Decision Syncrude Canada Ltd. Mildred Lake Power Plant. July 17, 2014

Transcription

1 Decision Syncrude Canada Ltd. Mildred Lake Power Plant July 17, 2014

2 Decision : Syncrude Canada Ltd. Mildred Lake Power Plant Application No Proceeding No July 17, 2014 Published by The Alberta Utilities Commission Fifth Avenue Place, Fourth Floor, 425 First Street S.W. Calgary, Alberta T2P 3L8 Telephone: Fax: Website:

3 Calgary, Alberta Decision Syncrude Canada Ltd. Application No Mildred Lake Power Plant Proceeding No Introduction and background 1. On February 11, 2014, Syncrude Canada Ltd. (Syncrude) filed an application with the Alberta Utilities Commission (AUC or the Commission), pursuant to sections 4, 11 and 18 of the Hydro and Electric Energy Act, requesting approval to: Construct and operate a 92-megawatt (MW) power plant (the proposed power plant or the project). Connect the proposed power plant to the Alberta Interconnected Electric System (AIES). Amend the existing Industrial System Designation, within its Mildred Lake facility. 2. The application was registered as Application No and assigned Proceeding No The proposed power plant would be located in the northwest quarter of Section 6, Township 93, Range 10, west of the Fourth Meridian, approximately 30 kilometres north of Fort McMurray. 4. The proposed power plant is intended to provide additional electrical and thermal energy, to offset increased energy demands affiliated with the current Mildred Lake oilsands operation. 5. The Commission issued an information request to Syncrude on February 27, Syncrude responded on March 20, On April 4, 2014, the Commission issued a notice of application, with a deadline of April 25, 2014, to file submissions or statements of intent to participate in relation to the application. 7. On May 16, 2014, the Commission received a letter from the Mikisew Cree First Nation (MCFN) in response to the notice. The MCFN explained that it had not been consulted by Syncrude and had recently learned of the project. In its letter, the MCFN requested, among other things, that the Commission extend the deadline to allow it to file a submission. The Commission extended the deadline for submissions until May 26, On May 23, 2014, the Commission received a letter from the Athabasca Chipewyan First Nation (ACFN) requesting an extension to file its statement of intent to participate. The ACFN explained that it had not been consulted by Syncrude and learned of the project after the deadline for filing statements of intent to participate had passed. By letter dated May 26, 2014, the Commission granted the ACFN s request. 9. The Commission received three submissions in response to its notice of application. AUC Decision (July 17, 2014) 1

4 Mildred Lake Power Plant Syncrude Canada Ltd. 10. TransCanada Energy Ltd. (TransCanada), by letter dated April 25, 2014, stated that it is the owner of the MacKay River power plant located near the project. TransCanada indicated that the information provided regarding the proposed power plant was insufficient to determine the impact on TransCanada. By letter dated May 16, 2014, TransCanada advised that it received additional information from Syncrude and no longer had any concern with the proposed power plant. 11. ATCO Power Canada Ltd. (ATCO Power), by letter dated April 25, 2014, requested that the Commission provide it with an opportunity to review studies referred to by Syncrude in the application. On May 15, 2014, ATCO Power advised that it had an opportunity to review this additional information and no longer requested further process. 12. On June 2, 2014, the ACFN submitted a statement of intent to participate on behalf of its members. The ACFN submitted that the proposed power plant is located within its traditional lands. It contended that the project may affect the ACFN members ability to exercise their treaty rights in the immediate vicinity and downstream of the proposed power plant site. 13. The Commission did not receive further submissions from the MCFN. 14. Syncrude, by letter dated June 10, 2014, responded to the ACFN s submission. Syncrude stated that there is no evidence that the ACFN may be directly and adversely affected by the construction and operation of the proposed power plant. 15. In its June 19, 2014 ruling, the Commission denied standing to the ACFN for the reasons set out in its ruling on standing which is attached as Appendix 1. As there was not a person with standing in relation to the application, the Commission did not hold a hearing before making its decision on the application. 2 Discussion 16. Syncrude is the holder of Order No. U which is an approval to operate an industrial system at its Mildred Lake oilsands facility. The industrial system includes a number of generating units, transmission lines and substations. The development of the proposed power plant was included in the Mildred Lake Upgrader expansion project approved by Alberta Environment, a predecessor to Alberta Environment and Sustainable Resource Development (AESRD), in Three turbines were contemplated in the 2005 Alberta Environment application. Only two turbines were installed and the unit applied for in this application is the third turbine. 17. Syncrude indicated that the proposed power plant is located within the boundaries of the Lower Athabasca Regional Plan. Syncrude noted however that the proposed power plant is located on an existing disturbed industrial site and requires no additional clearing: the proposed power plant would be located within Syncrude s Mildred Lake facilities which extend over 2,000 metres around the proposed power plant. Syncrude submitted that no new land use dispositions would be required under the Public Lands Act. Syncrude also indicated that the nearest community is Fort McKay, located approximately 15 kilometres north of the project. 1 Order No. U : Syncrude Canada Ltd. Industrial System Designation, Application No , April 22, AUC Decision (July 17, 2014)

5 Mildred Lake Power Plant Syncrude Canada Ltd. 18. Syncrude submitted that, if approved, the proposed power plant would connect to the Alberta Interconnected Electric System (AIES) at the ATCO Electric Ltd. Ruth Lake substation through the existing Syncrude 260 kilovolt transmission lines. The Alberta Electric System Operator, in a letter dated December 2, 2013, indicated that the proposed connection would not adversely impact the AIES. 19. AESRD issued Approval No under the Environmental Protection and Enhancement Act for the Mildred Lake oilsands facility. Syncrude applied to AESRD in December 2013 to amend this approval to permit the construction, operation and reclamation of the proposed power plant. 20. Syncrude indicated that regional drainage is not affected by the project. Existing site runoff plans would be unaffected by the addition of the proposed power plant and no watercourse would be significantly impacted. Also, Syncrude advised that the water withdrawals for the proposed power plant were approved by AESRD for its current oilsands operations. Total water withdrawals would remain below Syncrude s licenced limit and the annual total intake would be less than 0.2 per cent of the annual flow on the Athabasca River. Syncrude submitted that utilizing water from the Athabasca River would not impact navigation on the river. 21. In a letter dated January 21, 2013, AESRD advised Syncrude that pursuant to Section 44 of the Environmental Protection and Enhancement Act the proposed power plant is not a mandatory activity for the purposes of an environmental assessment. Having regard to Section 44(3) of the Environmental Protection and Enhancement Act, AESRD decided that further assessment of the proposed power plant was not required and, as such, it was unnecessary for Syncrude to submit a screening report. 22. Also, Syncrude conducted an air quality assessment as part of its application to AESRD. Dispersion modelling was done for Nitrogen Dioxide (NO 2 ), Carbon Monoxide (CO) and Ammonia (NH 3 ) which indicated that baseline concentrations (i.e. concentrations resulting from other existing and approved sources in the area) exceed the Alberta Ambient Air Quality Objectives. Syncrude indicated that when the contribution of the proposed power plant is added to the baseline results, the maximum concentrations are essentially unchanged. Syncrude submitted that these results demonstrate that the proposed power plant would result in minimal changes to air quality. 23. Syncrude indicated that over 80 per cent of the power provided by the project is required to support tailings management and emissions reduction initiatives. These include the Sulphur Emissions Reduction project approved in the Environmental Protection and Enhancement Act approval and the Mature Fine Tailings Centrifuge projects previously approved. 24. Furthermore, Syncrude indicated that the proposed power plant would supply the largest air emission reduction project undertaken in the oilsands region. Syncrude stated that approval of the project would decrease SO x and NO x emissions by routing exhaust through the best available control technology, as opposed to flaring or routing through less effective emissions control technologies. 25. Syncrude stated that the anticipated noise levels would be within the permissible sound levels in AUC Rule 012: Noise Control (AUC Rule 12). 26. Further, Syncrude obtained a Historical Resource Act clearance from Alberta Culture and Community Spirit on January 7, AUC Decision (July 17, 2014) 3

6 Mildred Lake Power Plant Syncrude Canada Ltd. 27. Syncrude submitted that it conducted a participant involvement and consultation program for the project which included notification to all occupants, residents, and landowners within 2,000 metres of the proposed power plant site boundary and personally consulted all occupants, residents, and landowners within 800 metres of the proposed power plant site boundary. Syncrude indicated that it also consulted with various government agencies and that none of these government agencies raised any concern with respect to the project. Further, Syncrude submitted that AESRD was involved at an early stage in the participant involvement program and that AESRD advised Syncrude that the First Nation consultation guidelines were not triggered by this project. 28. Syncrude also indicated that power generated by the existing facility is designated as an Industrial System pursuant to Section 4 of the Hydro and Electric Energy Act, and that the conditions of this designation will be unaffected by the addition of the proposed power plant. 3 Findings 29. The Commission considers that the application meets the information requirements stipulated in AUC Rule 007: Applications for Power Plants, Substations, Transmission Lines and Industrial System Designations and Hydro Development (AUC Rule 007). Also, the Commission has reviewed the participant involvement and consultation program conducted by Syncrude, and finds that it meets the requirements of AUC Rule 007. In assessing the adequacy of Syncrude s participant involvement and consultation program, the Commission observes that there were efforts made by Syncrude to identify parties, including First Nations, which may be directly and adversely affected by the project. 30. With respect to the siting of the proposed power plant, the Commission recognizes that the proposed power plant would be located on disturbed land surrounded by Syncrude s oilsands facilities in an area covered by the Lower Athabasca Regional Plan and the proposed power plant is in accordance with the plan. In making its decision on the application, the Commission took into account that no additional clearing and no new land use dispositions are required. The Commission understands that the nearest community is located approximately 15 kilometres north of the proposed power plant. As the project is proposed to be constructed on a previously developed site, the Commission considers that potential impacts to soil, vegetation and wildlife are minimal. 31. Further, the Commission has taken into account that water withdrawals for the proposed power plant are to be made under Syncrude s water licence issued by AESRD for its current oilsands operations. Total water withdrawals would remain below Syncrude s licenced limit. Also, the Commission accepts that regional drainage would not be affected by the project and the addition of the proposed power plant would not affect existing run off plans for the oilsands site. 32. Regarding air emissions, the Commission is aware that Syncrude has applied to AESRD in relation to the proposed power plant for an amendment of its Alberta Environment approval for the Mildred Lake oilsands facility. The Commission observes that AESRD has advised Syncrude that the proposed power plant is not a mandatory activity for the purposes of an environmental assessment and that further assessment of the project is not required. 33. The Commission recognizes that Syncrude conducted an air quality assessment and that the baseline concentrations of emissions, from other existing and approved sources in the area, 4 AUC Decision (July 17, 2014)

7 Mildred Lake Power Plant Syncrude Canada Ltd. exceeded the Alberta Ambient Air Quality Objectives. These results were submitted to AESRD as part of the requested amendment of its environmental approval. However, the Commission notes that when the contribution of the proposed power plant is added to the baseline results, the maximum concentrations remain essentially unchanged; the project s contribution to air emissions would be relatively small. The proposed power plant would also incorporate a catalytic reduction for post-combustion emissions control which would further reduce emissions of NO x and SO x. The Commission finds that the environmental benefits from emissions mitigation and tailings management are significant. 34. Based on the foregoing, the Commission finds that the potential overall adverse environmental impacts of the project are minimal. As a result, the Commission concludes that the construction and operation of the proposed power plant is in the public interest from an environmental perspective. 35. The Commission also finds that the predicted noise levels are in compliance with AUC Rule Based on the foregoing, in accordance with Section 17 of the Alberta Utilities Commission Act, the Commission finds that construction and operation of the proposed power plant is in the public interest, having regard to the social and economic effects of the proposed power plant and its effects on the environment. 37. In making its decision whether to amend Syncrude s Industrial System Designation, the Commission has considered the applicable principles and criteria contained in Section 4 of the Hydro and Electric Energy Act. Accordingly, the Commission finds that each of the criteria contained in sections 4(3)(a), (b), (c), (d), (e), (f) and (g) of the Hydro and Electric Energy Act has been met to warrant inclusion of the proposed power plant as part of Syncrude s Industrial System Designation. The Commission grants the applied for connection order based on the technical specifications provided in the application and the AESO s opinion that the proposed connection would not adversely impact the AIES. AUC Decision (July 17, 2014) 5

8 Mildred Lake Power Plant Syncrude Canada Ltd. 4. Decision 38. Pursuant to sections 4, 11 and 18 of the Hydro and Electric Energy Act the Commission approves the application and grants Syncrude: Approval No. U July 17, 2014 to construct the Mildred Lake power plant as set out in Appendix 1 (Appendix 1 will be distributed separately). Order No. U July 17, 2014 to alter Syncrude s ISD as set out in Appendix 2 (Appendix 2 will be distributed separately). Order No. U July 17, 2014 to connect Syncrude s power plant to the AIES as set out in Appendix 3 (Appendix 3 will be distributed separately). Dated on July 17, The Alberta Utilities Commission (original signed by) Neil Jamieson Commission Member 6 AUC Decision (July 17, 2014)

9 Mildred Lake Power Plant Syncrude Canada Ltd. Appendix 1 Standing letter AUC Decision (July 17, 2014) 7

10 June 19, 2014 To: Interested parties Syncrude Canada Ltd. Proposed 92-MW Generator at Mildred Lake Facility Application No Proceeding No Ruling on standing 1 Introduction 1. In this ruling, the Commission must decide if the persons who filed a submission with respect to the above-referenced application have demonstrated that they have rights that may be directly and adversely affected by the Commission s decision on the proposed project application. A person who demonstrates the potential for direct and adverse effect is said to have standing. 2. The Commission asked me to write to you to provide its ruling and reasons for its ruling on the standing of the party that filed a statement of intent to participate in this proceeding. 2 Background 3. The applicant, Syncrude Canada Ltd. (Syncrude) owns and operates the existing oilsands mining, extraction and upgrading facilities known as the Mildred Lake Plant located approximately 30 kilometers north of Fort McMurray, Alberta. Proceeding No is an application to construct a gas turbine generator with a capacity of 92 megawatts (MW) (the proposed power plant or the proposed project) on the Mildred Lake Plant site. 4. The proposed power plant is surrounded by Syncrude s mine and tailings facilities, and other oilsands operations. The proposed project is located on disturbed Crown land within a heavily industrialized site; no new land use dispositions would be required under the Public Lands Act for the proposed power plant. 5. On April 4, 2014, the Commission issued a notice of application for the above-referenced proceeding. In the notice of application, the Commission directed any person who had concerns or objections to the application, or who wished to support the application to file a submission by April 25, On May 16, 2014, the Commission received a letter from the Mikisew Cree First Nation asserting that it has rights that may be directly and adversely affected by the application and indicating that it learned of the application, after the deadline for submissions had past. The

11 June 19, 2014 Page 2 of 8 Mikisew Cree First Nation requested, among other things, that the Commission extend the deadline to allow it to file a statement of intent to participate. 7. The Commission extended the deadline for submissions until May 26, 2014, to accommodate parties, including the Mikisew Cree First Nation, who had not received the original notice. 8. On May 23, 2014, the Commission received a motion from the Athabasca Chipewyan First Nation (ACFN) requesting an extension to file its statement of intent to participate on June 2, By letter dated May 26, 2014, the Commission granted the ACFN s request. 10. The Commission received three submissions from interested parties in response to the notice of application. 3 Views of interested parties 3.1 Objections and statements of intent to participate 11. By letter dated April 25, 2014, TransCanada Energy Ltd. (TransCanada) stated that it is the owner of the MacKay River power plant located in the vicinity of the proposed project. TransCanada indicated that it may be directly and adversely affected by the operation of the proposed power plant and the impact its operation would have on the Alberta Interconnected Electric System. TransCanada indicated that information provided was insufficient to determine the impact on TransCanada. Therefore, it requested that it be given an opportunity to review information necessary to determine that Syncrude s plant expansion would not adversely impact TransCanada s operations. On May 16, 2014, TransCanada wrote to the Commission stating that it had received additional information from the applicant and had no concern with the proposed power plant. 12. By letter dated April 25, 2014, ATCO Power Canada Ltd. (ATCO Power) requested that the Commission establish a process for the consideration of Syncrude s application for the proposed power plant, and provide interested parties with an opportunity to review studies that had been referred to by the applicant. On May 15, 2014, ATCO Power advised that it had an opportunity to review this additional information and no longer requested further process. 13. The Commission did not receive any further submissions from the Mikisew Cree First Nation. 14. The ACFN submitted a statement of intent to participate on behalf of its members. The ACFN explained that it is a signatory to Treaty 8 which guaranteed the ACFN s hunting, gathering, fishing, and trapping rights in support of sustaining its traditional livelihood. Accordingly, the ACFN asserted constitutionally protected aboriginal and treaty rights pursuant to Section 35 of the Constitution Act, 1982.

12 June 19, 2014 Page 3 of In its statement of intent to participate, the ACFN explained that eight reserves are set aside for the use and benefit of its members, all of which are located downstream of the proposed project and that the nearest reserve is Fort McKay, located approximately 15 kilometres north of the proposed project. 16. The ACFN submitted that the proposed power plant is located within its traditional lands and that its members continue to exercise their constitutional treaty rights in the vicinity of and downstream of the proposed project. It contended that the proposed project may directly and adversely affect the ACFN members ability to exercise their treaty rights in the immediate vicinity of, and downstream of the proposed power plant site. The Athabasca River is the most proximate water body to the proposed project, and is within 2,000 metres of the boundary of the existing Mildred Lake Plant site. The ACFN submitted several documents in support of the rights it had asserted The ACFN stated that it was concerned with the implications of the proposed project and how this will result in increased use of water from the Athabasca River, and increased air emissions including acidifying emissions, particulate matter, and polycyclic aromatic hydrocarbons (PAH). According to the ACFN, the proposed project may directly and adversely impact the ACFN s treaty rights by way of the use of water from the Athabasca River, and from the air emissions that will extend well beyond the proposed power plant s site boundaries. Specifically, the ACFN stated that the Project - including the withdrawal of water, and chemicals released by the Project into the airshed may directly and adversely affect the constitutional rights of ACFN The ACFN submitted affidavits from several of its members and other reports in support of its statement of intent to participate. 3 In their respective affidavits, the ACFN members stated that they utilized a portion of the Athabasca River corridor which is located within 2,000 metres of the existing site and that navigation is already difficult in that portion of the Athabasca River. The members also indicated that any further water withdrawals would make it more difficult or impossible to exercise their rights. In addition, one member anticipated that there may be increased garbage in the Athabasca River should the proposed project proceed. 19. In its submission, the ACFN stated that an oral hearing is the appropriate forum that would allow the ACFN to lead evidence regarding Syncrude s July, 1999 Environmental Mitigation Agreement with the ACFN (the mitigation agreement) in relation to Syncrude s Including Exhibit No McCormack ACFN Ethnohistory, Exhibit No Royal Commission on aboriginal Peoples Excerpt, Exhibit No As Long as the River Flows, Bruce MacLean Community Based Monitoring, Exhibit No Index of Case law. Exhibit No Jenny Biem letter to AUC at page 4. Exhibit No Affidavit of Michael Mercredi June 1, Exhibit No Affidavit of Lisa King June 1, Exhibit No Affidavit of Amanda Annand May 31, Exhibit No Jack Pine Mine Expansion Hearing. Exhibit No Carver Presentation Nov Exhibit No Syncrude and ACFN Environmental Mitigation Agreement Exhibit No Kurek et al Athabasca Oil Sands Legacy. Exhibit No Kindzeirski et al study. Exhibit No Effects of Acid Rain Surface Waters and Aquatic Animals.

13 June 19, 2014 Page 4 of 8 acidifying emissions, as well as of the extent and nature of potential impacts of the Syncrude application on the continued exercise of the ACFN s treaty rights. 20. Syncrude, by letter dated June 10, 2014, commented upon the standing request of the ACFN. In its submission, Syncrude stated that there is no evidence that the ACFN may be directly and adversely affected by the proposed power plant. In response to the ACFN s assertion that water withdrawals may adversely affect the ACFN s aboriginal and treaty rights, Syncrude advised that the water withdrawals for the proposed project were approved by Alberta Environment Sustainable Resource Development under Syncrude s Athabasca River Water Diversion License in relation to its current oilsands operations. The total water withdrawals would remain well below Syncrude s licensed limit and would be within water withdrawal volumes contemplated in the Lower Athabasca Water Management Framework. Further, Syncrude s annual total intake is less than 0.2 per cent of the annual flow on the Athabasca River, and water withdrawal for the proposed project, relative to annual flow, would be negligible. Syncrude stated that while it understands that use of the Athabasca River is important to the ACFN, it is simply not possible for water withdrawal for the proposed project to impact that use, or the ACFN s ability to navigate the river. 21. With respect to the ACFN s concern about air emissions, Syncrude stated that the proposed project does not have the potential to directly and adversely affect the ACFN s treaty and aboriginal rights due to air emissions; to the contrary, the proposed project provides the power necessary for one of the largest air emission reduction projects undertaken in the oilsands region. Syncrude indicated that it completed a detailed air quality assessment and, based on the results of this assessment, the potential adverse changes to the air quality from the proposed power plant are expected to be minimal. In response to the ACFN s concern about increased particulate and PAH and their impact on the ACFN, Syncrude submitted that there is no evidence that particulate emissions or PAH emissions will increase as a result of the proposed project. Syncrude also noted the proposed project, if approved, would allow Syncrude to significantly reduce sulphur oxide (SOx) and nitrogen oxide (NOx) emissions. 22. With respect to the concern expressed about increased garbage, Syncrude stated that there is no evidence to support the ACFN s allegation that the proposed project will result in more garbage in the Athabasca River. 23. With respect to the ACFN s assertion that Syncrude had acknowledged in the mitigation agreement that the ACFN would be impacted by the proposed project, Syncrude stated that this agreement has nothing to do with the proposed project and that the mitigation agreement referred to by the ACFN addresses impacts from the its oilsands upgrader expansion project. 4 The Commission s ruling on standing 4.1 How the Commission determines standing 24. Standing before the Commission is determined in accordance with subsection 9(2) of the Alberta Utilities Commission Act, which states: (2) If it appears to the Commission that its decision or order on an application may directly and adversely affect the rights of a person, the Commission shall

14 June 19, 2014 Page 5 of 8 (a) give notice of the application in accordance with the Commission rules, (b) give the person a reasonable opportunity of learning the facts bearing on the application as presented to the Commission by the applicant and other parties to the application, and (c) hold a hearing. 25. In Cheyne v. Alberta (Utilities Commission), the Alberta Court of Appeal characterized section 9(2) as the equivalent of section 26(2) of the Energy Resources Conservation Act and confirmed that the two-part test for standing under section 26(2) applies to subsection 9(2). In an earlier decision, Dene Tha v. Alberta (Energy and Utilities Board), the Alberta Court of Appeal described that two-part test as follows: s. 26(2) has two branches. First is a legal test, and second is a factual one. The legal test asks whether the claim right or interest being asserted by the person is one known to the law. The second branch asks whether the Board has information which shows that the application before the Board may directly and adversely affect those interests or rights. The second test is factual In its description of the factual test in the Dene Tha decision, the Alberta Court of Appeal stated that: It was argued before us that more recent case law on prima facie infringement of aboriginal or treaty rights changed things. But the Board still needed some facts to go on. It is not compelled by this legislation to order intervention and a hearing whenever anyone anywhere in Alberta merely asserts a possible aboriginal or treaty right. Some degree of location or connection between the work proposed and the right asserted is reasonable. What degree is a question of fact for the Board In Sawyer v. Alberta (Energy and Utilities Board), the Alberta Court of Appeal commented further on the factual component of the standing test and stated that in considering the location or connection, the Board is entitled to look at factors such as residence, the presence or absence of other wells in the area, and the frequency and duration of the applicant s use of the area near the proposed site. 28. In Decision , 6 the Commission considered an application by Maxim Power Corp. to construct and operate a new 500-MW coal-fired generating unit at the existing H.R. Milner generation station. The Commission received submissions on standing from individuals who owned or occupied lands approximately 20 kilometres from the proposed plant. The persons seeking standing raised issues relating to greenhouse gas emissions criteria, air contaminants and mercury, climate change and the impacts to water quantity and quality and fish in the Smoky River. The Commission found as follows with respect to standing in that case:.the Commission would consider that person to have standing and the Commission would proceed with a public hearing at which that person would be able to participate Dene Tha' First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68, at paragraph 10. Ibid, at paragraph 14. AUC Decision : Maxim Power Corp. H.R. Milner Power Plant Expansion, Application No , Proceeding ID No. 203, August 10, 2011.

15 June 19, 2014 Page 6 of 8 Typically, this test is met by a person who owns or occupies land in proximity to a proposed development, and who substantiates an interest, with a direct bearing on his or her lands or other right known to law, which could be directly and adversely impacted by a decision of the Commission with respect to the application. This is the essence of the test for standing as set out in the Cheyne case and Section 9(2) of the Alberta Utilities Commission Act. Matters of interest to parties living some distance from a proposed project and matters of general interest to persons in Alberta do not typically meet the statutory test for standing unless they are able to show that their rights may be directly and adversely impacted by a decision of the Commission with respect to the application If the Commission finds that a person has standing pursuant to Section 9(2) of the Alberta Utilities Commission Act, it must hold a hearing to consider the person s concerns about the subject application. Further, persons with standing have the right to fully participate in the hearing, including the right to file evidence in support of their position, the right to question or cross-examine the applicant(s) on its evidence and the right to make argument. 4.2 Ruling on standing 30. In making its ruling, the Commission reviewed and considered the submissions received from the ACFN and Syncrude in light of the proposed project Mikisew Cree First Nation 31. As stated above, the Commission did not receive a statement of intent to participate or other submission from the Mikisew Cree First Nation after it submitted its letter dated May 16, In its letter, the Mikisew Cree First Nation stated that it holds Treaty 8 rights on unoccupied Crown lands located near or downstream from Syncrude s operations, including lands within the Athabasca River Corridor located within 2000 metres of the plant site and that it believed that the proposed project may directly and adversely impact its treaty rights and interests. 32. For the purposes of this ruling, the Commission is prepared to assume, without deciding, that the Mikisew Cree First Nation is entitled to exercise the rights it has asserted in its submission. 9 However, based on the information provided by the Mikisew Cree First Nation, the Commission finds that it has not established, on a factual basis, how it may be directly and adversely affected by the Commission s decision on the application. As a result, the Commission is not satisfied that Mikisew Cree First Nation has standing in relation to this application AUC Decision , at paragraph 20. Exhibit No Mikisew Cree First Nation correspondence to AUC re: Syncrude application Exhibit No Affidavit of Michael Mercredi June 1, 2014, Exhibit Affidavit of Lisa King June 1, Exhibit No Affidavit of Amanda Annand May 31, 2014, Exhibit McCormack ACFN Ethnohistory, Exhibit No Royal Commission on aboriginal Peoples Excerpt, Exhibit No As Long as the River Flows, Bruce MacLean Community Based Monitoring, Exhibit Jack Pine Mine Expansion Hearing, Exhibit No Carver Presentation Nov , Exhibit No Syncrude and ACFN Environmental Mitigation Agreement 1999, Exhibit No Kurek et al Athabasca Oil Sands Legacy, Exhibit No Kindzeirski et al study, Exhibit No Effects of Acid Rain Surface Waters and Aquatic Animals, Exhibit No Jenny Biem letter to AUC, and Exhibit No Index of Caselaw.

16 June 19, 2014 Page 7 of The ACFN 33. For the purposes of this ruling, the Commission is prepared to assume, without deciding, that the ACFN is entitled to exercise the rights it has asserted in its submissions The Commission finds, for the reasons that follow, that the ACFN has failed to demonstrate how the rights it has asserted may be directly and adversely affected by the Commission s decision on the proposed project. 35. The Commission has considered the ACFN s submission that its members live in Fort MacKay, 15 kilometres away from the proposed project, that one of its members works in a school located approximately three and a half kilometres away from the proposed project, and that its members exercise their aboriginal and treaty rights in the Athabasca River located two kilometres away from the Mildred Lake Plant site. The Commission also considers that the proposed power plant site is a 100 metre by 200 metre area in the middle of the Mildred Lake oilsands development, which extends approximately five kilometres from the boundary of the proposed power plant. Based on its review of the application, the Commission understands that the proposed power plant, if approved, would be more than five kilometres away from the Athabasca River and approximately 15 kilometers from residences. 36. While proximity to a project is not the only factor that the Commission will consider when reviewing an application for standing, it is an important one. Another important factor is the nature of the proposed project itself. In this case, the proposed project, would be constructed on pre-disturbed Crown land on the existing Mildred Lake Plant site. Also, the Commission notes that electrical power from the proposed project would be used to support environmental units and sustainment projects. Specifically, the Commission points to the applicant s submission that over 80 per cent of the proposed project s electricity output would support tailings management and emissions reduction. 11 Accordingly, given the nature of the proposed project and the distance from the proposed project to the areas where the ACFN has stated that its members exercise their rights, the Commission finds that the ACFN has not established a sufficient connection between approval of the proposed project and a potential adverse impact on its rights. 37. As the Commission understands it, the ACFN is not asserting the right to pursue treaty rights on the existing Mildred Lake Plant site but, rather it is asserting those rights in association with the locations outside of the proposed project site, the closest location being the Athabasca River Exhibit No Affidavit of Michael Mercredi June 1, 2014, Exhibit Affidavit of Lisa King June 1, Exhibit No Affidavit of Amanda Annand May 31, 2014, Exhibit McCormack ACFN Ethnohistory, Exhibit No Royal Commission on aboriginal Peoples Excerpt, Exhibit No As Long as the River Flows, Bruce MacLean Community Based Monitoring, Exhibit No Jack Pine Mine Expansion Hearing, Exhibit No Carver Presentation Nov , Exhibit Syncrude and ACFN Environmental Mitigation Agreement 1999, Exhibit No Kurek et al Athabasca Oil Sands Legacy, Exhibit No Kindzeirski et al study, Exhibit No Effects of Acid Rain Surface Waters and Aquatic Animals, Exhibit No Jenny Biem letter to AUC, and Exhibit No Index of Caselaw. Exhibit No Response to ACFN concerns with Syncrude's SUSP application, page 2.

17 June 19, 2014 Page 8 of The ACFN also expressed concerns that were more general in nature and related to the proposed project s potential impact to area water and air that it claimed would impact the exercise of its members treaty rights. The Commission understands that, if approved, the proposed project s water withdrawals would be minimal and within Syncrude s existing licenses, and the proposed project would not increase the volume of wastewater generated or added to wastewater streams. Also, air emissions generated by the proposed project would be negligible compared to other facility and regional emissions. 12 Further, the proposed project would incorporate post-combustion technology to reduce NO x emissions from the proposed project and would decrease area SOx emissions by allowing Syncrude s sulphur emissions reduction project to operate at full capacity. 13 While the ACFN listed a number of general concerns about the proposed project, it failed to demonstrate how the Commission s decision on the application may directly and adversely affect the rights it asserted at the locations identified by its members as important for the carrying out of traditional activities. The Commission therefore finds that the ACFN has not demonstrated, on a factual basis, that it may be directly and adversely affected by the construction and operation of the proposed power plant. 39. Based on the information presented by the ACFN and taking into account the nature of the proposed project, it is the Commission s view that the ACFN has not demonstrated that its treaty rights exercised in and around the Athabasca River would be affected by the proposed power plant as the Athabasca River is far enough away to prevent direct and adverse effects. 40. Based on the forgoing, the Commission is not satisfied that the ACFN has standing in relation to this application. 5 Conclusion 41. The Commission considers that a hearing is not required as the Commission s decision or order regarding this application will not directly and adversely affect the rights of a person pursuant to Section 9 of the Alberta Utilities Commission Act. Yours truly, Shanelle Sinclair Commission Counsel Exhibit No Response to ACFN concerns with Syncrude's SUSP application page 4. Exhibit No Response to ACFN concerns with Syncrude's SUSP application page 4.