BC Government Withheld Information on Dangers of Unregulated Fracking Dams

Despite risks, managers refused to provide information as election loomed.

By Ben Parfitt TheTyee.ca   Ben Parfitt is a resource policy analyst with the BC office of the Canadian Centre for Policy Alternatives.   His recent research for the CCPA is published here.

Despite criticism for failing to warn about risks before 2010 Testalinden dam disaster, the BC government withheld information on risks from unregulated energy industry dams. Photo by Darren Kirby, Creative Commons licensed.

 

Early last spring, provincial civil servants cut off virtually all communication about what the government knew about a sprawling network of potentially dangerous and unregulated dams in northeast B.C. on the pretext they could not comment because of the impending election.  The co-ordinated effort meant there was virtually no comment until months after voting day from frontline agencies on how 92 unlicensed dams were built on the BC Liberal government’s watch.

 

Details about muzzling government communication on the dams — which were built to trap freshwater used in natural gas industry fracking operations — are contained in some of the 8,000 pages of documents released by the BC Oil and Gas Commission in response to Freedom of Information requests by the Canadian Centre for Policy Alternatives, which was the first to report on the dams early last May.

 

The initial CCPA report, published one week before the election and widely covered by media outlets, exposed how fossil fuel companies had built “dozens” of unlicensed fracking dams.

 

The FOI documents include internal emails between senior OGC staff and the Ministry of Natural Gas Development, in which the two organizations agree to refuse to release information on the dams on the grounds that doing so would violate rules on managing government records during the “interregnum” (the time between the call of the election and the swearing in of a new government).

But this assertion is flatly rejected by an expert on privacy policy.

 

“Guidelines on ‘managing records during an election’ cannot trump the law,” said Colin Bennett, a University of Victoria political scientist. “If there is a public interest in disclosure, then the election period is irrelevant.”

 

Bennett added that B.C.’s Freedom of Information and Protection of Privacy Act clearly states that government officials should proactively release information that is in the public interest without delay. That did not happen in this case.

 

Not only did it not happen, but the OGC insisted on formal FOI requests being filed to obtain the information. By doing so, the commission — with the knowledge of the Ministry of Natural Gas Development — ensured that documents on the troubling dams would not be released until long after the election.

 

The suppressed information included documents about unlicensed dams built by Progress Energy, a subsidiary of the giant Malaysian state-owned company Petronas. At the time of last spring’s election, Petronas was still weighing whether or not to invest in a proposed liquefied natural gas plant at the mouth of the Skeena River near Prince Rupert. The project was enthusiastically backed by then-premier Christy Clark and Rich Coleman, minister of natural gas development. Clark went so far as to call opponents of the project “the forces of no.”

 

Averting a potential disaster

 

Early in the investigation, the CCPA learned that at least one unauthorized Progress Energy dam was so poorly built that the OGC had quietly ordered the company in spring 2016 to empty the dam’s reservoir in order to avert a potential disaster. (A gas compressor station was downhill of the dam.) The OGC even posted a very short summary of the order on one of its webpages, a low-key public acknowledgement that a more comprehensive document existed.

 

The CCPA’s request for a copy of the full order was initially denied.

 

An April 18, 2017 email exchange between the OGC’s executive director of corporate affairs, Graham Currie, and the Ministry of Natural Gas Development’s communications director, Paul Woolley, refers to the full order and related documents as materials that both organizations agree not to release or to answer questions about.

 

“FYI — spoke with [CCPA policy analyst] Ben Parfitt today and advised him we could not release the order he was asking for and that he should submit an FOI. He said he has to report on this — and will put a line in to the effect:

‘I asked to receive a copy of the order and Graham Currie told me, due to the interregnum, it was not available and I should submit an FOI.’

 

I suspect we’ll see his editorial coming in the next day or two, based on this conversation,” Curry wrote in the email.

A half hour later, Woolley responded.  “Thx. This is [sic] the lines we are working with:

 

• During the interregnum period, it is public service’s duty to remain impartial during this time both in action and perception.

• Government communication practices are the same as they have always been for this election which is to not offer media relations support beyond pointing to already publicly available data or information.

• There are exceptions to these practices which are immediate public health matters, environmental health and emergencies.

• Further, during this time government staff do not provide analysis or comment on campaign promises of any political party, or any general comments they may make about government programs, policies and services.

 

Release of the order would not be an immediate concern related to public health and safety or an emergency in my opinion.”

 

Vincent Gogolek, former executive director of the BC Freedom of Information and Privacy Association, said the email exchange is troubling, particularly in light of a complaint made by the University of Victoria’s Environmental Law Centre on behalf of the association in 2012.

 

That complaint, to B.C.’s Information and Privacy Commissioner, outlined several instances where the association felt that government officials had acted incorrectly by withholding information that should have been released because it was clearly in the public interest.

One notable example was the government’s failure to notify the public about possible safety concerns at the small Testalinden dam in southern B.C. near the community of Oliver. A portion of the dam’s wall gave way in 2010, releasing 20,000 cubic metres of water.

Miraculously, no one was killed when the dam’s reservoir triggered a mudslide that wiped out five houses and blocked a portion of Highway 97 for five days.

 

After reviewing the law centre’s complaint, then-information and privacy commissioner Elizabeth Denham wrote a report in which she found that provincial civil servants knew from government inspection reports that the Testalinden dam was near the end of its lifespan and that it posed “a hazard.”

 

Denham concluded that the government “failed to meet its obligation” by not alerting the public to the “compromised state of the dam.”

 

Denham was particularly concerned that when it came to the troubled dam, civil servants appeared to ignore one of the Freedom of Information and Protection of Privacy Act’s most important provisions, Section 25, which stipulates that the head of any public body “must, without delay” disclose any information “about a risk of significant harm to the environment or to the health or safety of the public or a group of people.”

 

In light of Denham’s report, Gogolek wonders how the OGC and Ministry of Natural Gas Development concluded four years later that it was not in the public interest to proactively release information on the dozens of unauthorized earthen dams built by fossil fuel companies.

 

Some of those earthen dams held back seven times more water than what escaped during the catastrophic Testalinden failure. And in each case, those dams were not vetted by provincial dam safety officials before they were built, meaning it was anybody’s guess whether or not the structures were designed and built to even minimally acceptable engineering specifications.

 

“How did they interpret that these dams were so radically different than the Testalinden dam? That’s the critical question in my mind,” Gogolek said.

 

Gogolek’s concern has added significance in light of other documents released in response to the CCPA’s FOI requests. Those documents show that OGC personnel knew as far back as June 2015 that there was a significant problem at another unauthorized Progress Energy dam, yet the commission took no significant action until May 2016. And it remained virtually silent on the matter for almost another year until it was forced to respond because of the CCPA investigation.

 

Some kind of failure

 

The scant details on the June 2015 incident — a failure of some kind — at a Progress Energy dam site are contained in an “assessment report” written 11 months later (on May 26, 2016) by the OGC’s then-chief hydrologist Allan Chapman.

 

According to the assessment report, the chief hydrologist was not happy with what he found. Chapman discovered during his field visit that Progress had built the dam to capture freshwater from two streams. Under provincial water laws, the company had to apply for a licence before diverting water from streams. That had not happened. The dam was 10 metres high and stored roughly five times more water than the amount spilled during the Testalinden disaster. That made the dam a fully regulated structure under provincial laws, meaning that before it was built engineering plans should have been submitted to provincial dam safety officials.

That didn’t happen either.

 

Then, in spring or early summer 2015 — Chapman was uncertain when — the dam experienced some kind of failure.

“I cannot determine the mode of failure,” Chapman wrote in his report, noting that the dam’s reservoir could possibly have overfilled and the water overtopped the structure.

 

“There is evidence of substantial water and sediment movement into the forest downslope of the dam,” Chapman wrote, noting that there were “mud and splash lines on trees” about one metre above ground level, and that those splash lines extended 100 metres or more into the forest “approximately 100 metres downslope” of the dam.

 

For any oil and gas industry workers in the immediate vicinity downhill of the dam that day, the mudflow could have had deadly consequences.

 

More than a year after Chapman’s visit, in response to questions emailed to Progress Energy by the CCPA, the company acknowledged that an event had, indeed, occurred at the site — but not a failure of the dam per se.

 

In the email, Progress’s vice-president of external affairs and communications, Liz Hannah, said that during construction of the dam “frozen material had been excavated from the pond area and stored in the northwest corner of the site. During melting conditions, a portion of this frozen saturated material had mobilized and run offsite onto a Progress right of way and into the adjacent forested Crown land.”

 

Copies of photos included in Hannah’s email show a very large stream of dried and caked mud that she said had been carried away from the dam site.

 

“It is correct that a portion of the excavated soil pile failed,” Hannah concluded in her email, “but the dam itself did not.”

By the time of Chapman’s spring 2016 report, the OGC knew it had allowed a big problem to develop on its watch. Progress Energy and other companies had built many unlicensed dams on Crown or public lands — dams that the OGC could have, and should, have stopped. It was also clear that many more such dams had been built on private lands, dams that the Ministry of Forests, Lands, Natural Resource Operations and Rural Development also could, and should, have stopped.

 

At the time, provincial regulators didn’t know how many dams there were. They also didn’t know where the dams were located, what waters they impounded or how safe or unsafe they might be.

 

Scrambling to quantify just how many such dams there were, the OGC sent a letter on May 13, 2016, to companies drilling and fracking for gas in B.C. The companies were instructed to report back on all “fresh water storage” structures they had built including information on dam heights, water sources and the amounts of water stored behind the dams.

 

The letters also instructed the companies to supply “produced, signed and sealed” documents from professional engineers on the “structural integrity” of the dams. The companies were also told that their engineers must report on any “risk to public safety, the environment, or other property” that the dams posed.

 

Once the responses came in, the OGC concluded that Progress Energy had built roughly half of 51 unauthorized dams, all but three of which are located on Crown lands. It is now up to the OGC to approve or disapprove the dams retroactively.

 

Built without required permits

 

Subsequent work by the ministry revealed that in addition to those 51 unregulated dams, another 41 were built without the required permits and that the bulk of those dams are on private lands, including farmlands in B.C.’s Agricultural Land Reserve.

 

Two unregulated dams built by Progress Energy in 2012 and 2014 are particularly problematic because they are so big. One is nearly 23 metres high or roughly as tall as a seven-storey apartment building and the other is roughly as high as a five-storey building. The taller of the two earthen structures is referred to in various documents as the “d-42-k” or Lily dam.

 

Both dams qualified as “reviewable projects” under B.C.’s Environmental Assessment Act, meaning that each of them should have undergone provincial environmental assessments first to determine whether Progress would be allowed to build them at all.

 

But the company never alerted the Environmental Assessment Office of its intentions to build the dams and Progress subsequently took the extraordinary step of asking the EAO to exempt the dams from review after the fact.

The EAO eventually ordered the company to drain almost all the water behind the massive structures and is expected to soon issue its decision on the company’s request for retroactive exemption. Several organizations including the Blueberry River First Nation and the CCPA filed documents with the Environmental Assessment Office urging that the company’s application be rejected.

 

A photocopied photo included in the FOI documents obtained by the CCPA shows a tension crack at the top of one sloped wall of the towering Lily dam near Mile 156 of the Alaska Highway. The 23-metre-high structure’s “live storage” volume — the amount of water that could be unleashed should the dam fail — is more than 20 million gallons or enough to fill 30 Olympic-size swimming pools.

 

Another email in the FOI package quotes an OGC official saying there was evidence the massive structure was “moving,” a sign that the dam’s earthen walls or berms were slowly shifting, potentially causing the dam to become unstable.

 

Since the first stories on the sprawling network of unauthorized dams were published by the CCPA on May 3, 2017, belated inspections by compliance and enforcement personnel with the Oil and Gas Commission and Environmental Assessment Office uncovered significant problems at 16 unlicensed dams on Crown lands. Companies were ordered to take corrective action, including draining much of the water behind many of the dams to lower the risk of catastrophic failures.

 

Further problems were identified at another dozen unlicensed dams built on Crown lands, and the province could still issue more orders.

 

And, more problems may yet come to light at other unlicensed dams, in particular at the 41 built on private lands and recently identified by the government.

 

All of this makes the government’s pre-election strategy to suppress the release of information on the problematic dams more vexing. No environmental concerns? No risks to human health and safety? How did the government possibly draw such conclusions when documents in its possession said otherwise?