Did the “Community” have all the facts? And, which “Communities”?
July 6, 2017. This is the second in a series of Blogs by Rod McLeod, retired lawyer, former Ontario Deputy Minister Environment (with the Liberals) and, earlier, Deputy Minister Public Safety (with the Conservatives) after a time as Chief Crown Prosecutor and, latterly, 25 years of Environmental law practice, and currently a Board member of SOS GREAT LAKES.
Background: Premier Wynne’s Government owns Ontario Power Generation Inc. (OPG). Kathleen Wynne, as head of the Government, has allowed OPG to continue to plan to build a nuclear waste dump on the shore of Lake Huron, the central of the five Great Lakes that provide drinking water to 40 million people in Canada and the U.S. This Deep Geologic Repository (DGR) would hold 400,000 cubic metres of Intermediate and Low Level Waste (I&LLW). ILW can include reactor parts and other decommissioning waste that will remain dangerously radioactive for hundreds of thousands of years. When this material leaks, as every other Deep Geologic Repository (DGR) in the world has, the rogue emissions will enter the Great Lakes, potentially causing unimaginable damage to the largest supply of fresh water in the world.
McKenna’s Dilemma: Allowing this dump on the shore of Lake Huron is a dangerous and unnecessary gamble with our drinking water and would be in stark contrast to many very important environmental protection principles and initiatives, on which the Trudeau Government was elected in 2015. At the same time, she may be reluctant to be seen to be opposing the ever-popular vote-getting ‘’green” nuclear energy industry led by OPG.
Please click here for Blog 1 where I tell you a little about SOS GREAT LAKES, and explain the significance of an April 2017 Report from the Minister’s Expert Panel (EP). The EP proposes major changes in Canadian Environmental Assessment to restore faith in Environmental Assessment (EA) with new fairer processes. It can and should help her with her upcoming decision to reject or accept the conditional first step approval for OPG’s plan granted by the Harper-appointed Joint Review Panel (JRP) at Kincardine. (Her decision is currently scheduled for fall 2017.)
In Blog 1, I stated my thesis: The Minister’s independent EP’s April 2017 Report provides her at least two ways out of this dilemma. Both require courage but, with the help of her EP, she may even be able to escape while continuing full support of nuclear energy, at least its green production cycle.
Her first way out is justified by the totality of the major errors and legal breaches described in Blogs 2 to 7.
Today, I look at how the JRP handled the impact assessment function vis-à-vis a critical assessment issue, Community Acceptance, as required by the Canadian Environmental Assessment Act (CEAA), related Federal Guidelines and the JRP’s Terms of Reference.
On an impact assessment issue such as this, where the potential for conflicting views is obvious, the starting point is to remember that the JRP was a quasi-judicial administrative tribunal with a solemn duty to treat proponent and opponent equally, transparently and without any hint of bias or partiality.
On the JRP’s finding of Community Acceptance, consider the following:
1. OPG created what they called the Community Consultation Advisory Group (CCAG) which was nothing more than a regular meeting of OPG, and the Mayors of the region. OPG entered into a written agreement in 2004 with the Mayors whereby they agreed to pay the Municipalities $35M in return for testimony at the JRP supporting the DGR. The JRP saw no negative taint in this evidence - no possible negative inference from the fact the evidence was bought.
2. OPG had regular secret meetings with the Mayors to enforce this deal and to prepare and polish their testimony. The meetings were later found by an Investigator, appointed under the Municipal Act, to be unlawful meetings of Bruce County Council. The JRP saw no problem with the illegality or the extreme “wood-shedding”.
3. At the September 30, 2009 meeting of this group, OPG invited the Dr. Michael Binder, President of the Canadian Nuclear Safety Commission (CNSC) (OPG’s primary regulator and principal architect of the JRP). He attended with his senior administrative assistant. Notes taken by OPG tell us that Dr. Binder did some cheerleading for OPG, including warning them about objections from Michigan, and, on leaving, said ‘the next time I’ll see you will be at the ribbon-cutting ceremony’. SOS GREAT LAKES’s objection, with the Kincardine JRP, based on a reasonable apprehension of bias. It was summarily and angrily dismissed.
4. In the early 2000s, OPG and the Kincardine Mayor (formerly an OPG employee) commissioned a report by the Ivey Business School on the economic effect of adding the OPG’s DGR to Kincardine’s nuclear energy infrastructure. To their surprise, the report forecasted a negative stigma effect on the Region’s economy of $700M over the next 30 years. They kept the report quiet by failing to disclose it to the public, the JRP, or even the full Kincardine Counc
After obtaining a Freedom of Information Order for production by Kincardine of the IVEY Report, a citizen brought it to the attention of the JRP. He did so in a written submission analyzing the JRP’s expert’s testimony on stigma. The citizen’s submission quoted at length from the Ivey Business School's assessment of stigma for the community. The JRP never made any reference to this startling fact.
5. OPG relied on two Polls paid for by OPG. Both involved misleading statements and questions and, on one, the results were manipulated to show more support than existed. Both were done in a company town while tax-paying seasonal residents were away. The JRP saw no problem in relying on the Polls.
6. Neither the JRP, nor CEAA, nor CNSC nor OPG consulted with the other 40 million stakeholders in the “Community” of Canadians and Americans who get their drinking water from the Great Lakes, notwithstanding mandatory statutory requirements to do so.
7. Opponents received no pre-hearing disclosure of OPG’s or CNSC’s testimony, which was not given under oath, and no questioning of OPG and CNSC witnesses was allowed, let alone cross-examination.
8. CNSC also controlled the ambience of the hearing. Selected ordinary citizens, who had sought and received standing to present at the Hearing, received early morning visits at their homes by uniformed OPP officers warning them to behave. When those citizens stood to present at the Kincardine hearings, they looked straight at the Chair of the panel, in the centre of the dais. Sitting next to the Chair, was the CNSC Administrative Assistant to Dr. Binder who had been with him at the September 30, 2009 unlawful meeting while he was doing the cheerleading for OPG.
A Hearing Panel modeled on the EP’s report would have both public and legal representatives, not just consultants and academics who regularly earn part of their living on panels such as this JRP. Such a panel would have had serious concerns about most, if not all, of what the JRP did and did not do on these Community Acceptance sub-issues. Such a panel would never have tolerated this much deception by OPG and its “chummy” regulator, CNSC. Nor should the Minister.
The Minister’s first route to avoid turning this dilemma into a disaster is to look at the totality of the major errors and legal breaches in Blogs 2 to 7. When she does she will see a picture that is wildly out of sync with her Government’s 2015 Election platforms and her recent EP report. Rejection of the Kincardine JRP Report should be an obvious decision.
Rod McLeod, Director, SOS GREAT LAKES