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A duck caught in a Syncrude tailing pond. Image came from court and was taken by Todd Powell, with the Alberta government. Taken on the last three days of April, 2008.Handout

More than two years after 1,606 dead ducks were first found in a northern Alberta industrial tailings pond, a judge is scheduled to rule Friday afternoon on whether the deaths amounted to a violation of provincial or federal law.

A guilty verdict would be a major victory for environmentalists, long critical of Alberta's oil sands. But energy giant Syncrude Canada Ltd., which has been operating in the oil sands for over 30 years, warns such a verdict would effectively make tailings ponds - which are essential in the refining of Alberta's oil sands bitumen - illegal, bringing the economically vital industry to a standstill.

The charges are politically charged but relatively minor in nature, with a combined maximum fine of $800,000. However, the oil company has fought them at great cost and in the face of significant opposition.

Photos of oil-covered birds released during this year's two-month trial became a rallying point for environmentalists opposed to the oilsands development. Critics allege the projects carry a heavy environmental toll, but they serve as the backbone of Alberta's economy.

Provincial court judge Ken Tjosvold is expected to rule around 2 p.m. Mountain time Friday. Syncrude faces one provincial charge of failing to prevent the toxic bitumen in its tailings pond from contacting the birds, and one federal charge of storing a substance in a manner harmful to migratory birds.

The case dates back to April 28, 2008, when the ducks were first discovered in Syncrude's Aurora tailings pond, a 12-square-kilometre toxic lake used in industrial processing of the bitumen mined from oil sands.

Heavy equipment operator Robert Colson made the discovery on a Monday morning - the Syncrude team assigned to keep birds off the ponds hadn't worked since the previous Thursday. (The accounts of employees are filed as part of the case, and were made public after a court challenge by the Edmonton Journal.)

Mr. Colson told two investigators what he discovered between 8:45 and 9 a.m. that Monday morning, according to one of the transcripts.

"I walked to the edge of the dike ... and I noticed it looked like lumps," Mr. Colson said. "It just looked odd to me, you know what mean? But I wasn't really close enough to it to tell what it was, so I was in the area for a few more minutes and I noticed a few birds come in and land at that time, and that's when i realized what was going on."

He estimated he saw about 300 lumps, before seeing between half a dozen and a dozen birds flying in.

He called his boss, Lloyd Benio, a 30-year veteran of Syncrude and leader of a tailings pond team. Mr. Benio happened to be nearby with his own boss, Bruno Erelis. The company in turn called its Bird and Ecology Team leader Dave Matthews, who offered a higher estimate of the so-called lumps.

"500 plus," Mr. Matthews, who has since passed away, told investigators in one of two interviews in 2008.

The province was called in, and in the end 1,606 dead birds were discovered in the massive pond.

The case rests on what Syncrude could have done to prevent the birds from landing on the pond in the first place.

Oil companies operating tailings ponds, which are licensed by the province, are required to have bird deterrent programs including scare cannons, effigies and other tactics such as shiny, reflective kite-like objects to ward off the birds, which include local and migratory flocks. While other companies had their deterrent programs up and running in early April, as prosecutors alleged was customary, Syncrude's wasn't yet operational.

By the morning of April 28th, they had only 6 cannons (of about 140) in place, and none around the Aurora pond, the primary settling basin in Syncrude's decade-old Aurora mine, which lies northeast of its original operations.

The interview with Mr. Matthews suggests the company took its bird deterrent program less seriously year after year. In the late 1990s, its bird team had about 13 people and would typically start on the first or second week of April, Mr. Matthews said. This particular year, they had eight staff who didn't start until the 14th, at the earliest, and were led by Mr. Matthews, who while a longtime employee did not have wildlife training. Many of the eight staff were further delayed by payroll issues and a funeral, according to testimony. Meanwhile, the team only had one pickup truck of its customary four, due to a shortage of rental vehicles in booming Fort McMurray and the fact that they'd lent one out, Mr. Matthews said.

They also worked a four-day week, Monday through Thursday. A major snowstorm hit over the weekend before the birds were discovered, suggesting they may have been dead for up to three days before being discovered.

"The birds died because there was no protection [keeping them from the pond] Why was there no protection? It wasn't set up and wasn't turned on. It was too late. The birds got there first," provincial prosecutor Susan McRory said in her closing arguments in the case. "You have what I would suggest is a system that isn't capable of responding, isn't capable of responding because they don't work weekends."

Mr. Matthews and his team also had advance notice, at least 11 days before the grim discovery, that birds had been spotted in the area. Syncrude employee Frederick (Rick) Corcoran called Mr. Matthews to report the sightings, and was told "basically his people were just started that week," according to Mr. Corcoran's statement to investigators.

Mr. Corcoran then e-mailed six supervisors in the area, notifying them that birds had been spotted and that Mr. Matthews had acknowledged the lack of deterrents. The e-mail, sent on April 17, was relied on heavily by prosecutors.

"Guys, I spoke to Dave Matthews again this a.m., expressed my concern at the number of complaints surrounding birds landing in the pond due to lack of deterrents. He will send someone up today to put out a few cannons," wrote Mr. Corcoran.

But Mr. Matthews' pledge went unfulfilled, and no cannons were placed. It's unclear whether any of the six managers called Mr. Matthews to follow up on Mr. Corcoran's request. That such concerns were raised 11 days before the discovery of the dead birds and didn't lead to any cannons being placed is also largely unexplained.

Syncrude employees vary in their characterization of the toxicity of the ponds. Mr. Matthews at first shrugged off bird sightings, saying he often saw birds land on the lake in parts not covered in bitumen, and fly away seemingly unaffected.

"I couldn't tell you how many ducks I've seen land on our tailings pond in the cleaner water part of it, and they've been there paddling around for hours and for days, and they fly away just like they were out in the middle of the clean river," he said.

But Mr. Erelis, a supervisor, described it differently.

"It's water left over from an industrial process, so you would want to - you would want to be careful what you swim in," he said to investigators, who asked Mr. Matthews the same question - would he swim in the pond?

"No," he replied.

Syncrude president and CEO Tom Katinas said last year the deaths are "unacceptable" and "shouldn't have happened." The company has since overhauled its bird deterrent program.

The charges themselves, both sides agree, are largely unprecedented in this context. As such, Robert White - a veteran Edmonton lawyer acting as the lead defender for Syncrude - has attacked them and earlier asked unsuccessfully for the judge to toss the charges out.

Specifically, he argued that the birds were forced to land on the pond at a time when most other bodies of water were still frozen and because of the snowstorm in the days before the discovery. Federal prosecutor Kent Brown said it wasn't acceptable to blame weather, when even Syncrude's own previous practice would have seen cannons installed well before such a storm hit.

"I would submit that bad weather is not unforeseeable in Northern Alberta in the spring. In fact, I would submit bad weather is to be expected," Mr. Brown said in his closing arguments.

But Mr. White did not regularly argue nuances of the case. Other than cross-examining Crown witnesses, he called no evidence. Even if scare cannons were installed, the storm would have forced the birds to land anyhow, he argued. (Syncrude staff didn't all blame the weather. Mr. Erelis was asked whether the deterrent program worked, responding: "No, not if there were birds in the pond.") Instead, Mr. White attacked the merit of the charges themselves, saying the provincial law is designed for spills or leaks, where a toxic substance actively comes to an animal, and therefore does not apply when animals come to the substance itself. ("The bird is contaminated by the substance whether it moves to the substance or the substance moves to it," Mr. Tjosvold, the judge, replied in rejecting the argument.)

More broadly, Mr. White argued that because the tailings pond was licensed, a guilty verdict on either charge could spell doom for the oil sands because even properly licensed ponds would be in violation of environmental laws.

"That means government is complicit in the crime, and the industry will come to a stop," Mr. White told reporters outside court after one day of arguments. "It is that high-stakes."

The lawyer also clashed repeatedly with local journalists covering the case, lambasting them for what he characterized as sensationalizing the story and lamenting that "the public thinks that Syncrude's being tried for killing ducks." He alleged his client has seen its name dragged through the mud by a province and federal government eager to make an example and prove their environmental bona fides. "That is a denial of fairness, justice, common sense and decency," Mr. White argued.

But he insisted the reason why Syncrude chose to fight the high-profile charges, instead of simply pleading guilty and paying a fine, was to preserve the very ponds themselves.

"I'm sure it passed your minds: Why is it for all these weeks, sometimes with four lawyers here, we've been working so hard on this case? And now you know," he said, later adding: "There would be two options: break the law [by operating tailings ponds that would inevitably kill birds]or shut down."

Earlier, Ms. McRory rejected his foreboding assertion that a guilty verdict would have ripple effects and shut down the ponds.

"The concept that a successful prosecution under this legislation would shut down oil companies does not make sense," she said.

Friday's ruling could be complicated.

The judge could find Syncrude guilty on either the provincial or federal charge, on both, or on neither. But if the judge decides Syncrude did its due diligence in attempting to keep ducks off its pond, Mr. Brown has already signalled he will not then ask for a conviction on the federal charge.

The courtroom in St. Alberta, Alta., a suburb of Edmonton, is expected to be packed with observers, media and environmental advocates for the Friday afternoon ruling.

It will put to rest the two years of interviews, questioning, court arguments and public posturing that has pitted government lawyers against an energy giant that is one of the engines of Alberta's economy - all over the now-infamous ducks, discovered two years ago on a day that Syncrude staff won't soon forget.

"I remember the 28th, of course," Mr. Corcoran told investigators. "Everybody remembers it now."

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