After Obed: The Path to Better Dam Safety Regulation

December 1, 2017

Wild Lands Advocate article by Nick Pink, Conservation Specialist

A pdf version of this article is available here.

I n September’s Wild Lands Advocate, “Countdown to Disaster: The Obed Mine Spill” outlined the October 2013 tailings spill at the Obed Mountain Coal Mine, near Edson, Alberta. The article focused on the events that led up to the spill and its environmental impacts. It ended with a hopeful comment that, perhaps out of this disaster, we might have learned lessons that could prevent a similar event from occurring in the future. Some will applaud the good news that we haven’t seen a disaster on Obed’s scale in the last four years. This is certainly positive. But, as the Obed case underlined, the ability to prevent such catastrophic events depends in part on the regulatory process. It depends on companies carrying out the obligations and duties established by the regulator. It depends as well on the regulator ensuring that dam safety requirements are met initially, that they are followed during a tailings facility’s lifetime, and that necessary restoration/reclamation measures are implemented after a mine closes. Here I want to consider if regulatory safeguards and procedures have been strengthened since the Obed spill to try to minimize further the likelihood of similar dam failures occurring.

The Weaknesses in the Regulatory Process

To get a sense of how the regulation of dams has changed since the Obed spill, we can take a look at what deficiencies existed. In a March 2015 report, the Auditor General of Alberta released the results of the audit of the then-current regulatory system in place to regulate dam safety. The audit took place during the Obed spill and a subsequent transition period during which the responsibility of dam regulation was being transferred from the Department of Environment and Sustainable Resources Development (ESRD) to the AER. The findings were… damning.

The Auditor General concluded that ESRD did “not have adequate systems to regulate dam safety in Alberta.” So insufficient was the information available to the department’s senior executive that the Deputy Minister could not assure Albertans that his department was regulating dams in the province appropriately. “At the most basic level,” the Auditor General observed, “reporting should allow important questions to be answered.” Those questions were ones about whether the department, through its own work and the information it received from dam owners, could come to a confident conclusion about the safety of dams. They were questions about whether risks identified demanded that changes be made to regulatory activities. That basic level of reporting didn’t exist. When it came to dam safety in Alberta there were:

no performance metrics,
no results analysis,
no identification of areas for future improvement.

When it came to process, Dam Safety officials weren’t required to document their work. While they attended inspections and reviewed information from dam owners there was insufficient documentary evidence to recommend if dams were being regulated well.. It’s unsettling, if not shocking, to read in this respect that “the nature, frequency and the quality of this work cannot be verified appropriately, either by supervisors or outside scrutiny, as documentary evidence is lacking.” ESRD received some credit from the Auditor General for having a registry of dams. But when it came to the “completeness, accuracy and sustainability” of this record the registry was “lacking.” Further to this the Auditor General concluded: “At present, the database is not updated appropriately, information is missing, and is not being used to its full potential. For example, it is capable of but is not used to track inspections and deficiencies.”.

Another weakness identified by the Auditor General rested in the fact that the department’s regulatory activities were shaped primarily by what dam owners concluded about the consequences of their facilities. The regulated, in other words, told the regulator what the consequence rating of dams should be. “If the consequence rating for a dam is not significant or very high,” the Auditor General discovered, “Dam Safety’s reporting requirements range from minimal to none.” Given the nature of the regulatory process, it wasn’t surprising to read next that the audit identified dams and tailings ponds with outdated consequence ratings. Outdated ratings increased the risk that the department was carrying out an appropriate level of monitoring.

Specific to coal mines, the report states bluntly that “coal mine tailings ponds have not been appropriately monitored by Dam Safety.” The majority of coal mines tailings ponds hadn’t been inspected since the 1980s and 1990s. This appears to be due to an inadequate “consequence rating” system that effectively ignored dams that were not rated as “significant” or “very high” consequence. It is unclear what the consequence rating of the Red/Green Pit at Obed – where the October 31, 2013 failure occurred – was prior to the spill, but today it is listed as “low”.

Other key findings observed by the auditor were that the public’s ability to obtain information relating to dam safety is limited, as was regulatory oversight. Locations, safety precautions, and emergency procedures were all formerly available to the public but were removed at the time of this report.

The Auditor General made two key recommendations after this audit: 1) Develop a Plan to Regulate Dams and 2) Improve Regulatory Activities. These recommendations were stated as crucial in demonstrating regulatory responsibility and maintaining accountability to the public. Where are they now?

In April 2014 the Alberta Energy Regulator assumed relate authority over oil/ gas/coal related energy dams. To the AER’s credit, they immediately responded to the Auditor General’s report and committed to incorporating the recommendations. That is great news – but have they done it? In many ways they do appear to be on track. For example, the AER have since announced that they have inspected all of the dams they regulate. On the ground, they have implemented specialized dam inspection training for inspectors and a more rigorous new dam assessment process. They have released an interactive “Dam and Pond Map” tool that allows you to view said dams in Alberta. They have released 2015 Dam Safety Inspection Results and 2016 Dam Safety Inspection & Audit Results. The rudimentary consequence system rating for each dam has been supplemented with an AER assessment that rates the operator’s safety system and performance. They have created a dam safety registry and update it regularly with inspection findings. But as I look at each one of these initiatives the same comment keeps coming to mind: prove it to me. As someone concerned about how these facilities are being regulated, I want to see how these facilities are being regulated. Almost every public facing initiative could be, should be, more informative. The 2015 Dam Safety Inspection Results is half a page and states that 99 of 100 containment structures were “satisfactory.” The 2016 Dam Safety Inspection & Audit Results is one page. The AER assessments and dam safety registry are not currently public and – I am told by AER Dam Safety – may not ever be. The Auditor General recommended that Alberta Environment and Parks “develop a plan to regulate dams and report on the results of its regulatory activities” (my emphasis). One wonders if when that recommendation was made the Auditor General imagined that one page summaries would be sufficient to fulfill the recommendation’s intent.

Even minor successes, such as the mapping tool, have too little info to be of much use. Knowing where a dam sits along with what and how much fluids/sediments it contains is only so helpful. When I asked the AER when we might see an update to this tool they responded that they are aiming for the end of 2018. What will they be adding? Maybe something to do with dam performance or regulatory findings, they aren’t sure yet.

The Auditor General stated that one of the implications of limiting information available to the public is that the “public cannot hold the department accountable for its regulatory responsibilities.” For us to ensure our regulatory agencies are doing what they need to do to protect human and environmental health, we can’t just be taking their word for it, we need access to pertinent information. The lack of information and documentary evidence sat at the heart of the Auditor General’s 2015 critique of the dam safety regulatory system If the AER is competently doing a better regulatory job behind the scenes then I would hope they would be willing to share that good news in a more transparent manner with Albertans. In the March 2015 report the Auditor General, under the heading “What needs to be done” wrote that improving Alberta’s systems for regulating dam safety should begin with: “a reliable registry, a plan for carrying out that work, and informative reporting on dam safety in Alberta. Of critical importance, the department must also document its regulatory activities. Without this evidence, the department can’t prove it is doing what it should and fully support any conclusions that it makes regarding dam safety.” It’s not too much to ask of the AER to offer Albertans a comprehensive accounting of what they have done to implement the Auditor General’s important recommendations.