January 29, 2018

Petition summary on the OAB website here: https://www.oag-bvg.gc.ca/internet/English/pet_413_e_43085.html

Environmental Assessment of Nuclear Projects

This petition is being submitted to the Office of the Auditor General of Canada in accordance with section 22 of the Auditor General Act by the Concerned Citizens of Renfrew County and Area (CCRCA) and the Old Fort William Cottagers’ Association (OFWCA).  We note that the concerns highlighted in this petition and the answers sought are also matters of importance to our colleagues in other organizations including the Canadian Coalition for Nuclear Responsibility, Pontiac Environmental Protection, the Greenspace Alliance of Canada’s Capital and Friends of the Earth Canada.

Purpose of Petition

This petition concerns an important issue for our country in the coming decades: the environmental assessment of nuclear projects, including those for managing Canada’s large volumes of radioactive waste.  To inform this issue we review the ongoing discussion of how Canada’s environmental assessment processes can regain public trust and how to ensure that decisions serve the public’s interest.  We draw upon the report of the Expert Panel, Building Common Ground: A New Vision for Impact Assessment in Canada (1); on the Minister of Environment and Climate Change Mandate Letter (2); and on the federal government’s Environmental and Regulatory Reviews: Discussion Paper (3).  We then pose questions for the various Ministers involved in the environmental assessment review and reform process, with a specific focus on how this process should address nuclear projects.

Background

Nuclear projects include construction and operation of new facilities such as uranium mines or nuclear reactors, refurbishment of existing facilities, decommissioning of facilities whose useful life is over, and management of wastes arising from activities such as mining, nuclear research and development, and nuclear power generation.

Managing nuclear wastes is a particularly challenging issue.  Nuclear waste has been accumulating in Canada for seven decades. Long-lived man-made radionuclides such as iodine-129, nickel-59, niobium-94, plutonium-239, plutonium-240, technetium-99, uranium-234 and zirconium-93 will be toxic to all life for many millennia. Facilities must be planned and built to look after the wastes in the best and most responsible manner possible, to keep them out of the biosphere for as long as they remain hazardous. 

Environmental assessment will be a key part of the process of establishing the necessary facilities. The best quality environmental assessment will be necessary in order to minimize pollution, protect the health of Canadians, protect ecosystems and avoid placing undue burdens on future generations.

Currently in Canada, under the Canadian Environmental Assessment Act, 2012 (CEAA), the Canadian Nuclear Safety Commission (CNSC) is the sole responsible authority for the environmental assessment of nuclear projects.

After conducting extensive hearings across Canada, the Expert Panel on Environmental Assessment Reform issued its final report In April 2017.  It recommends that an independent assessment authority replace the CNSC as responsible authority for nuclear projects (1). The Panel accepted the arguments made by hearing participants that “industry-specific regulatory agencies are more focused on technical issues than they are on the planning process that is fundamental to a thorough IA [impact assessment],” and that issues “were being put off to the post-decision regulatory phase.”   

The Expert Panel’s recommendation that the CNSC be replaced as responsible authority also reflects the widely held view that the CNSC is a “captured” regulator.  The Panel report states that “The term “regulatory capture” was often used when participants described their perceptions” of the CNSC. ()

The Minister of Environment and Climate Change Mandate Letter (November 12, 2015)

Identifies environmental assessment reform as one of the Minister’s “top priorities”:

Supported by the Ministers of Fisheries, Oceans and the Canadian Coast Guard, and Natural Resources, immediately review Canada’s environmental assessment processes to regain public trust and help get resources to market and introduce new, fair processes that will:

• restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while also working with provinces and territories to avoid duplication;
• ensure that decisions are based on science, facts, and evidence, and serve the public’s interest;
• provide ways for Canadians to express their views and opportunities for experts to meaningfully participate; and
• require project advocates to choose the best technologies available to reduce environmental impacts. (2)

The Expert Panel addressed in detail the first part of this priority – review of environmental assessment processes to regain public trust.  With regard to CNSC-led environmental assessments, the Expert Panel said:

…the erosion of public trust in the current assessment process has created a belief among many interests that the outcomes are illegitimate. This, in turn, has led some to believe that outcomes are pre-ordained and that there is no use in participating in the review process because views will not be taken into account. The consequence of this is a higher likelihood of protests and court challenges, longer timeframes to get to decisions and less certainty that the decision will actually be realized – in short, the absence of social license. (1)

The Expert Panel went on to explain the difference between regulatory licensing – in which the CNSC has considerable experience – and assessment: 

… regulation and assessment are two quite distinct functions that require different processes and expertise. Regulatory licensing typically focuses on determining the technical acceptability of a proposed project against the requirements set out in a governing piece of legislation, with a consequent emphasis on technical expertise and a tendency for the regulator and the regulated industry to be in regular contact and discussions. Assessment is a planning process which considers both technical and non-technical matters and engages in public review to select the best options. The scope of assessment is much broader and requires more diverse expertise, especially in consideration of the sustainability approach being proposed by the Panel. (1)

A June 2017 discussion paper outlines the changes to environmental and regulatory reviews being considered by the Government of Canada in response to the Expert Panel’s advice as well as additional inputs to government directly (3).  The Government is proposing that the new agency responsible for impact assessment would jointly conduct impact assessments of nuclear projects with the CNSC.  For non-designated projects the CSNC would continue to have sole decision-making authority, while noting that the Government would review the Regulations Designating Physical Activities.

This proposed sharing of authority between the new agency and the CNSC may be problematic from a procedural standpoint, and may impede the goal to regain public trust in environmental assessment, including of nuclear projects.

A close look at how the CNSC is conducting environmental assessments of three projects involving the permanent disposal of federally-owned radioactive waste is instructive and helps to illustrate why this agency may not be the appropriate responsible authority for environmental assessment of nuclear projects. These three projects are:

1) the so-called “Near Surface Disposal Project” a proposed mound for one million cubic metres of “low level” and long-lived radioactive waste beside the Ottawa River on the property of the Chalk River Laboratories in Chalk River, Ontario;

2) the NPD Closure Project, a controversial “in-situ decommissioning” of the prototype CANDU reactor beside the Ottawa River at Rolphton, Ontario; and 

3) the equally controversial “In Situ Decommissioning of the Whiteshell Reactor #1”, beside the Winnipeg River at Pinawa, Manitoba.

The CNSC allowed these three projects to go forward to the Environmental Assessment stage, despite the fact that all three are clearly at odds with international guidance and do not use best technologies available for responsible management of radioactive wastes. 

The terms “near surface disposal project” and “landfill” have specific meanings in guidance documents developed by the International Atomic Energy Agency (IAEA).  Although the proponent uses the term “Near Surface Disposal Project”, this project would actually involve the permanent disposal of long-lived radionuclides and relatively high activity wastes in an above-ground landfill-type facility.  According to the IAEA, such a facility is only suitable for very low level radioactive waste with “low concentrations or quantities of radioactive content,” “very limited concentrations of longer lived radionuclides,” and which does not need a “high level of containment and isolation”. (4)

Similarly, two “in-situ” reactor decommissioning (or “entombment”) projects appear to violate guidance in IAEA document Decommissioning Strategies for Facilities Using Radioactive Material, which states that “Entombment is not relevant for a facility that contains long lived isotopes because these materials are not suitable for long term surface disposal;” adding that “The disadvantages of entombment include: (a) Unsuitability for facilities with long lived radionuclides; (b) Cost of long term monitoring and institutional controls; (c) Public acceptance of creation of a near surface waste disposal site.” (5)

With regard to the proposed entombment of the Whiteshell Reactor #1, a submission to the CNSC from Dr. Leonard Simpson (Former Mayor of Pinawa and retired AECL Director of Reactor Safety Research) reflects IAEA’s warnings about public acceptance and the cost of institutional controls:

… none of the senior members of the AECL Waste Management Program who are enjoying their retirement in Pinawa were consulted in the preparation of the proposal. The general level of community consultation of the CNL activities has been abysmal in spite of the fact that this is where we live and are expected to support an entombed site under institutional control effectively for ever. (6)

Concerns about costs were also raised by Dr. Michael Stephens, another former AECL employee at Whiteshell Laboratories: 

The stated objective of the project is to ensure “the prompt reduction of Canada’s long- term nuclear legacy liabilities”. If the entombed reactor is not licensable as a near-surface disposal facility because of the long-lived nuclides or hazardous substances, then this project does not reduce the long-term liabilities – it increases them because it will be more difficult and expensive to retrieve them for disposal later. (7)

Despite these serious criticisms, the CNSC scoping decision for the WR-1 project (which was combined with the decision for the other two other nuclear waste disposal projects) required no changes to the project description. (8)

The CNSC’s scoping of the Near Surface Disposal Project (NSDF) was equally flawed

The combined scoping decision 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.

The CNSC has not ensured sufficient engagement of First Nations 

In response to concerns about the WR-1 decommissioning project raised by The Brokenhead Ojibway Nation, CNSC staff said “The Commission is the CNSC’s decision-making body that makes EA and licensing decisions for all major nuclear projects. Decisions made by the Commission are not subject to any governmental or political review, nor may they be overturned by the Government of Canada.” (9) The CNSC’s “independence” from the Government of Canada is a serious impediment to proper engagement of Aboriginal peoples in the environmental assessment process.

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.

The CNSC allowed the NSDF proponent to make a major change to the project – elimination of “intermediate” level waste – without requiring revision of the draft EIS.

The proponent, under significant pressure due to highly critical submissions from many individuals and groups, including the Quebec Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques (10), announced a major change to its plan for the NDSF in October 2018, two months after the closure of the public comment period on the draft EIS. The proposed change renders key parts of the draft EIS inaccurate, including the waste inventory, the waste acceptance criteria, and the assessment of alternative means of carrying out the project. CNSC, while acknowledging this change (11), did not require the proponent to prepare and release a revised draft EIS.  

The CNSC has delayed or refused outright 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. 

CNSC staff are proposing to remove references to CEAA from the licensing documents for the Chalk River Laboratories (CRL).  

The Regulations Designating Physical Activities under CEAA require environmental assessment of new nuclear reactors, new facilities for the long-term management or disposal of nuclear waste, or expansion of existing long-term waste facilities by 50% or more. The current CRL licence handbook (13) says “A determination of the applicability of the CEAA must be made” with regard to i) changes to the CRL site, ii) modifications of existing nuclear facilities, iii) nuclear facilities undergoing decommissioning, and iv) construction of new nuclear facilities.  CNSC staff have removed these references to CEAA from their draft CRL licence handbook for the next licence period (14).

The CNSC’s own “Environmental Assessment” reports, which the agency conducts for non-designated projects, illustrate the agency’s lack of understanding of CEAA. 

The EA report attached to the CNSC staff document prepared for the January 2018 CRL site licence hearing (14) does not even mention the physical activities that the licensee intends to carry out during a 10-year licence period.  These activities include construction of a small modular reactor, construction and operation of a nuclear waste disposal facility, and decommissioning of the NRU reactor and other CRL facilities.  CNSC’s EA report merely describes the current state of the environment at the CRL site.

Conclusion

The CNSC’s performance as responsible authority for environmental assessment of nuclear projects is problematic.  Public interest and public trust may not be well served by allowing the CNSC to continue in this role, nor by assessments conducted “jointly” by the CNSC and a new agency.  Fortunately, an excellent alternative exists, as outlined by the Expert Panel: creation of a new federal authority that would be empowered to decide whether a project would make a positive contribution to Canada’s future well-being and, on that basis, approve or deny a project application.

Questions

For questions 1, 2, 3, 4, 8 and 9 we are seeking responses from the Minister of Environment and Climate Change.  For questions 5 and 9 we are seeking responses from the Minister of Natural Resources. For questions 6 and 9 we are seeking responses from the Minister of Crown-Indigenous Relations and Northern Affairs.  For questions 7 and 9 we are seeking responses from the Minister of Fisheries, Oceans and the Canadian Coast Guard.  For questions 8 and 9 we are seeking responses from the Minister of Science.  We also request that the petition be sent to the Minister of Intergovernmental Affairs as a matter of information.

1) Given the evidence presented here of serious weaknesses in CNSC’s approach to environmental assessment, and the government’s commitment to new, fair environmental assessment processes, would the Minister please explain how she intends to regain public trust in the environmental assessment of nuclear projects?  

2) Noting the Expert Panel recommendation that an independent agency should replace the CNSC as responsible authority for environmental assessment of nuclear projects, why does the June 2017 Environmental and Regulatory Reviews: Discussion Paper propose that the twoagencies jointly conduct impact assessments?  How would this work in procedural terms?  How would project approval decisions be made?  Would the Minister be willing to reconsider this proposal in light of the evidence presented in this petition?

3) As stated in the Expert Panel report, “Assessment is a planning process which considers both technical and non-technical matters.”  What steps will the Minister take to ensure that planning aspects are addressed in environmental assessment?  How does the Minister intend to balance technical and non-technical matters (such as the sustainability approach emphasized by the Panel) in assessing potential impacts of nuclear projects?

4) The Expert Panel expressed the view that “assessment processes must move beyond the bio-physical environment to encompass all impacts likely to result from a project, both positive and negative.”   The Panel added that what is now “environmental assessment” should become “impact assessment”.  What is the Minister’s view on the need for a broader “impact assessment” approach?  Specifically, how should socio-economic considerations be addressed in the assessment of nuclear projects?

5) Your mandate letter calls upon you to work with your Cabinet colleagues to introduce new, fair environmental assessment processes, including to “provide ways for Canadians to express their views and opportunities for experts to meaningfully participate, including provisions to enhance the engagement of Indigenous groups in reviewing and monitoring major resource development projects.”  What actions have you taken, or will you take, in this regard?

6) Your mandate letter calls upon you to collaborate with your Cabinet colleagues “to ensure that environmental assessment legislation is amended to enhance the consultation, engagement, and participatory capacity of Indigenous groups in reviewing and monitoring major resource development projects.”  What actions have you taken, or will you take, in this regard?  Are specific measures needed to enhance the participation of indigenous groups in the assessment of nuclear projects?

7) Your mandate letter calls upon you to collaborate with your Cabinet colleagues to introduce new, fair processes that will, inter alia, restore robust oversight and thorough environmental assessments of areas under federal jurisdiction; ensure that decisions are based on science, facts, and evidence, and serve the public interest; and provide ways for Canadians to express their views and opportunities for experts to meaningfully participate. What actions have you taken, or will you take, in this regard?  

8) What actions have you taken, or will you take, to ensure that environmental assessment decisions are based on science, facts, and evidence?  How can science, facts and evidence be brought to bear in choosing the best technologies available for projects involving the long-term management of nuclear wastes?

9) Noting the apparent deficiencies in the CNSC-led environmental assessments of three projects involving permanent disposal of federally-owned radioactive wastes, how will you ensure that decisions taken regarding these projects serve the public interest?

References

1. Building Common Ground: A New Vision for Impact Assessment in Canada. The final report of the Expert Panel for the Review of Environmental Assessment Processes. April 2017. https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html
2. Minister of Environment and Climate Change Mandate Letter, November 12, 2015.  https://pm.gc.ca/eng/minister-environment-and-climate-change-mandate-letter
3. Environmental and Regulatory Reviews: Discussion Paper. June 2017. https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/share-your-views/proposed-approach/discussion-paper.html
4. Disposal of Radioactive Waste. Specific Safety Requirements No. SSR-5.  International Atomic Energy Agency, Vienna.  2011.  http://www-pub.iaea.org/MTCD/publications/PDF/Pub1449_web.pdf
5. Decommissioning Strategies for Facilities Using Radioactive Material. Safety Report Series #50. International Atomic Energy Agency, Vienna. 2007.  http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1281_web.pdf
6. CNL’s Proposal for WR1. Leonard Simpson. July 3, 2016.  http://www.ceaa-acee.gc.ca/050/documents/p80124/114864E.pdf
7. Comments on the “Project Description for the in Situ Decommissioning of the WR-1 Reactor at the Whiteshell Laboratories Site”. Michael Stephens. June 30, 2016.  http://www.ceaa-acee.gc.ca/050/documents/p80124/114855E.pdf
8. Decision on the Scope of Environmental Assessments for Three Proposed Projects at Existing Canadian Nuclear Laboratories’ Facilities.  CNSC.  March 8, 2017.  http://suretenucleaire.gc.ca/eng/the-commission/pdf/Record of Decision – CNL Scope of EA Factors 2017.pdf
9. Disposition Table of Public and Aboriginal Groups’ Comments on Project Description – In Situ Decommissioning of Whiteshell Reactor #1 Project.  CNSC.  March 8, 2017. http://www.ceaa-acee.gc.ca/050/documents/p80124/118863E.pdf
10. Questions et commentaires sur le projet d’une installation de gestion des déchets près de la surface sur le territoire des Laboratoires de Chalk River en Ontario proposé par les Laboratoires nucléaires canadiens. Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques.  September 15, 2017. http://www.ceaa-acee.gc.ca/050/documents/p80122/120514F.pdf
11. Near Surface Disposal Facility – Recharacterization of Waste. November 2, 2017.  http://www.ceaa.gc.ca/050/document-eng.cfm?document=120908
12. Near Surface Disposal Facility Environmental Impact Statement.  Canadian Nuclear Laboratories. March 17, 2017.  http://www.ceaa-acee.gc.ca/050/documents/p80122/118380E.pdf
13. Licence Conditions Handbook for Chalk River Laboratories(CRL Handbook).  CNSC e-Doc 4937963.  December 12, 2016.
14. A Licence Renewal.  Canadian Nuclear Laboratories.  Chalk River Laboratories.  CNSC CMD 18-H2. http://nuclearsafety.gc.ca/eng/the-commission/hearings/cmd/pdf/CMD18-H2-SubmissionfromCNSCStaffforCRLLicenceRenewalJanuary2018.pdf