Constitutionalizing Environmental Protections Under the Charter: Part 1

by Avnish Nanda · March 26, 2014

This post is the first of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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Constitutionalizing Environmental Protections Under the Charter: Health Complaints and Heavy Oil Processing in the Peace River Region

Reno and Three Creeks are communities located in Alberta’s Peace River region. For years, community residents have complained of adverse health impacts resulting from emissions released by heavy oil processing facilities in the area. In early 2014, the Alberta Energy Regulator (AER) conducted a public inquiry into the concerns residents have regarding odours and emissions associated with heavy oil operations in the region. The results of the inquiry are expected to be released March 31, 2014.

From an environmental law perspective, there are a variety of ways to approach the concerns of Peace River residents. For instance, the odour and emissions management regulations for heavy oil production facilities in Alberta can be assessed for their efficacy. This appears to be the approach employed by the AER inquiry, which heard from experts and community residents to develop better regulations for heavy oil operations in the province. A “toxic-tort” perspective may be another approach by which the harms experienced by community residents are examined in relation to the industrial activity alleged responsible. Provided there is sufficient causation to determine culpability, residents may be entitled to a private law remedy.

However, the Charter of Rights and Freedoms provides another lens through which the concerns of Peace River residents can be analyzed. While environmental protections have not been formally recognized under the Charter, the court has stated that these rights can be read into its provisions. In addition to providing a public law remedy, constitutionalizing environmental protections would impose substantive limits on broader government action in the environmental realm.

From the evidentiary record available before the AER inquiry, the factual requirements of a Charter claim appear present. Over the course of 4 posts, I will outline how a s. 7 Charter claim can be argued in the context of heavy oil processing in the Peace River region that is alleged to result in adverse health impacts on community residents. These posts will be divided in the following manner:

Background Information

Reno and Three Creeks are located on the Peace River Oilsands, the smallest of the oilsands deposits found in Alberta. For decades, there has been oil production in the region. Initially, development was focused around conventional oil production, though in recent years, heavy oil extraction has gained prominence.

Heavy oil is differentiated from conventional oil on the basis of the density and viscosity of the oil. In broad terms, heavy oil is oil that is difficult to extract, as its density and viscosity prevent it from flowing easily like conventional oil. This makes heavy oil production more expensive, as special techniques are required to extract the oil from the ground. Over the last decade, an increase in oil prices has made the intensive process of extracting heavy oil more commercially viable.

Large heavy oil deposits in Alberta have led industry to develop a variety of heavy oil extraction techniques. This includes Cold Heavy Oil Production with Sand (CHOPS). CHOPS is a technique used for heavy oil that is still viscous enough to flow without the addition of heat. It is one of the primary methods of heavy oil extraction in the Peace River region.

The CHOPS process involves pumping sands into angled wells with specially designed pumps. The sand enhances the permeability of well fluids, leading to greater heavy oil recovery. After sand is added to a well, the resulting well fluids are pumped out and stored in process or storage tanks. The tanks act as gravity separators, allowing the fluids to break into five distinct layers: solution gas, heavy crude oil, formation water, sand, and oil and water emulsion. Fluid separation is assisted by heating the tanks to 70-80°C. While the heavy crude oil is further treated, the water and sand are either recycled or returned to the well. The solution gas is vented or sent to a flare. At various stages of this process, emissions are released through designated discharges, leaks or other means.

In Alberta, air contaminants are regulated under the Alberta Ambient Air Quality Objective (AAAQO). These guidelines regulate industrial emissions in order to protect public health and the environment. However, only in rare instances are there odour threshold limits attached to particular pollutants. This allows facilities to meet the guidelines established under the AAAQO, while still releasing odours at levels that are detectable to individuals located off-site. Although the province has recognized that a gap exists in Alberta’s odour threshold management under the AAAQO, a comprehensive framework has yet to be implemented.

Health Concerns Relating to Heavy Oil Processing

The Peace River region has over 900 CHOPS licensed wells, with Baytex Energy Corporation operating most wells in the Reno and Three Creeks areas. These areas are considered part of the eastern Peace River Oilsands, which is distinct from the western Peace River Oilsands and other oilsands deposits in Alberta for having source rock formations that contain high sulphur containing oil. Oil from this region is also known to have high aromatic hydrocarbon content and contains compounds that produce a distinct odour.

Since 2010, the AER has received over 800 complaints about odours from CHOPS operations in the Peace River region. Residents have complained of a variety of physical and psychological health symptoms that they believe are linked to CHOPS facilities in their area. Physical effects include cough, chronic nose and throat irritation, headaches, nose bleeds, nausea, eyelid spasms, shortness of breath, skin rashes, watery eyes, joint pain and stiffness, stomach aches, night sweats, muscle spasms, hair discoloration, incontinence, loss of balance, loss of sense of smell, developmental delays and a range of other physical impairments. Dizziness, extreme fatigue, exhaustion, disorientation, memory loss, sleep disturbances and insomnia are among the psychological symptoms reported.

The AER public inquiry into the complaints will investigate and make recommendations about odours and emissions associated with heavy oil operations in the Peace River area. The inquiry focused on six specific points:

Concerns of area residents and other local stakeholders regarding hydrocarbon emissions and odors from cold heavy oil production facilities and related impacts;
Expert, technical information about human and animal health impacts from hydrocarbon emissions and odors;
Existing Government of Alberta and AER policies and regulations relating to flaring, venting and incinerating and air quality standards to determine if amendments are needed to address emissions from cold heavy oil production facilities;
Possible technical and regulatory solutions to reduce hydrocarbon odours (including potential regulation amendments, opportunities for solution gas gathering and/or conservation, etc.);
Potential impacts on licensees/operations of facilities of mandating reduction of emissions from cold heavy oil production facilities; and
Specific geographic and geological information about the play within the Three Creeks and Reno areas, its reserves and recovery potential. This would include consideration of potential economic, social and environmental impacts to the Government of Alberta, local municipalities, the public, industry and other stakeholders of recommendations made by the inquiry panel.

After processes and experts were established, oral submissions were heard from January 21 – January 31, 2014. A final report is expected by March 31, 2014.

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Expert Submissions

To aid its inquiry into the health impacts of odours and emissions from heavy oil operations in the Peace River region, the Alberta Energy Regulator (AER) invited experts to make submissions and testify on a range of issues important to its examination. For our purposes, expert evidence relating to toxic and odour emissions from Cold Heavy Oil Processing With Sand (CHOPS) facilities in the Peace River area, the public health impacts of these emissions, and Alberta’s odour management framework are most relevant.

Toxic and Odour Emissions from CHOPS Facilities in the Peace River Region

From February 26 to March 6, 2013, Chemistry Matters Inc. conducted ambient air sampling of heavy oil processing facilities in the region. During the same period, Clearstone Engineering Inc. carried out field studies in order to characterize atmospheric emissions and complete an emissions inventory for the purposes of air quality modeling. RWDI AIR Inc. then assessed whether compounds emitted by these facilities exceeded Alberta’s regulatory requirements, relying on air dispersion modeling of select chemical compounds. These studies supplemented earlier air quality reports done by Alberta Environment in 2010.

These studies indicate that, for the most part, emissions of a set number of chemical compounds from CHOPS facilities in the region do not exceed the AAAQO. However, exceedances were noted for hydrogen sulphide and carbon disulphide. Hydrogen sulphide and carbon disulphide are also chemical compounds subject to odour threshold limits under the AAAQO. Although emissions from these chemical compounds were below the levels associated with adverse health effects, individuals would likely be able to detect them.

While these studies may not provide a complete picture of all chemical compounds emitted by heavy oil facilities, they contain two important findings. First, there is no evidence that the facilities are releasing emissions at levels known to be dangerous to human health. Second, the facilities are releasing hydrogen sulphide and carbon disulphide at levels that are detectable to communities from where the AER complaints have been filed.

Public Health Impacts of Toxins and Odours Emitted from CHOPS Facilities in the Peace River Region

The AER inquiry retained Dr. Donald Davies and Dr. Margaret Sears to provide expert evidence on whether heavy oil processing in the Peace River region could be responsible for the physical and psychological health effects reported by area residents. Dr. Davies holds a PhD in toxicology from the University of Guelph, and has consulted and published extensively on the potential health impacts from oil and gas processing. Dr. Sears also holds a PhD in toxicology, and has consulted and published extensively in the area of environmental health.

Both Dr. Davies and Dr. Sears acknowledge that the health symptoms reported by area residents are real. However, they differed on the source of these symptoms. On the basis of the air quality assessments, Dr. Davies concludes that there is “no obvious prospect for the health of people in the Peace River area to be adversely affected from the direct toxic action of chemicals contained in the emissions associated with heavy oil operations when exposed to the emissions.” Dr. Sears, on the other hand, identifies the flaws in the air quality sampling, arguing that detection limits and measurement standards were lacking, resulting in data so poor in quality that it is not useful. Therefore, given the nature of the chemical compounds, the possibility still exists that the facilities could be emitting substances at levels that are harmful to human health.

Excluding Dr. Sears’s critique of the air quality studies and their emission assessment methods, Dr. Davies’s conclusion is consistent with the evidentiary record before the inquiry. There is no evidence to suggest that the facilities are emitting chemical compounds at levels that are known to be dangerous to human health. However, given that the health effects reported by residents are genuine, and that odours are being emitted from heavy oil processing facilities in the region at detectable levels, Dr. Davies proposes an alternative explanation for the physical and psychological health symptoms reported by community residents.

Dr. Davies first notes that the chemical compounds emitted from the facilities would lead to an unpleasant odour that reflects the asphalt/tar or ‘rotten egg-like’ description of the odour community residents reported. After conducting a literature search on the health impacts that result from prolonged exposure to unpleasant odours, Dr. Davies discovered that the health symptoms discussed directly mirror the physical and psychological health effects reported by community residents. While the mechanism by which prolonged exposure to odours can cause these adverse health effects is not known, the literature, according to Dr. Davies, suggests that:

the explanation may lie in the fact that the trigeminal nerve receptors (which respond to the presence of irritants) and the olfactory nerve receptors (which respond to the presence of odourants) are located in close proximity to each other in the nose, and that, when stimulated, both types of receptors project to overlapping areas of the brain where the nerve signals translate to either odour sensations or irritant sensations, some of which represent reflex-type responses under the control of the autonomic nervous system. This overlap could result in signal crossover, with sensory irritation being experienced from the presence of a strong odourant at concentrations that are only weakly or non-irritating. This explanation would account for the reports of people in the area evidently experiencing eye, nose or throat irritation (presenting as nasal congestion, sore or scratchy throat, watery or sores eyes, etc.) during odour “episodes” despite evidence showing the concentrations of the chemicals that might be encountered to be below levels known to cause irritant effects.

The literature also suggests that the presence of unpleasant odours can act “as a cue that either triggers stress-related illness or heightens awareness of underlying symptoms.” For instance, the presence of odours can allow concerns residents have over development and existing health issues to develop into major physical and psychological symptoms.

In light of the evidence, Dr. Davies concludes that the presence of strong unpleasant odours from heavy oil processing facilities in the region may be inducing the range of physical and psychological health symptoms reported by community residents.

Alberta’s Odour Management Framework

Odotech Inc. was retained to provide expert evidence in relation to Alberta’s odour management framework. The Alberta Ambient Air Quality Objective (AAAQO) sets ambient air limits for specific air contaminants. Listed concentration values for hazardous air contaminants under the AAAQO are designated at levels designed to protect public health. However, odour threshold limits are only included for three chemical compounds: hydrogen sulfide, carbon disulphide and ammonia. The AAAQO does not set odour threshold limits for the vast majority of air contaminants it regulates.

For the chemical compounds subject to odour threshold limits, the limits are set at levels that are above an individual’s ability to detect their presence. This would allow industrial facilities to comply with the odour threshold limits established under the AAAQO, while still emitting unpleasant odours at levels detectable by humans.

While Odotech Inc. makes a series of recommendations with respect to Alberta’s odour management framework, perhaps the most significant in relation to the health concerns of residents is the proposal to expand the AAAQO to include sensory based ambient odour limits for emissions. This framework, in place in Ontario, Quebec, Manitoba and being considered in Saskatchewan, has clearly defined ambient limits, averaging periods, frequency of exceedences and applicability to residential and non-residential areas. This provides a much more accurate reading of odour discharges and includes odour threshold limits for more chemical compounds than the three currently subject to them under the AAAQO. Moreover, this would allow for regulations to be tailored to specific contexts, such as mitigating the impacts of odours discharged from industrial facilities have on human populations. This approach would provide Alberta a much more comprehensive odour management framework.

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While the AER final report has yet to be released, an overview of the documentary evidence and expert testimony at the inquiry indicates that there is a sufficient basis to argue that Alberta’s current odour management framework may be breaching the s. 7 Charter rights of certain Peace River area residents. However, prior to conceptualizing a Charter claim in relation to this particular scenario, a broad overview of s. 7 in the context of environmental rights, to be discussed in Part II, will be beneficial.