Canadians may soon know more about the chemicals being used to extract bitumen from Alberta’s tar sands, thanks to West Coast Environmental Law and our colleagues at Environmental Defence and the Association Québécoise de Lutte Contre la Pollution Atmosphérique (AQLPA).
But, unless the federal government can be persuaded to drop its narrow interpretation of pollution disclosure rules, Environment Canada won’t be requiring oil and gas companies to provide information about what chemicals are used in hydraulic fracturing (fracking). This means that most Canadians will have little to no knowledge of the potentially harmful and toxic chemicals being pumped into the ground in the fracking process, The federal government is consulting with the public until February 8th, 2014: this is your chance to tell them that Canadians deserve to know what’s being pumped into the ground.
The story to date
In 2010 West Coast, Environmental Defence and AQLPA filed an environmental petition with Environment Canada asking that oil and gas companies be required to report on tar sands and fracking chemicals through the Canadian government's National Pollution Release Inventory (NPRI). The NPRI requires companies with more than 10 employees that produce certain hazardous substances to report on the quantities that they release into the environment, if they exceed certain levels (“thresholds”).
In many cases, oil and gas companies have not been reporting the release of chemicals, either because they are below the “thresholds” for reporting, or because of an exemption for “the exploration of oil or gas, or the drilling of oil or gas wells.”
We requested that the NPRI notice clarify that reporting for fracking and tar sands chemicals should be included:
Each year, Environment Canada publishes the criteria for reporting releases to the NPRI in the Canada Gazette. … While there has not been disclosure by companies to date regarding which substances are being used in fracking fluid, it is reasonable to assume they are similar to those being used in the United States. … 27 chemicals identified in the U.S. that are used in fracking fluid and have human health impacts are listed in … NPRI notice. Furthermore, while tar sands companies have not disclosed the specific solvents being used for in situ solvent-assisted extraction, many organic solvents are listed in Schedule 1 (benzene, acetaldehyde, toluene, hexane, etc.). …
While natural resource extraction is an area of provincial jurisdiction, CEPA provides a clear responsibility for the federal government to take action regarding the release of harmful substances and to ensure transparency about what quantities and types of substances are being used for fracking and in situ tar sands extraction. As these processes become more widely-used, it will be essential for the federal government to understand this issue in order to meet its duties to protect water resources under the Fisheries Act and uphold its fiduciary duty to Aboriginal Peoples.
In an initial response to our request, dated 25 October 2011, the Minister of Environment confirmed that both hydraulic fracturing and in situ Tar Sands operations are covered by the NPRI requirements:
Since there is no specific exemption related to shale gas or solvent-assisted in-situ oilsands operations, all shale gas and in-situ oilsands facilities are required to report if they meet the NPRI criteria. However, pre-production facilities (i.e. those in pilot phase or in exploration or drilling phase) may not meet the NPRI requirements due to the exclusion of oil and gas exploration and drilling activities, and once in production they may not trigger the 20,000 employee-hour (i.e. 10-employee) threshold for reporting on substances other than air pollutants. In addition, under the NPRI, reporting for a particular substance is required only if that substance is listed in the NPRI notice and if the applicable threshold for that substance is met.
In other words, the act of drilling the well is exempted – but not the act of hydraulic fracturing to stimulate production of the well. This is consistent with the reality that hydraulic fracturing occurs post-drilling:
Contrary to many media reports, hydraulic fracturing is not a “drilling process.” Hydraulic fracturing is used after the drilled hole is completed. Put simply, hydraulic fracturing is the use of fluid and material to create or restore small fractures in a formation in order to stimulate production from new and existing oil and gas wells. This creates paths that increase the rate at which fluids can be produced from the reservoir formations, in some cases by many hundreds of percent.
There is no doubt that this was not a complete answer, particularly for hydraulic fracturing – only larger operations that exceed the NPRI thresholds would be required to report. But it was a start.
In 2012, BC and Alberta took the important step of requiring reporting of hydraulic fracturing chemicals – albeit with a number of exemptions for “trade secrets”.
Changes to NPRI reporting requirements
Last week Environment Canada released a consultation document on changes to the NPRI process.
For in situ oil sands operations, the change is positive: Environment Canada will simply confirm in the NPRI notice that in situ oil sands operators are required to report on their chemical discharge, and particularly underground releases of chemicals:
[I]n evaluating the request from the environmental petition and analysing NPRI data, it was found that although some in situ facilities report underground disposals, they do not generally report underground releases to the NPRI. Therefore, while no changes to the actual NPRI reporting requirements are required to capture in situ bitumen extraction activities, it is proposed to clarify the requirements to ensure the collection of data on releases of substances underground.
But for hydraulic fracturing, Environment Canada is back-tracking from its acknowledgement, in October 2011, that shale gas is caught by the NPRI, characterizing hydraulic fracturing as merely a part of the exploration or drilling phases:
Hydraulic fracturing activities are not currently required to be reported to the NPRI because facilities used exclusively for oil and gas exploration or the drilling of oil or gas wells are exempt from NPRI reporting requirements. In addition, facilities that conduct well drilling and completion activities (including hydraulic fracturing) do not generally meet the NPRI employee threshold.
There is no reason given for, or acknowledgement of, this reversal of Environment Canada’s position.
Environment Canada goes on to dismiss the possibility of changing the rules to better obtain fracking chemical data through the NPRI:
Environment Canada has considered the removal of the exemption for drilling, and the employee threshold for hydraulic fracturing activities, in order to capture facilities that do hydraulic fracturing. It was found that in many cases the changes would not result in reporting of potential releases and disposals of NPRI substances in hydraulic fracturing fluid because, based on the information currently available, the substances do not appear to be used in quantities that would meet the thresholds to trigger reporting.
The fact is the NPRI is the major tool in Canada for tracking the use of toxic chemicals by industry. Exempting all fracking operations simply because some may be below the volume threshold is illogical; the largest hydraulic fracturing facilities should not be exempt simply because “many” would not. And it seems likely that Environment Canada’s “currently available” information is incomplete, given that the Department has not been systematically collecting fracking data.
We agree with Environment Canada’s original position – hydraulic fracturing is not exempted from the NPRI. Environment Canada’s new public position undermines the language of the NPRI requirements, and will deprive Canadians of vital information about the poisons that are entering the environment.
While BC and Alberta are now offering some level of disclosure of fracking chemicals, for the rest of the country Environment Canada’s narrow interpretation deprives Canadians of important information about fracking and pollution.
Environment Canada does make vague promises to “Continue assessing new information as it becomes available to determine if additional reporting may be appropriate in the future.” However, we think that Canadians want information on hydraulic fracturing now. While a new reporting system might be useful, until Environment Canada has one in place, the NPRI should apply as widely as possible to hydraulic fracturing operations.
Tell Environment Canada what you think
Environment Canada is consulting on these NPRI rules until February 8th, 2014. The government needs to hear that clarifying that the rules apply to in situ tar sands operation is a positive step, but that Canadians need to know about what chemicals are being used in fracking. Environment Canada’s position that hydraulic fracturing is not covered by the NPRI is not acceptable. Click here to use our on-line letter or email Environment Canada at inrp-npri@ec.gc.ca by Saturday, February 8th to tell them what you think.
By Andrew Gage, Staff Lawyer
Note: Environmental Law Alert is a publication of the West Coast Environmental Law Association, which does not receive charitable funds.