9 April 2025

The CNSC staff submission (CMD 22-H7) for the February 22, 2022 Part 1 hearing on construction of the NSDF indicates that the financial guarantee for decommissioning of all AECL facilities, including the NSDF, may have expired in 2020.   

Regarding a financial guarantee for decommissioning of AECL facilities, Greg Rickford, Minister of Natural Resources in the Harper government, signed a letter on July 31, 2015 recognizing “that the liabilities of AECL are the liabilities of Her Majesty in Right of Canada.”  In CMD 22-H7, CNSC staff stated that  “CNL confirmed that the provisions in the 2015 letter [65] remain valid on August 25, 2020 [66]. In reference [66], staff cited a “CNL letter, P. Boyle to M. Kavita” — presumably, a letter from Phil Boyle, a former Canadian Nuclear Laboratories vice president, to Kavita Murphy, a former director general at the CNSC (she retired in October 2024).

This statement by CNSC staff regarding the validity of the financial guarantee was questionable, considering that 

• CNL is a private company that cannot express a commitment from a government as a financial guarantee,
• financial guarantees must be revised every five years, 
• there is no evidence that the 2015 financial guarantee remained valid after August 25, 2020,
• the CNSC staff statement was in CMD 22-H7, dated January 24, 2022 — over a year after August 15, 2020, and over six years after Mr. Rickford signed the letter, and 
• Commission approval to construct the NSDF was issued on January 11, 2014, over nine years after Mr. Rickford signed the letter. 

Section 15 of REGDOC-3.3.1, Financial Guarantees for Decommissioning of Nuclear Facilities and Termination of Licensed Activities says that 

“licensees must revise their financial guarantee at a minimum every five years or earlier when requested by the Commission.”

The relevant sections of CMD 22-H7 follow:

6.3.1 Discussion 

With respect to a financial guarantee required by the paragraph 3(1)(l) of the General Nuclear Safety and Control Regulations, REGDOC-3.3.1 states that an expressed commitment from a federal or provincial government is an acceptable form of financial guarantee. 

AECL is a Schedule III, Part 1 Crown Corporation under the Financial Administration Act and an agent of Her Majesty in Right of Canada. As an agent of Her Majesty in Right of Canada, AECL’s liabilities are ultimately liabilities of Her Majesty in Right of Canada. While the restructuring of AECL has seen the ownership of CNL transferred to a private-sector contractor, the Canadian National Energy Alliance, AECL retains ownership of the lands, assets and liabilities associated with CNL’s licences. 

These liabilities have been officially recognized by the Federal Minister of Natural Resources in a letter dated July 31, 2015 [65]. This letter states that AECL will retain ownership of the lands, assets and liabilities associated with CNL’s licences, including the CRL site, and states that the liabilities of AECL are the liabilities of Her Majesty in Right of Canada. CNL confirmed that the provisions in the 2015 letter [65] remain valid on August 25, 2020 [66]. 

6.3.2 Conclusion 

CNSC staff conclude that the financial guarantee is sufficient for the decommissioning of the CRL site, including the NSDF supporting facilities and infrastructure, should it be approved by the Commission.  

The Commission’s Record of Decision approving construction of the NSDF accepted the staff conclusion, saying ” The Commission is satisfied that the existing financial guarantee, in the form of an expressed commitment from the federal government, remains sufficient for the decommissioning of the CRL site, including the NSDF and supporting infrastructure.”