Appeal launched by CNRL in tailings pond bird deaths rejected by Alberta regulator

CBC

2 days ago

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Canadian Natural Resources Ltd. has lost its appeal against a $278,000 fine it faced for the death of hundreds of birds at a northern Alberta mine.
Alberta Energy Regulator confirmed its administrative penalty against the Calgary-based oilsands operator for failing to destroy an island that formed inside one of its tailings ponds, in a decision issued last week.
The penalty stems from a 2022 incident at CNRL's Horizon mine, about 60 kilometres north of Fort McMurray, Alta., when hundreds of gulls were coated with bitumen and died.
The regulator dismissed the company's claims that the fine should be reduced and reaffirmed that the major oilsands operator had failed in its regulatory duty to protect birds from the bitumen-contaminated waters.
The incident is among a string of high-profile bird deaths in the vast expanse of tailings ponds within Alberta's oilsands, incidents that have prompted rigid regulatory measures aimed at protecting bird species from their toxic waters.
The incident happened in spring of 2022 when workers discovered birds on the island in an area known as Tar River Valley on the north side of the Horizon mine.
The island had taken shape the previous spring, at the centre of a tailings pond, and re-emerged the following year.
Despite hazing attempts by CNRL staff, the small stretch of land soon became a nesting site for colonies of birds.
By May 21, 2022, CNRL workers counted a single Canada goose nest and 271 California gull nests along its beaches.
The emergence of the island and the presence of nests were reported to the regulator in June, but the regulator was told that there was no immediate threat to the birds.
Within weeks, the regulator was informed of the first deaths.
On July 12, the company discovered about 60 to 70 oiled California gull chicks on site. By the end of summer, more than 400 California gulls died from exposure to the contaminated water.
The situation continued until Aug. 4, when the surviving chicks, which had hatched in the tailings pond, were old enough to fly away. The island was destroyed that September.
A contested timeline
CNRL was convicted last year of a single count under the Environmental Protection and Enhancement Act.
The contravention against CNRL had been deemed "major" due to the length of time the company left wildlife exposed to the danger and the company's lack of due diligence in responding to the problems.
The operator launched an appeal in February, a legal claim that contested the timeline of the contravention.
The Calgary-based operator took responsibility for the bird deaths but took issue with how the penalty had been calculated.
CNRL argued the fine should be reduced to $46,750.
The company's argument was based on a narrow interpretation of Section 155 of the Environmental Protection and Enhancement Act.
Lawyers for the company contended that a violation only occurred on the 13 days when birds were actually found oiled, not the 76 days from when the nests were first discovered.
CNRL also argued that portions of the penalty were beyond the two-year statue of limitations for such charges.
The AER hearing panel rejected the company's appeal, writing that it was "not convinced" by the company's legal arguments. AER said the contravention was a continuous one.
The panel found that Section 155 is intended to be interpreted broadly, meaning the contravention began when CNRL failed to ensure the hazardous substance would not come into contact with wildlife, not just when the contact occurred.
The panel also ruled that the penalty was issued within the two-year limitation period, as the contravention continued until the last day the birds were present.
Ultimately, the panel concluded that the penalty was appropriate and dismissed the appeal.
The regulator noted that the fine had already been reduced in earlier conversations with company officials, based on efforts CNRL had made to mitigate similar incidents in the future.
"We are not persuaded that the circumstances of this contravention, including response actions taken by Canadian Natural, merit further reductions to the penalty," the decision reads.
"We believe that the re-emergence of the island in 2022 and Canadian Natural's failure to remove it before birds nested on it in May 2022 were the key elements of this contravention, as indicated in the notice of administrative penalty, and that this stands against any further reduction of the penalty.
"The penalty is appropriate and should not be changed."