The Rainbow Spill: A Case of Crime and (No) Punishment Research and writing Keith Stewart works on energy policy and green energy solutions for Greenpeace Canada, building on 14 years of experience as an environmental researcher and advocate. He has a Ph.D. in political science from York University and currently teaches a course on Energy Policy and the Environment at the University of Toronto. Acknowledgements Greenpeace Canada would like to thank our 84,000 Canadian supporters who fund everything we do, including this report. Without your individual and ongoing support Greenpeace could not function independently of government or corporate funding. We would also like to thank the Oak Foundation for its support of Greenpeace Canada’s climate and energy campaign. Design: Peartree Design Photo Credits: © Greenpeace / Rogu Collecti EXECUTIVE SUMMARY The February 2013 findings of Alberta’s Energy n The ERCB downplayed the spread of spread of oil Resources Conservation Board (ERCB) investigation contamination in local wetlands. into the April 2011 Rainbow Pipeline spill were n The government relied on the company to take the damning. water samples that would ultimately be used in a court case against them. Confidential government n The cracks in the Rainbow pipeline that caused reports indicate that there were problems (such as it to spill oil into the wetlands near the Lubicon Cree missing samples) with the water samples submitted community of Little Buffalo should have been by the company, which may be one of the reasons identified and repaired by the pipeline’s owner, why no charges were brought forward. Plains Midstream. n The 28,000-barrel spill would have been much This response to the Rainbow pipeline spill is smaller if the company had not restarted the symptomatic of a more systemic problem: government pipeline three times after the sounding of the first agencies that have been ‘captured’ by the very same alarm indicating a leak. oil industry that they are supposed to regulate; as a n The company violated a number of provincial result, they defend the interests of the industry over the regulations and failed miserably in its responsibility public interest. to communicate with local communities harmed by the spill.1 The Alberta government is in the process of establishing a new regulatory agency to oversee the Yet despite these findings, neither the ERCB nor the oil and gas industry. The government’s current plan provincial government pursued the available legal or will further entrench this regulator as a defender of the financial sanctions against the company. industry rather than of the public interest. Instead – as internal documents obtained by Greenpeace recommends that the government take Greenpeace under the Freedom of Information and the opportunity offered by the establishment of this Privacy Act reveal – the prime concern of both the new agency to: regulator and the Alberta government was not to 1. Increase transparency through greater access to protect the affected communities or the environment information. but to limit the damage to the oil industry’s public 2. Implement greater public involvement in decision- image. Our specific findings include: making, as a counterweight to the influence of the n The ERCB leadership rejected a request from their oil industry. own investigation team for a public inquiry into the 3. Put an end to the revolving door between industry spill. Such a public inquiry – if it had been carried lobby groups and the leadership of regulatory out in 2011 – might well have helped to reveal the agencies. systemic problems that contributed to lax oversight and future leaks. A first step in this direction would be to revisit the n When he was finally forced to launch a public decision to appoint oil industry insider Gerry Protti as investigation of pipeline safety in response to public the head of the new regulatory agency. pressure, Alberta’s Energy Minister worked closely with the oil industry to structure the review in a way that would limit the damage to the sector’s reputation. n Regulators never did check to see if the company had conducted the required inspections of defective pipeline sleeves, even though the Alberta government was aware of Plains Midstream’s poor safety record in the United States. n The ERCB investigation report and public statements from the government misrepresented the results of air-testing at Little Buffalo school, thereby providing a false reassurance on the issue of health impacts. 3 A view of the Rainbow Pipeline oil spill, the worst in Alberta for 35 years, that dumped 28,000 barrels of oil into a wetland area near the community of Little Buffalo in Lubicon Cree First Nation traditional territory. THE RAINBOW PIPELINE SPILL On April 28, 2011, 28,000 barrels of oil were spilled In spite of all the problems identified in the ERCB’s near the Lubicon Cree community of Little Buffalo in incident report, neither the regulator nor the provincial the Peace River region of Alberta. government imposed a penalty on the company. The only proviso was that the company would have to The Rainbow Pipeline spill was one of the largest “engage a third party to conduct a communications spills in provincial history, but it should not have been. audit that focuses on the company’s ability to manage An alarm indicating a leak first went off in the Plains communications during a crisis or incident.”7 Given Midstream control room at 6:32 p.m. on April 28, that the spill resulted in what internal briefings refer and the pipeline was shut down at 7:22 p.m. to as “significant media coverage on a local, national The pipeline, however, was subsequently restarted and international level,”8 a cynic might interpret this three times after that thanks to what the ERCB requirement as a direction to make sure the company investigation report describes as the company’s would better manage media relations the next time a “practice of placing higher priority on continued spill happened. operation of the pipeline over any potential impacts This mild slap on the wrist delivers a key message: related to a pipeline leak.”2 the ERCB is more concerned with public relations than The pipeline was finally shut down for good hours later, with performance. This impression is reinforced by at 2:50 a.m. on April 29. Those extra eight hours of internal documents stating that in “an unprecedented operation contributed greatly to the size of the spill. move by the ERCB,” as a requirement for restarting the pipeline Plains Midstream would have to develop In its assessment of the incident, released on Feb. a “public relations plan.”9 26, 2013, the ERCB found that Plains Midstream “appeared to have a total lack of appreciation of Nor did the provincial government pursue legal action the affects a spill of this magnitude has beyond its against the company, even though an internal briefing own on-site operational response.” Moreover, the note prepared for the Energy Minister stated: “Alberta company “failed to comply with a number of regulatory Environment will move forward with enforcement action requirements in relation to the incident.”3 under the Environmental Protection and Enhancement Act swiftly if required at any time. The maximum The leak itself was determined to be a result of penalty for each section would be $500,000 as a defective weld on a “Type B” sleeve. The rules well as fully enforcing the company to continue with regarding Type B sleeves were changed in 1990 due clean up.”10 to problems identified in previous spills, yet Plains Midstream could not provide any evidence that the In this report, we assess some specific examples of the required inspections were ever made after those provincial government and/or regulator taking actions rules were changed.4 According to the ERCB incident which appear to be more focused on protecting report, the company should have found the crack the oil industry’s reputation than on protecting the during a routine inspection.5 Inspections done after the environment or affected communities, and then turn to spill identified 10 similar cracks.6 the broader systemic issue of ‘regulatory capture’. 4 THE ALBerta GOVERNMENT AND PLAINS MIDSTREAM: A POOR SAFETY RECORD Plains Midstream Canada ULC is an indirect subsidiary The ERCB blames this failure to inspect the sleeves of the U.S.-based firm Plains All American Pipeline, L.P. (or at least to document that the inspection had (commonly known as Plains All American). According been carried out) on the company. Yet surely it is the to the company’s websites, Plains All American government’s job to ensure that companies follow owns 26,000 kilometres of active crude oil, natural the rules. gas liquids (NGL), and refined products pipelines, Speaking notes prepared for the Minister of and associated gathering systems, including 5,000 Environment and Sustainable Development claimed kilometres of pipelines in Canada. that the Rainbow Pipeline had “been inspected at Members of the Alberta government were aware of least six times, in its entirety or in sections, over the Plains’ “unfortunate” safety record in the United States. last five years. The ERCB conducts inspections of Their internal speaking points acknowledged this pipeline construction and operation, and follows up on point, but claimed that the situation was different in incidents with the pipeline owners.” Alberta because of the province’s rigorous inspections This willingness to trust that the company was system. Yet the ERCB’s own report found that the leak following the rules is particularly tragic, in light of the probably would not have happened if there had been ensuing major spill from Plains Midstream’s pipeline an inspection of the “Type B” sleeves, as required by near Sundre in 2012.