June 29, 2023

The seven year long, CNSC-led, Environmental Assessment of the proposed giant radioactive waste mound or “NSDF” has been fraught with serious problems and deficiencies.  These deficiencies, in our view, have led to a poor-quality assessment, leaving the Commission with poor recommendations on which to base its EA decision.

Inadequate consultation with Indigenous Peoples on whose unceded territory the proposed radioactive dump would be built

CNSC and the proponent announced the design, site and commencement of an EA for the dump in 2016. No consultation with Algonquin First Nations occurred prior to the announcement of the design, site and EA. Some consultations occurred during the protracted EA, but not all Algonquin First Nations were consulted. As a seeming afterthought, after the final NSDF licensing hearing concluded in June 2022, the CNSC decided to leave the record open for further consultations with two of the eleven Algonquin First Nations whose peoples have lived in the Ottawa River watershed since time immemorial, and whose people never ceded their territory to the Crown via a treaty.

Problems in the early stages with the project description and scoping for the EA

1 The CNSC dismissed critical comments on the project description, submitted by radioactive waste management experts, that should have resulted in a fundamental rethinking of the project design, or at least major changes to the scope of the Environmental Assessment.

2  The CNSC’s scoping of the Near Surface Disposal Project (NSDF) was seriously flawed. A combined scoping decision for three separate projects (the NSDF, and the entombment of the NPD and WR-1 reactors) was made nine days before the draft environmental impact statement (EIS) for the NSDF project was released. The CNSC allowed the proponent to conduct environmental impact studies before the project scope was determined. The scoping decision ignored many serious criticisms of the NSDF project description. It was released by a 1-person “Panel” comprised solely of the CNSC President. The public was not apprised of the “Panel” hearing, which may never have actually taken place.

Obstacles to “meaningful public participation”

3  The CNSC did not require the NSDF proponent to translate documents into French, despite a clear potential for adverse environmental impacts in the Province of Quebec. The closest residents to the NSDF project site are in Quebec. Lack of access to French language documents led to a complaint from a Quebec citizen and a decision by the Commissioner of Official Languages to require translation of the draft EIS.

4  The CNSC delayed or refused to provide access to documents referenced in the draft EIS for the Near Surface Disposal Project. A footnote on page 3-14 of the draft EIS (12) states that “The Safety Analysis Report demonstrates that even after failure of some of the design features, the wastes do not present a risk to the public and environment.” However, the Safety Analysis Report was not released until after the public comment period on the draft EIS ended. Key portions of this document (such as section 4.2.1.3 on “Nuclear Criticality Safety”) were redacted.

5  The CNSC did not provide the “meaningful opportunities for public participation” required by section 4(1)(e) of CEAA 2012.  CNSC closed  the record for public comments pursuant to the Environmental Assessment in August 2017 following CNL’s release of a draft Environmental Impact Statement.  This created nearly a 5-year gap before the May/June 2022 hearing.  CNSC provided no opportunity for the public to provide formally recorded comments on the final EIS, despite the numerous changes made to the project that are reflected in it.

6 The CNSC arbitrarily decided that written intervenors at the May/June 2022 hearing would not have the right to make final submissions.

7  The CNSC’s January 31, 2023 Notice of Public Hearing and Procedural Guidance for Final Submissions said that “new information may not be presented.”  This was changed very close to the submission deadline (on May 17, 2023) to “Final submissions may reference any material on the record.”

8  The CNSC public hearings provided no opportunity for witnesses to be cross-examined.

9 During public hearings, the proponent (CNL), its contractor (AECL) and the regulator (CNSC) were given unlimited time to make their arguments, but intervenors (other than First Nations) were restricted to 10 minute presentations. In some cases this required thousands of hours of research to be summarized in 10 minutes.

10 The document registry for the NSDF EA was very cumbersome and awkward and did not facilitate access to submissions by all interested parties.

CNSC staff recommendations to Commissioners fail to mention that the Commission is required to refer the decision to Cabinet if the project is likely to cause significant adverse environmental effects 

12 There is no mention of CEAA 2012 Section 52 in CMD 22-H7.  In this document CNSC staff recommend that the Commission decide that the NSDF is not likely to cause significant adverse environmental effects.  However, Section 52 says the Commission could decide that the NSDF is likely to cause significant adverse environmental effects; in which case the Commission must refer the matter to the Governor in Council (Cabinet).  Were CNSC staff so certain that the Commission would never dare to disagree with one of their recommendations that they felt it was not worth mentioning this option?  Regardless, this is a serious omission.  Information provided in CMD 22-H7 about “matters of regulatory interest” with respect to the proposed NSDF should be complete and objective.

CNSC staff allowed the proponent to write its own conditions (856 “mitigation measures”) and the manner in which they are written makes them impossible to enforce.

13. Section 53 of CEAA 2012 says that it is the decision maker — either the Commission or Cabinet  and not the proponent – that “must establish the conditions… that would permit a designated project to be carried out.”  However, CNSC staff allowed the proponent to write its own conditions (the 856 mitigation measures in CNL’s 105-page NSDF Consolidated Commitments List) in a manner that they would be impossible to enforce. There is no evidence that the Commission ever reviewed these conditions.  Furthermore, the CNSC staff draft licence handbook for the NSDF Project requires CNL to only implement mitigation measures during construction and pre-operation activities. Most of the significant adverse impacts of the NSDF Project would occur in the operation and post-closure phases. By only requiring mitigation of adverse effects occurring during construction and pre-operation activities, the CNSC’s approach would not mitigate the most significant adverse impacts of the NSDF Project.

“With regard to section 53, it is astounding that the CNSC has allowed the proponent, CNL, to write its own mitigation measures, and to write them in such a way that nearly all of them would be unverifiable.”

Ole Hendrickson, CCRCA researcher

Problems with the “Administrative Protocol” document

The “Administrative Protocol” is a document co-signed by the regulator and the proponent. It described the steps to be followed for the Environmental Assessment with milestones and target dates. 

Six different versions of Appendix A to the Protocol were published between 2016 and 2022.

The Administrative Protocol omitted any mention of the Duty to Consult with First Nations

At one point in the middle of the EA process all the dates for milestones were removed.  Interested parties were left with no idea when they might be required to allocate time to preparing final briefs and oral presentations.

An original provision for a dedicated Environmental Assessment hearing was removed. No Environmental Assessment hearing was ever held. The Environmental Assessment report was buried in a staff document and contained no references whatsoever.

And finally…

The CNSC, as responsible authority, was unable to complete the Environmental Assessment in a “timely manner” as required by section 4(1)(f) of CEAA 2012.

EAs normally are completed within one or two years. The EA of the NSDF is currently in its seventh year and counting.

Should the CNSC be responsible for environmental assessment?

The Expert Panel on Reform of Environmental Assessment recommended in its final report to the Minister of Environment and Climate Change in 2017 that the CNSC not be in charge of Environmental or Impact Assessments. The CNSC-led EA of the NSDF proposal was started before the Expert Panel review so it was conducted under previous legislation, but the flaws and failings documented above seem to suggest that removing the CNSC from involvement in Impact Assessment would be prudent.

Photo below by Robert Del Tredici, August 2018, Ottawa