantity and quality, fish and fish habitat, land and wildlife, and air. 34 As early as 2004, Environment Canada expressed concern that the rate of oil sands project development was potentially exceeding the ability of the Cumulative Environmental Management Association (CEMA) and the Regional Sustainable Development Strategy to introduce effective management systems to set environmental thresholds or objectives. 35 In the case of the Jackpine Mine Expansion Project, the EIS was prepared in 2007, and there has been significant oil sands development in the four years since then. Development is occurring at such as fast pace that each new EIS cannot fully consider cumulative effects; projects are being announced and approved faster than the cumulative impacts can be evaluated in impact statements. 31 Houck, p Alberta Oil Sands Industry: Quarterly Update. Fall Chapter 2: Assessing Cumulative Environmental Effects of Oil Sands Projects. October Report of the Commissioner of the Environment and Sustainable Development. Office of the Auditor General of Canada. 34 Ibid, p Ibid, p

9 The Attorney General also noted that project Terms of Reference (TORs) are not being utilized to address information gaps. The report found that TORs are generic and do not change substantially from one project to the next. The federal government did not take the opportunity to modify terms of reference in later projects to deal with key concerns previously raised by federal authorities, in areas such as water quantity and quality, fish and fish habitat, land and wildlife, and air. The Attorney General noted In our opinion, federal authorities should have used the sound management practice of adapting terms of reference over time in order to address identified gaps in information being provided to them. 36 Sierra Club Prairie concludes that while the terms of reference for the Environmental Impact Statement and the Joint Panel Review could have included more detailed requirements for worst-case scenario analysis for a failure of tailings containment, nonetheless the TORS are sufficiently clear to require such an analysis in the EIS and careful consideration by the Joint Review Panel. 4. Assessment of Malfunctions, Accidents and Worst-case Scenarios As noted earlier, environmental assessments pursuant to s. 16 of the Canadian Environmental Assessment Act are required to include assessment of the effects of any malfunctions or accidents that may occur in connection to the project. Assessment of the effects of such malfunctions or accidents sometimes includes assessment of the effects associated with a worst-case scenario. Worst-case scenario analysis is explicitly required under environmental assessment laws under the Inuvialuit Final Agreement as well as recently strengthened U.S. federal laws. Worst-case risk assessment must consider both the probability of an event occurring and the severity of the potential effects. The purpose of worst-case scenario analysis is to avoid and mitigate for low-probability catastrophic events such as the BP Deepwater Horizon Oil spill, Enbridge Kalamazoo River spill, Fukushima Daichi nuclear reactor disaster, and Canada s Ocean Ranger disaster. Valuable lessons can be learned from past catastrophic events. For example, in the case of the BP Deepwater Horizon project, the Environmental Impact Statement downplayed the risk of blowouts as negligible and easily addressed by modern technology 37. Investigation into the cause of the blowout revealed that the requirement for a worst-case analysis was not seriously undertaken and that better preparedness for the worst case could have prevented or mitigated the disaster. 38 More broadly: There is today, ever more acutely as we launch more risky ventures with even planetary impacts at stake, a constructive role for explicit worst-case analysis in the decision- 36 Ibid, p Houck, Oliver A. Worst Case and the Deepwater Horizon Blowout: There Ought to Be a Law ELR 11033, [ Houck ]. 38 Ibid. 9

10 making process, ensuring that activities this big are undertaken with eyes wide open and all due preparation. 39 It is clear that rigorous worst-case scenario analysis of tailing dam failure should be an essential part of environmental impact assessments in Canada s oil sands. This section reviews the approach taken to assessing environmental effects associated with worst-case scenarios for four recent joint panel reviews carried out pursuant to the Canadian Environmental Assessment Act: Mackenzie Gas Project Deep Geological Repository for Low and Intermediate Level Nuclear Waste Kearl Oil Sands Project Joslyn North Oil Sands Project Mackenzie Gas Project The Mackenzie Gas Project Joint Panel Review undertook a worst-case scenario analysis for the components of the MGP that would have been constructed in the Inuvialuit Settlement Region. The 1984 Inuvialuit Final Agreement 40 required that the Panel estimate the 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 harvesting). Such a worst-case scenario analysis was not undertaken for components of the MGP located outside the Inuvialuit Settlement Region. 41 The Joint Review Panel identified five worst-case scenarios including: well blowouts of natural gas and natural gas liquids at the three anchor fields; rupture of two gathering system pipelines; and, release of natural gas and natural gas liquids. Proponent commitments to mitigate negative impacts on wildlife harvesting in the Inuvialuit Settlement Region were identified during the process and reported in the Joint Review Panel s report. 42 The value of the loss of wildlife harvest in the Inuvialuit Settlement Region was then estimated for each worst-case scenario, and from that value the potential liability of the Proponents was calculated. Finally, the Joint Review Panel recommended that the National Energy Board include as conditions of any certificate or approvals... the specific commitments... that the Proponents made and evidence of financial responsibility to cover the liability from individual Proponents as described in the estimates for the worst-case scenario Ibid, p Section 13.(11) of the IFA requires an estimate of the 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. 41 Foundation for a Sustainable Northern Future: Report of the Joint Review Panel for the Mackenzie Gas Project December Ibid, pp

11 Deep Geologic Repository for Low and Intermediate Level Radioactive Waste The Environmental Impact Statement (EIS) prepared by Ontario Power Generation for the panel review of the Deep Geologic Repository (DGR) Project included a substantial worstcase scenario analysis pursuant to the requirement to assess possible project malfunctions and accidents required under s.16.(1) of CEAA. The DGR Project s overarching objective with respect to environmental effects and safety is stated as follows 43 : The 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 the public. The DGR Project EIS examined potential environmental effects associated with likely events, but also potential effects due to abnormal events (malfunctions, accidents and malevolent acts) 44. Safety assessments for likelihood and worst-case accident scenarios were set out in the EIS for the pre-closure period of roughly 50 years and the post-closure period. These 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 the only scenarios with potential for significant radiation doses to persons living directly on top of the repository. The EIS considered these scenarios to be very unlikely and any impacts further afield would be much smaller. 45 The EIS also reviewed potential effects of the environment (i.e., natural hazards, climate change) on the DGR Project. The EIS concluded that there is not likely to be residual adverse effects in the case of natural hazards, nor will climate change influence the DGR Project. 46 A specific technical support document (TSD) on malfunctions, accidents and malevolent acts was commissioned as part of the EIS 47. This TSD did not specifically examine potential worst-case scenarios but rather identified events, features or processes that could initiate a malfunction or accident, and determined the credibility of such events, processes or processes before undertaking detailed assessment. The TSD concluded with respect to radiological malfunctions and accidents during the site preparation and construction, operations, and decommissioning phases that radiological doses to humans, (including workers or members of the public and non-human biota do not exceed established dose limits for credible accident scenarios. 48 The TSD similarly concluded with respect to the abandonment and long-term performance that While radiological doses to humans are significantly less than the dose criterion for some scenarios, doses to humans resulting from other scenarios could be about 1 msv/a. However, all scenarios considered are very unlikely and therefore the risk to humans is low Environmental Impact Statement Summary OPG s Deep Geologic Repository Project for Low and Intermediate-Level Waste (March 2011) p Ibid, p Ibid, p Ibid, p AMEC NSS Ltd. Malfunctions, Accidents and Malevolent Acts Technical Support Document March Ibid, p. vi. 49 Ibid. 11

12 With respect to malevolent acts, the TSD concluded that radiological consequences are expected to be bounded by those of malfunctions and accidents. 50 Finally, the TSD concluded that adverse effects from malfunctions, accidents or malevolent acts can be mitigated through specific mitigation measures, preparation and execution of contingency plans and emergency preparedness measures. 51 Kearl Oil Sands Project The Terms of Reference (TORs) for the Joint Review Panel for the Kearl Oil Sands Project required the Panel to assess the factors outlined in s.16.(1)(a) to (d) and s. 16.(2) of CEAA including the effects of any malfunctions or accidents and any cumulative environmental effects that are likely to result in combination with other projects or activities that have been or will be carried out. The Joint Review Panel s report states that such malfunctions and accidents were assessed although the report does not contain any section or analysis directed to this topic. The report does state that the Joint Panel continues to be concerned about the overall tailings performance of the oil sands industry in general; therefore the Joint Panel believes it would be appropriate for the EUB [Alberta Energy Utilities Board] to revisit the tailings criteria initiative Joslyn North Mine Project The Terms of Reference (TORs) for the Joint Review Panel for the Joslyn North Mine Project also required the Panel to assess the effects of any malfunctions or accidents and any cumulative environmental effects. 53 The Joint Review Panel requested information from Total, the Proponent, beyond that provided to the Kearl Oils Sands Project Joint Panel Review. For example, the TORs stated that: The environmental assessment 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 malfunction. The environmental assessment should consider the likelihood of occurrence of such accidents or malfunctions. 54 The Joslyn North Mine Project Joint Review Panel requested more specific information about the probability of accidents and malfunctions of dams and a major tailings spill to such water courses as the Ells River and Athabasca River under low flow, ice and spring flood conditions. 55 Total responded by acknowledging that dam failure could occur as a result of inadequate strength of the foundations or dyke construction materials, seepage and erosion and overtopping, but declared that the likelihood of tailings structure failure was 50 Ibid. 51 Ibid at Ibid. 53 Report of the Joint Review Panel, Joslyn North Mine Project January 2011 Energy Resources Conservation Board and Canadian Environmental Assessment Agency, Appendix Terms of Reference. 54 Ibid, p Ibid. 12

13 minimal. 56 The data and analysis that led to this conclusion is not on the public record, and Total declined to undertake detailed model spill scenarios describing the specific consequences to a tailings containment failure 57 In other words, no assessment of the environmental effects of a failing dam failure was carried out. The Joint Review Panel appears to have accepted this conclusion of minimal likelihood of a tailings containment failure was remote as face value without analysis evident on the public record as well as the Proponent s reasoning that no environmental assessment of a tailing dam failure was necessary. Sierra Club Prairie concludes that there is a growing trend toward making use of worst-case scenario analysis in CEAA assessments of projects where a worst case is plausible and could cause significant adverse environmental effects. Given the unacceptable failure rate of tailing dams globally, and the potentially catastrophic environmental harm that would be caused by a JMEP tailing dam failure, Sierra Club Prairie concludes that an explicit worstcase scenario analysis should be required as part of the assessment of project malfunctions and accidents required under CEAA. 5. Analysis of Jackpine Mine Expansion Project Environmental Impact Statement This section analyzes the adequacy of the information provided in the Environmental Impact Statement for the Jackpine Mine Expansion Project measured against the Terms of Reference and legal requirements. Sierra Club Prairie retained James R. Kuipers, P.E., Consulting Engineer, Kuipers & Associates to review the adequacy of Environmental Impact Statement for the proposed Jackpine Mine Expansion Project with respect to worst-case scenario analysis and cumulative effects on the Athabasca River. Additional analysis of adequacy of information is also provided. The Environmental Impact Statement (EIS) for this project is inadequate to fulfil obligations under the Joint Panel Review Terms of Reference, and CEAA. Specifically, the EIS does not adequately assess the environmental effects of malfunctions and accidents or of cumulative environmental effects, as required under s.16.(1)(a) of CEAA. Nor does the EIS adequately address the Joint Panel TORs requirements that the environmental assessment 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 malfunction. Key points from Mr. Kuiper s report (full text set out in Appendix A) are summarized below: Cumulative Effects The cumulative effects information provided in the Jackpine Mine Expansion Project EIS addresses only past through current operations as of The analysis fails to account for additional new tar sands projects, future tar sands projects, or 56 Report of the Joint Review Panel, Joslyn North Mine Project January 2011 Energy Resources Conservation Board and Canadian Environmental Assessment Agency. p Ibid. 13

14 for other associated, ancillary or separate projects. The analysis in the EIS also only addresses surface water quality issues, and does not address groundwater, noise, visual impacts, dust or system failures or sustainability in terms of cumulative impacts. Although the cumulative effects may have been studied and addressed in more detail by other means such as the purpose of various groups named in the EIS would suggest, no information was provided as to their specific make-up, deliberations or recommendations.... The EIS for the Jackpine Mine Project Expansion proposal must include analysis in the context of the potential for this mine to additionally expand and for other mines, both presently proposed and yet to be proposed, to begin operations in the region. Worst-case scenario analysis -... the EIS fails to contain or discuss any type of risk analysis for the tailings impoundment including consideration of worst-case scenarios. This is surprising given that difficult tailings facility foundations conditions have been noted at similar sites in the area, and similarly in terms of volume of engineered fill, oil sands tailings facilities are amongst the largest earth structures in the world. Tailings facilities in the area have demonstrated a combination of low shear strength and high pore pressure leading to low Factors of Safety. The EIS for the Jackpine Mine Expansion Project proposal must include analysis of potential failures modes that could lead to catastrophic or otherwise significant impacts. The EIS also failed to adequately address specific points in the Final Terms of Reference for the Environmental Impact Assessment Report dealing with worst-case scenario effects and emergency planning as regards tailings dam failure. Section 4.6(n) of the TORs requires information on wastewater streams, including associated facilities and worst case and upset conditions. Tailing dam failure would clearly be within the scope of this section, and should be a key consideration, yet it was not addressed in the EIS. The discussion of tailings management neglects to consider potential environmental effects resulting from unanticipated wastewater discharges caused by a spill or tailings dam breach, let alone the cumulative impact of multiple tailing dams failures in the same region. Section (b) of the TORs requires a discussion of aspects of the project that are sensitive to climate change, including extreme weather events. Given the connection between tailing containment failures and extreme weather events, the impact of climate change on the risk of failure of the JMEP tailing storage facilities should have been a major part of the proponent s assessment under this TOR. Again, the EIS failed to analyze the risk of tailing dam failure, or the potential for extreme weather events to cause multiple tailing dams failures in the same region. The emergency response plan required by Part 7 (i) of the TORs also lacks a meaningful discussion of tailing dam failure, despite the explicit requirement to address accidental release or spill of chemicals to the environment and failures of structures retaining water or fluid wastes. The EIS acknowledges the potential for a spill in a summary manner, and 14

15 notes that the response plan will include a notification system to alert staff and the public in the case of a spill. However, there is no analysis of what the environmental effects of a spill would be, or how effects could be mitigated as part of emergency response. 6. Conclusions and Requests to Joint Review Panel Conclusions Sierra Club Prairie concludes that the information included in the Environmental Impact Statement and Application with respect to the risks of, and potential environmental harm caused by, a failure of containment of tailings by the JMEP is inadequate. The evidence is that tailings dams fail far too frequently. By one estimate, globally, one out of 700 tailing dams experiences a serious failure every year. In the Athabasca oil sands region, 840 million cubic metres of toxic tailings are currently contained by dozens of tailing dams, and the volume of contained tailings is growing. Globally, failure of containment of tailings dams has caused serious, even catastrophic harm to aquatic ecosystems and not infrequently loss of human life. A breach of containment of tailings of one or more oil sands tailings dams, such as those proposed under the Jackpine Mine Expansion Project, would contaminate the Athabasca River and waters further downstream, and could cause serious enduring harm to downstream aquatic ecosystems. Global climate change is increasing the potential for extreme-weather induced flooding in the Athabasca River basin, which could increase the risk of failure of containment of oil sands tailings dams. The Canadian Environmental Assessment Act (CEAA) requires assessment of the environmental effects of malfunctions and accidents associated with a project such as the Jackpine Mine Expansion Project. Given the small but not remote risk of a significant failure of containment by one or more oil sands tailing dams, the risks of such a failure should be quantified, and the possible environmental effects assessed in the environmental impact statement. Given the many tailing dams and dykes in the Athabasca oil sands region and the volumes of tailings contained by these dams and dykes, Sierra Club Prairie argues that the cumulative effects of possible multiple, coincident failures of containment should also be assessed. Worst-case scenario analysis is an environmental assessment tool that has been used under CEAA and in the United States for many projects to reduce the risks of worst-case scenarios and to develop measures to mitigate potential resulting environmental harm. Sierra Club Prairies urges the Joint Review Panel to require that this tool be used for the JMEP Environmental Impact Statement. The Environmental Impact Statement for the Jackpine Mine Expansion Project falls far short in assessing the risks and environmental harm associated with a failure of containment of a Project tailing dam. 15

16 Requests 1. Sierra Club Prairie requests that the Joint Review Panel direct the Proponent to provide additional information in the Environmental Impact Statement to address the environmental effects of possible accidents or malfunctions of the Jackpine Mine Expansion Project, focusing specifically on a worst-case scenario failure of containment of tailings. 2. Sierra Club Prairie requests that the Joint Review Panel direct the Proponent to provide additional information in the Environmental Impact Statement on sensitive elements of the environment (e.g. communities, homes, natural sites of interest, areas of major use, species at risk, protected areas, high-value wildlife habitats) that may be affected in the event of an accident or major malfunction. 3. Sierra Club Prairie requests that the Joint Review Panel direct the Proponent to provide the following additional information relating to a worst-case scenario failure of containment of tailings: a. Quantify the risks associated with possible failures of containment of JMEP tailings separately and in combination with coincident containment failures at other oil sands projects b. Prepare scenarios for worst-case failure of tailings containment at JMEP separately and in combination with coincident containment failures at other oil sands projects c. Provide information on additional risks that global climate change (e.g., flooding caused by extreme weather events) might cause for tailings containment d. Prepare models on the nature, extent and intensity of adverse environmental effects that could result from the above scenarios e. Assess the significance of the adverse environmental effects f. Develop measures to reduce the risks of a worst-case scenario failure of tailings containment g. Develop measures to mitigate adverse environmental effects that could result from a worst-case scenario failure of tailings containment 4. Sierra Club Prairie requests that the Joint Review Panel convene a workshop of independent tailings management experts, Proponent representatives and interested participants to review the additional information and advise the Panel on its results and conclusions. 16

17 APPENDIX MEMORANDUM FROM JIM KUIPERS December 11, 2011 To: From: Subject: Sierra Club Canada Prairie Chapter James R. Kuipers, P.E., Consulting Engineer, Kuipers & Associates Review of Adequacy of Environmental Impact Statement for Proposed Jackpine Mine Expansion Project Please find the following comments developed on behalf of the Sierra Club Canada Prairie Chapter concerning the Jackpine Mine Expansion Project. As requested, our comments focus on the adequacy of the information contained in the Environmental Impact Statement (EIS) prepared for the proposed expansion relating to worst-case scenario analysis and on information relating to cumulative effects on the Athabasca River. Qualifications and Background Kuipers & Associates is an engineering group based in Montana, United States of America, with more than 30 years of experience in the mining industry including working on mining environmental aspects of projects including engineering design, permitting, operations, reclamation and closure, financial assurance, compliance and conflict resolution. Kuipers & Associates has an extensive mining operations background and has worked on the assessment of numerous aspects of cumulative impacts and worst-case scenarios during the permitting, operations and reclamation/closure stages at dozens of projects in the U.S., Canada and elsewhere. Kuipers & Associates has specialized since 1996 in providing technical engineering and science support to a variety of non-governmental public interest organizations as well as local, state and provincial, federal and tribal/first Nation governments on mining environmental and other natural resource extraction issues. Kuipers & Associates has participated in the review of more than 100 mining related environmental assessment and maintains an extensive library of mining related environmental review documents (more than 300 volumes plus supporting documents). We have conducted extensive analysis of environmental assessments with respect to mineralogy and geochemistry, hydrology, meteorology, geotechnical, modeling and mitigation measures and their effectiveness. We have published our work in a document titled Comparison of Predicted and Actual Water Quality at Hardrock Mines: The reliability of predictions in Environmental Impact Statements (Kuipers et al, 2006). We currently provide technical assistance to the U.S. Environmental Protection Agency (EPA) in the review of environmental assessments at mine sites and in the development of EPA s mine cleanup and financial assurance guidance. Our work also includes publication of Predicting Water Quality at Hardrock Mines:Methods and Models, Uncertainties, and State-of-the-Art (Maest et al, 2005). 17

18 Our comments are based on our breadth of experience as well as consideration of the general and site-specific nature of the particular project being proposed. Our comments are also based on our experience working with Canada s particular approach to environmental assessment, and in particular our work with fellow professional consulting engineers based in Canada with whom we have participated in the address of other similar projects using accepted standard engineering techniques to address potential issues such as are posed by the project and addressed further in these comments. Basis for Comments Our comments are based upon technical, regulatory and socio-ethical considerations. From a technical standpoint it is clearly recognized that tailings storage facilities represent the most significant environmental liability associated with mining operations. This is compounded by the fact that those facilities must be designed, constructed, operated and maintained, and closed in perpetuity in a manner that ensures their safety as well as physical and environmental integrity. While geotechnical stability relative to catastrophic dam collapse is widely recognized as a potential tailings facility failure mode, other impacts such as those to groundwater quality due to tailings seepage, air impacts from dust, surface water from runoff or storm-events, and concerns about sustainable post-mining land use are other types of failures which can result in significant human safety related and environmental impacts. In response a number of design practice developments and industry initiatives have been developed to address the potential for incidents which might result in the various impacts which have been identified. (AMEC, 2002) According to the Office of the Auditor General of Canada (Assessing Cumulative Environmental Effects of Oil Sands Projects, 2011), Failure to predict cumulative environmental effects and incorporate appropriate mitigation measures into the design and implementation of a project before the project is constructed can lead to significant environmental degradation as well as increased costs. Acknowledgement of the relationship between consideration of effects and identification of mitigation measures is extremely important and widely recognized. Without acknowledging the potential for impacts it is unlikely and improbable that means of mitigating potential impacts will either be recognized or incorporated. The precautionary principle is an approach to risk management that has been developed in circumstances of scientific uncertainty, reflecting the need to identify and take corrective measures in the face of potentially serious risk despite uncertainty or incomplete data. The most broadly accepted definition of the Precautionary Principle is Principle #15 of the June 1992, Declaration of the Rio Conference on Environment and Development, which reads: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. This definition of the precautionary principle is also contained in the 1999 Canadian Environmental Protection Act (CEPA 1999) which reads: Whereas the Government of Canada is committed to implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental 18

19 degradation. As one of the first countries in the world to adopt and implement the precautionary principle it would be expected that Canadian environmental permitting documents would embody and stress the Principle, particularly as it relates to difficult to assess and predict cumulative and/or worst case effects. Finally, we have been participants in many multi-stakeholder efforts including the development of the document Seven Questions to Sustainability: How to Assess the Contribution of Mining and Minerals Activities. In that document Mining, Minerals and Sustainable Development North America set out to develop practical principles, criteria and/or indicators that could be used to guide or test mining and minerals activities in terms of their compatibility with sustainable development. The report recognizes that From a mining/mineral operation perspective, there needs to be an accounting of the operation s contribution (positive and negative) distinct from those that result from other human activities in the same area or from independent ecological effects and events. This can be a difficult challenge because at a given site, many nonmining/mineral activities may be influencing social, cultural, economic and environmental conditions. The report also says that From quite a different perspective, ecosystem analysts have recognized the need to understand the whole system condition. They have come to understand that if a system happens to be close to a threshold, a small increase in stress can cause a catastrophic system collapse. This perspective has led to calls for, and development of, cumulative impacts assessment techniques as well as to greater emphasis on the precautionary principle. Findings We have reviewed the EIS including the original Application for the Approval of the Jackpine Mine Expansion Project (Shell Canada Limited, December 2007) and subsequent update reports and supplemental information reports. Cumulative Effects With respect to cumulative effects the EIS contains the following assessment (p19-43): The cumulative effects of focal projects in the Muskeg River watershed for 2006 were assessed as follows: There appear to be some effects on watershed hydrology. Most notable are large differences in two of the four hydrologic measurement endpoints (mean winter discharge and open-water season minimum daily discharge) when compared between potentially influenced conditions and estimated reference conditions. It must be noted that these differences have been estimated under the assumption that all Aurora Clean Water Diversion discharge waters would not have entered the Muskeg River under reference conditions (please see the RAMP 2006 Technical report for details). There is little evidence of effects on benthic invertebrate communities. Values of all benthic invertebrate community measurement endpoints in 2006 at all reaches sampled in the Muskeg River watershed were within the normal range of values observed from regional baseline 19

20 reaches. There continues to be consistency across years in values of all benthic invertebrate community measurement endpoints with respect to regional baseline reaches. In addition, there may be little impact to benthic invertebrate communities in the Muskeg River watershed from changes in sediment quality. There is insufficient information regarding the influence of focal project activities on fish utilizing the Muskeg River during the spring spawning season given the few years of information available from Muskeg River\ fish fence studies. The results of the sentinel fish species survey indicate there are no clear differences in sculpin population measurement endpoints between reference and potentially influenced sites on the Muskeg River. No ASL measurement endpoints in 2006 had concentrations that were significantly different than in previous years, indicating that there has been no significant change in the overall chemistry of the 50 RAMP ASLs in 2006 compared to previous years. Based on these results, there is no evidence to conclude that there have been any significant changes in lake chemistry over the ASLs. Worst-Case Impacts The only mention of worst-case analysis found in the EIS consisted of the following: The Wildlife Health Risk Assessment was a conventional risk assessment, but the worst-case conditions were emphasized to ensure that risks were not underestimated. (p17-23). The EIA does not mention the actual worst-case conditions considered in the risk assessment. The only mention of accidents found in the EIA consisted of: Accidental spills from pipeline ruptures or vehicle accidents and failure of retention structures will be handled using best management practices. Project activities will follow safety protocols designed to limit accidents and reduce effects if an accident occurs, and responding to motor vehicle accidents on Highway 63. The EIA did contain the following with respect to potential geotechnical failures (p5-23): A geotechnical analysis of mine slopes considered the potential failure mechanisms that might be present in an oil sands mining operation. These mechanisms include: slumping of saturated glacial materials sliding on weak layers at residual strength flows in rich oil sands ore rapid loading of weak surficial materials slope instability of the external storage areas The analysis did not identify any major instability that could threaten the integrity of the current mine plans for highwall, overburden or interburden storage layouts, which is supported by operational experience. The failure mechanism analysis shows that the most important stability 20