Syncrude - The day of reckoning hath not come...yet

On Friday, Syncrude and its new lawyer Jack Marshall appeared in St. Albert provincial court (just outside Edmonton) requested that the company's sentencing for the deaths of migrating waterfowl in its tailings ponds be adjourned. The company was convicted back on June 25th, 2010 under the Migratory Birds Convention Act for the deaths of 1600 ducks in April 2008 (my posting here). Originally, sentencing was to take place on August 20th, but Syncrude said that it has requested the adjournment because it has hired a new team of lawyers to respresent its interests through the "creative sentencing" phase of the case. During the trial phase of the case, Edmonton attorney Robert White represented Syncrude, however, apparently other clients now require his time and efforts.

As it stands now, Syncrude is discussing with both federal and provincial prosecutors about a creative sentence where assessed fines can be donated to conservation projects or research initiatives or other organizations. In this case, the fines could be used to improve the situation for migratory birds. If the penalties assessed in this case were to follow the letter of the law, the federal charges could bring a fine of $300,000, which could be applied per bird, for a total of as much as $481 million (extremely unlikely), with the provincial price tag ringing in at a maximum of $500,000.

Syncrude was expected to use the Kienapple principle; under that decision, the Supreme Court of Canada established that an accused cannot be convicted of multiple offences when they arise out of the same conduct or action; this basically protects Canadians from being punished twice for a single offence. The Kienapple decision was made when in 1974 during the Kienapple v. The Queen case when the accused was charged with rape and unlawful sexual intercourse with a female under 14 years of age. At trial, he was convicted on both charges, however, the conviction for unlawful sexual intercourse was overturned on appeal to the Supreme Court of Canada. The use of this defence could become moot if Syncrude and the prosecutors agree on a creative sentence.

Just in case you forgot, I did have three creative sentence options as follows:

1.) Require the three top executives of Syncrude to swim or wade across one of the tailings ponds with no protective gear.

2.) Require the three top executives of Syncrude to drink one glass of water from the tailings pond.

3.) Require the three top executives to publicly re-enact the deaths of the waterfowl (since the death of one of the birds was caught on video) after which they will recite in unison an apology to the families of the waterfowl killed in the incident.

Now we have to wait until October to see if Crown prosecutors are as creative as I am.

References:

http://www.cbc.ca/canada/calgary/story/2010/08/20/edmonton-syncrude-case-adjourned.html?ref=rss

http://www.edmontonjournal.com/life/Syncrude+sentencing/3423121/story.html

Looking for a "Creative Penalty" for Syncrude

Earlier in June, I had a post about the court case in Alberta that involved charges that had been laid against Syncrude's in the death of 1600 waterfowl. Last Friday, Provincial Court Judge Ken Tjsovold released his verdict in the case. He found that Syncrude was responsible for the tailings ponds where the dead and dying ducks were found and that Syncrude did not act with due diligence in their efforts to ensure that migrating waterfowl did not land in the 12 square kilometre Aurora tailings pond that contained a toxic soup of water, sediment, heavy metals and bitumen. From the decision document, here is the description of the tailings pond:

"The tailings include water, sand and bitumen. When deposited, the tailings still retain heat from the extraction process so ice on the Basin will melt before ice on nearby natural water bodies. Bitumen is found throughout the pond in strands or lumps. It is also found in a mat of the type that trapped the waterfowl on April 28, 2008. The mat was described as being several inches thick, viscous and cohesive with the consistency of a frothy roofing tar. It moves within the pond and eventually sinks, taking birds with it in this case. The mat found on April 28, 2008 covered a significant part of the pond. "

From the same document, here's what happens to the birds when the land on the ponds:

"A significant amount of the bitumen in tar sands, probably between 3 and 10%, cannot be recovered and ends up in tailings ponds. Bitumen mat on the surface of the tailings pond can trap the waterfowl that land on it and the birds will eventually sink with the bitumen. As bitumen contamination increases, birds lose buoyancy and the insulating effect of feathers. There is a loss of the feathers’ waterproofing, leading to hypothermia or drowning. Birds will lose their ability to fly. A heavily oiled bird will almost certainly die...

Birds that attempt to preen bitumen from their feathers and those that forage on the shores of the pond may ingest bitumen which is toxic to them. Even a light oiling can interfere with a bird’s reproductive abilities. Relatively small amounts of some petroleum products may also result in high levels of mortality for bird embryos."

Sounds lovely doesn't it? Here's Syncrude's defence to the provincial charge:

"Respecting the provincial charge, Syncrude argues that:

1. By adding the word “fail” to the charge, the Crown has alleged an offence unknown to law.

2. The word “fail” imposes on the Crown the obligation to prove Syncrude’s conscious dereliction of the duty to ensure that a harmful substance did not come into contact with birds.

3. The Crown has failed to prove that Syncrude did “keep” or “store” a hazardous substance.

4. The Crown has failed to prove that a hazardous substance did “come into contact with” or “contaminate” any animals."

You've got to love how lawyers can spin these things. I particularly like points three and four. I guess no birds died and there was no bitumen kept or stored in the tailings ponds that the non-existent birds didn't die in! In the words of Syncrude's lawyer, the bitumen had been "disposed of" by the company; I guess once the waste bitumen left their upgrader, it's like it never existed.

Fortunately, Judge Tjosvold didn't see things the way the defence lawyer saw them. Syncrude was found guilty of two charges: a charge of failing to prevent a toxic substance from harming wildlife under the provincial act and a federal charge of depositing a substance that is harmful to migratory birds. Judge Tjosvold noted in his ruling that Syncrude simply did not do enough to ensure the safety of the birds. They had inadequate staffing levels and vehicles for bird deterrence and were weeks late in deploying bird deterrent equipment.

The federal charges could bring a fine of $300,000, which could be applied per bird, for a total of as much as $481 million (extremely unlikely), with the provincial price tag ringing in at a maximum of $500,000.

What I found quite interesting was that Alberta Provincial Crown prosecutor Susan McRory said the prosecution wants to pursue a “creative” sentence in this case. In light of that, I have come up with three suggestions for a "creative" sentence:

1.) Require the three top executives of Syncrude to swim or wade across one of the tailings ponds with no protective gear.

2.) Require the three top executives of Syncrude to drink one glass of water from the tailings pond.

3.) Require the three top executives to publicly re-enact the deaths of the waterfowl (since the death of one of the birds was caught on video) after which they will recite in unison an apology to the families of the waterfowl killed in the incident.

You don't need to thank me for my suggestions, Ms. McRory, but credit given in a mainstream newspaper would be nice.

By the way, Syncrude's lawyer, Mr. Robert White, is recommending that his client appeal the verdict. Lawyers will return to the courtroom on August 20th, 2010 to argue whether Syncrude should be convicted on one or two charges.

June 25th - A Special Day for Syncrude

In light of the recent ecological disaster related to oil industry activity in the Gulf of Mexico, I thought I'd post about a serious issue that's facing Canada's own oil industry.

A news item from May 2010 that did not receive a lot of coverage in the national media is the court case in Alberta where Syncrude has been charged under Canada's Migratory Bird Act for the deaths of over 1600 migrating ducks in their Aurora Project tailing pond on April 28th, 2008. Initial reports suggested that only 500 ducks had died, however, as time went on, it became apparent that the deaths totalled more than triple the original estimate. It took both the Alberta and Federal governments nearly 9 months to lay charges in this case. The trial began on March 1 in St. Alberta just north of Edmonton and ended 2 1/2 months later on May 12th, 2010.

The Syncrude tailings ponds are used to store the water, sediment, toxic heavy metals and bitumen that result from the tar sands washing process; the hot water washing process is used to separate the viscous crude oil from the sand that contains the tar. The Syncrude Tailings Dam, the largest barrage dam by volume in the world, surrounds the tailings ponds; roughly 500,000 tons of tailings are produced daily. Currently, the tailings ponds in the Fort McMurray area cover over 130 square kilometres according to CTV. Syncrude hopes that the tailing ponds can be reclaimed by 2023 although the following screen caps from Google Earth show that reclamation will be, at the very least, a daunting task because of the gargantuan size and the rather toxic content of the ponds.

Here is the Syncrude Aurora mine where the bird deaths took place. Notice that the eye altitude on the photo is 26.7 kilometres. The width of the roads on the photo give some sense of the scale of the ponds:

Here is a Google Earth screen cap showing both the Syncrude Mildred Lake and Suncor operations just north of Fort McMurray. The eye altitude on this photo is 46.87 kilometres (20 kilometres higher than the first photo) so the tailing ponds are actually far larger than at the Aurora site. You can also get a sense of the areal extent of boreal forest that has been destroyed by the mining process:

Generally, to discourage migrating water fowl from landing on the tailings ponds, propane-fired air cannons are used. Here is the webpage that outlines Syncrude's Waterfowl Protection program. On the day in question back in April 2008, the air cannons were not functioning, allegedly because heavy snowfall resulted in a deployment delay. When the birds landed in the ponds, they became entrapped by the floating bitumen and could not escape. The birds either died by immediate drowning or struggled to get out of the toxic soup that entrapped them until they died in misery some time later. Syncrude also claims that a shortage of personnel and vehicles prevented timely setup of waterfowl deterrents. In fact, Syncrude's Bird and Ecology Team originally consisted of 13 members and had been allowed to dwindle to only 8 members because of attrition, many of whom apparently were not on site at the time of the incident. As well, only one of the teams four trucks were available. It's hard to imagine how such a mammoth operation had a shortage of both vehicles and personnel but I guess it's all in how Syncrude sets its priorities.

Robert White, the lawyer for Syncrude, told Judge Ken Tjosvold, that the matter should have been handled in provincial court. He claimed that "this was a denial of fairness, justice, common sense and decency". I'm sure that each and every one of the 1600 birds would agree with his statement. Mr. White also claimed that under current regulations, there is a zero tolerance for bird deaths. Here is another of his comments:

"If, therefore, Syncrude is guilty of this crime, the government is complicit and the industry is doomed...I am not sure everyone has understood those are the stakes in this case. It's because, first of all, we didn't let anything loose into the environment, and second, if the Crown can make this statute say what it doesn't, we're done. If by having a tailings pond we're guilty of this charge, we have to stop having tailings ponds...There would be two options: break the law (by operating tailings ponds that would inevitably kill birds) or shut down."

In other words, if the judge finds Syncrude guilty, even one bird death could potentially lead to the laying of additional charges in the future since, as the law stands now, there is a zero tolerance for waterfowl deaths. Basically, the result of a guilty verdict would be that continued operation of the tailings ponds would expose Syncrude to unestimable liabilities because they could potentially be continuously in breach of the law. Mr. White's comments make it seem as though the oil sands industry is holding itself hostage to the demands of the courts which, in reality, may not really be that far from the truth.

Judge Tjosvold expects that he will hand down his final ruling on June 25th, 2010. If found guilty, the Syncrude case will set a precedent for future charges against other oil sands operators including CNRL and Suncor who also have tailings ponds associated with their oil sands operations. It could also mean that every time in the future that there are water fowl deaths associated with these tailings ponds, additional charges could be laid.

Under the Alberta Environmental Protection and Enhancement Act, the maximum penalty is $500,000 and under the Canadian Migratory Birds Convention Act the maximum fine would be $300,000 and six months imprisonment for company executives. The fact that prison sentences are a possibility has to send cold chills down the spines of Syncrude executives although I suspect it is highly unlikely any of them would cast their shadow anywhere near a federal facility.

It will be interesting to see the final outcome of this case, especially in light of the fact that it will set a precedent for all present and future operations in Canada's tar sands.

I'll be keeping an eye on the outcome.

References:

Vancouver Sun

Yahoo Finance News