CNSC Questions the OPG Assumption about Sedimentary Rock

Canadian Nuclear Safety Commission Questions the OPG Assumption about Sedimentary Rock as being Suited to OPG’s DGR for Low and Intermediate-Level Radioactive Waste, and Raises Questions about ‘misleading statements’.

Eroded Limestone at the Bruce National Park, Bruce County.

PMD 14-p1.2c CNSC Staff Presentation Joint Review Panel Hearing, 9-19 September 2014

On most occasions during the Joint Review Panel Hearing of 2013 and 2014, the Canadian Nuclear Safety Commission (CNSC) was lethargic in its critique of the OPG proposal to bury up to 400,000 cubic metres of radioactive waste in the sedimentary rock DGR on the shore of Lake Huron; but we witnessed one presentation that made us sit up and take notice of the ongoing sedimentary and granitic geology dispute between them.

In their 2014 PowerPoint, CNSC was critical of the OPG’s Independent Expert Group Report (IEG) report that claimed suitability of limestone over granite for the DGR. Although OPG had described the Kincardine limestone as ‘ideal’, CNSC came close to telling them that granite was the most suitable host rock for a DGR. Current international practices noted in the NEC OECD guidance documents, and the CNSCs own work at the Whiteshell Laboratories Underground Research Laboratory (URL) in Pinewa, Manitoba, are based on granite DGR construction.

CNSC Slide 5 says: ‘CNSC Staff Assessment Methodology is based on IAEA and CNSC guidance documents, independent CNSC research on the safety of geological disposal in sedimentary rocks and Canadian Shield rocks and experience gained from CNSC’s involvement in the Seaborn Panel.’

CNSC Slide 6 says that the OPG/IEG Report on Pathways of Harm includes, “misleading statements … and what they imply about granite in the Canadian Shield when comparing the Bruce DGR site with a hypothetical site in the Canadian shield, such as characteristic fractures in the Canadian Shield granite”; and,  “omission of short-term risk of tritium exposure”.

CNSC Slide 7 is titled, ‘Baseline Information-Characteristics of Fractures in Canadian Shield Granite (1)’ and says that the critique of granite is misleading,

• “Statements in the IEG report are misleading, for example: “All granite bodies in the Canadian Shield are known to be naturally fractured, and the details of the disposition, extent, connectivity and aperture (opening size) of these fractures are uncertain and no amount of investigation can reduce the uncertainty to zero” (IEG report page 11)

CNSC goes on to say, “Statements like those given in the example give the impression that limestone is not “naturally fractured”.

CNSC Slide 8 is titled, ‘Baseline Information – Characteristics of Fractures in Canadian Shield Granite (2)’, and refers to the federal underground research laboratory (URL)and test DGR facility built between 1980 and 2015 at Whiteshell Laboratory in Pinewa Manitoba, but doesn’t name the URL itself.  CNSC notes in praise of granitic rock,

• “However, the Lac du Bonnet Batholith in the Canadian Shield was characterized as sparsely fractured granite during previous investigations conducted by Atomic Energy of Canada Limited

• Out of context statements about rock types could lead to misconceptions about the suitability requirements for this, or other, deep geological repository projects”

CNSC slides 9-12 critique the IEG assessment of the following subject areas: loss of institutional control, tritium exposure (CNSC indicates that passive releases of tritiated water are high in the Low-Level Storage Buildings, but that inhalation of tritium gas through air is only a low dose concern), worker health and safety including short term high risks in underground mining.

CNSC slide 13 criticizes the IEG reports as ‘relatively high level’ for Relative Risk Assessment, but after all this concludes, “Concerns associated with key observations do not affect the current safety case for the DGR Project”.

On Slide 14 CNSC Relative Risk Perception, indicates among other points, “Risk perception study provides a limited view of public and Aboriginal comments”.

On Slide 15 Relative Risk Perception,

• “CNSC is committed to adopting best international practices in terms of social acceptability and siting deep geologic repositories

• CNSC and OPG activities prior to submission of the EIS and license application are aligned with Nuclear Energy Agency guidance: openness, accountability, independence, and competence”

On Slide 16 Relative Risk Perception, CNSC indicates they cannot further comment on the issue of Social acceptability as it is not a criterion that appears in the NSCA, sidestepping the issue of Social, Cultural and Economic Sustainability required by the CEAA, JRP TOR, and EIS Guidelines.

Conclusion

Remarkably, after such a scathing critique of the work of OPG and the IEG on the suitability of limestone over granite, the CNSC final remarks conclude that there is evidence in favour of limestone for the DGR 1, and that no new information was presented in the IEG report that would change their conclusions as presented in EIS-13-P1.3.

What a preposterous reversal! This will not be the last time that the regulatory authorities dispute what, if any rock, is suitable for the DGR 1 in Kincardine.

To view a PDF of this Issue Report, click here.   

A history of biased public opinion research: OPG’s exaggerated claims of support

Ontario Power Generation’s incredulous claim that a majority of people in Ontario support the concept of disposing of nuclear waste on the shore of Lake Huron is yet another example of highly distorted public opinion polling.

As part of the legal requirement to find a willing host community for the permanent storage of nuclear waste, Ontario Power Generation entered into an agreement with the town of Kincardine to pay $35 million to Kincardine and adjacent municipalities for public support of the project. One of the ways Kincardine was expected to demonstrate public support, was through a public opinion survey.

To earn this support, a telephone survey of permanent residents was conducted in in order to meet the OPG deadline.

“There was a three-way bias in the methodology and reporting of this survey which I believe would cause any professional pollster to reject the findings outright” said local property owner Robin Palin, a former journalist with more than 30 years experience in communications and public opinion research. “The sample of respondents was highly skewed to include people employed in the power sector and the preamble to the question led to a favourable response by omitting important known facts and in reporting the results, council claimed 73 percent public support for the proposed project, which it clearly did not have.”

Local media concurred. Phil McNichol, a reporter for the nearby Owen Sound Sun Times wrote “had anyone asked me how I thought Kincardine residents would respond (to the project) . . . I would have said ‘it’s a slam dunk.”

“By that I mean I would have regarded it as a foregone conclusion that the vast majority of people in the community would say a resounding yes’ to the $800 million Deep Geologic Repository (DGR) proposal” McNicol wrote, considering that 3,500 people work at the nearby nuclear plant.  Kincardine, home to the world’s largest nuclear power facility, is a community of 12,000 people.

In his news report, McNicol then went on to ask why council felt it so necessary to distort the results of the survey and why did they feel it necessary to influence the outcome with a heavily weighted preamble?

Highly biased preamble

Before being asked the question, respondents were read the following statement: “Council’s decision (to support the project) was based on the following key points: it provides the highest level of safety of any option; there will be a rigorous environmental assessment and Canadian Nuclear Safety Regulatory process that includes opportunity for public input before construction is approved; the deep geologic repository will permanently isolate the low level and intermediate level waste stream, much of which is already stored on site; it provides significant economic benefit to the residents of the municipality; and no high level waste or used nuclear fuel would be allowed in the facility.

In summary, council believes it is important to solicit the views of residents.”

Two highly salient facts were not mentioned in the preamble. Every attempt at burying nuclear waste has failed to contain the highly toxic radioactive waste. Secondly, council was in possession of a study commissioned by the municipality into the economic impact of the DGR on the community. The study, conducted by the Ivey School of Business showed the exact opposite of council’s claim that the DGR would provide significant economic benefit to the residents of the community. The Ivey Report stated the DGR would result in a loss of almost $700 millions to Kincardine’s land base and enterprise value –a loss that would be shared among property owners in the municipality.

Following this highly biased and untrue preamble, the respondents were asked the following question: “Do you support the establishment of a facility for the long-term management of low and intermediate level waste at the Western Waste Management Facility?

Even the question itself is dishonest. It clearly states “long term management”. In fact the DGR will have no long-term management. It is planned as a dump containing radioactive waste.  While its contents will remain highly radioactive for 100,000 years, OPG plans to stop monitoring its contents after 30 years. In testimony, the former head scientist of OPG’s nuclear program likened that to a ticking time-bomb.

Considering the sample skewed by the predominance of OPG employees and the half-truth in the preamble, it is not surprising the results showed support for the project. What surprised McNicol is how weak the actual support was.

Kincardine council in reporting on the survey claimed 73 percent favourable public support for the project. Actually, 40 percent of respondents did not support the project.

OPG said that of 6,778 respondents to the survey, 4,054 said yes, 1,477 said no, 874 were neutral and 373 did not know what to think or did not answer.

In fact, just 60 percent who were asked the question said yes. Some 40 percent failed to support the project: including 22% who said ‘No’ 13% who were neutral and 5% who didn’t know or refused to respond.

For the above reason and for many others reasons, SOS Great Lakes rejects outright, the entire public consultation process.

“The government has a requirement for a willing host community for the storage or disposal of the nuclear waste, but we reject outright OPG’s definition of a community,” SOSGL President Jill Taylor explains.

“Kincardine is not some isolated, land-locked community, simple geography expands the definition of local community. The site of this proposed nuclear waste dump is on the shoreline of a one of the largest lakes in the world, straddling the border of two nations – the lake is the centerpiece of a fresh water basin that serves 40 million people in two countries. Surely all of those people whose supply of water could be contaminated by this project, not just in the short term but for the next 100,000 years, also deserve to be consulted.”

We believe the government of Canada should recognize that fact and should ensure all related communities are made aware of the potentially deadly impacts of OPG’s plan.

To read a PDF of this Issue Report, click here. 

Is OPG's Claim of Broad Support for the Nuclear Waste Burial Plan at Kincardine Justified?

Was there a thorough and honest effort on the part of the Regulated Party and the Regulators in carrying out their respective responsibilities relating to the issue of Community Acceptance? Or, were we deceived?

Early 2000s

1) OPG/NWMO’s Misleading the Public re Preferred DGR Locations

• When the idea of low and intermediate level waste in a Kincardine DGR was first floated, the Canadian Nuclear Waste Industry and its Regulators were telling the public that the high-level nuclear waste (used fuel) was going to go in granite in Northern Canada.

• Great Lakes Basin residents and politicians were thereby assured that they need not worry about the high-level stuff near the Great Lakes.

• While this public mindset in Bruce and Huron Counties near Lake Huron was in place, OPG bought the support of not only the Mayor of Kincardine, a former OPG employee, but the adjacent municipality Mayors with a draconian “Cash for Support” deal providing for payment of previously unheard-of $ for promised public support by these municipalities for OPG’s plan including JRP testimony by each Mayor.

• The deal was draconian because any default in support for OPG by one municipality meant forfeit of the money owed and future payments to all.

• Once the deal was in place and the Mayors were already spending the money on new road graders etc., the Owners of the Nuclear Waste and NWMO were free to start the process of reversing themselves and get on with their real plan for the high-level waste: saving money by disposing of it near the place of its creation, Lake Huron.

2) 2003 Biased and Misleading Poll Intellipulse Tendered by OPG at the Kincardine Hearing

• A close analysis of the OPG’s 2003 Intellipulse survey shows:

• it was on the topic of the Western Waste Management Facility, not the proposed DGR;

• 445 of the 751 respondents were connected to the Nuclear Energy Industry;

• no reference was made to intermediate waste or decommissioning waste;

• it contained a question with an assertive conclusion that all sites were safe.

3) January 2005 Strategic Council Poll: OPG/Mayor Sutton Breach Promise to Kincardine Council

• The preamble to the telephone questions said council had both to support the DGR; not so

• The CEO of Bruce Power was quoted in a Kincardine newspaper, shortly before the telephone poll as saying, in effect, the entire nuclear energy industry in the region would suffer if people voted no

• Kincardine Council voted to conduct a referendum of residents before signing the Cash for Support deal.

• The Mayor and OPG decided to do a telephone poll rather than a referendum in order to meet OPG timing needs.

• The telephone poll was neither confidential nor permissive of more than one opinion per household.

• It was done in the winter when all the seasonal residents were absent.

• It did not mention the words “radioactive or “nuclear.”

• The results were wrongly manipulated by excluding the “I don’t knows, neutrals and refusals” to increase the approval percentage.

4) Failure to Do the Science Before Acting on the Willing Host Offer

• At the same time, OPG and the Regulators moved quickly to jump on the Kincardine Mayor’s offer to host the dump by skipping the International Best Standard for Step 1 in any DGR proposal: an Underground Research Laboratory to scientifically test the suitability of the geology methodology, before any other step is taken.

5) More Secret Financial Benefit for Bruce County

• When the rest of the Bruce County Mayors learned of the windfalls received by Kincardine and the adjacent municipalities, they sought and received from OPG an additional financial advantage for the County in an in-camera session of Council in November 2004.

2004-2013:  The Community Consultation Advisory Group (CCAG) (14 meetings) including Dr. Binder’s Appearance September 30, 2009

6) OPG’s and the Mayors’ Secret Unlawful Strategy Meetings Which They Tried to Hide By Calling Them Community Consultations

• Under the guise of “consulting" the community, OPG formed the CCAG to meet with Mayors and CAO's, as needed, to further the effort to achieve approval at the expected JRP hearings.

• These secret meetings, which were found later by a Provincial Investigator to be unlawful meetings of Bruce County Council, were anything but community consultation.

• OPG notes taken at these unlawful meetings suggest their agendas included: 1) OPG policing the “Cash for Support” Deal, and 2) OPG preparing and polishing the Mayors’ upcoming testimony.

• The notes also show:  3) OPG/NWMO consulting the Mayors on the timing of the Industry’s announcement of the reversal of its position of where it wanted to locate the high level waste DGR. (The OPG notes on this issue suggest OPG wanted to ensure that such an announcement was timed so as to maximize the re-election of these supporting Mayors in the 2010 municipal election.)

7)  Dr. Binder’s Folly

• If this wasn’t enough, OPG also used one of the meetings, September 30, 2009, to further secure the Mayors’ support for their proposal by having Michael Binder, President of the Canadian Nuclear Safety Commission (CNSC), one of the Regulators, present to show his support.

2013-14 Joint Review Panel Hearings

 

8) OPG Announces Major Change in Plans at the Hearing

• It was only at the Hearings that OPG revealed that it had doubled the size of the proposed repository.

9) Other Dubious “Community Acceptance” Evidence

• OPG tendered evidence of the support of local charities and not-for-profits. Neither the OPG evidence nor the JRP report included reference to the fact that in many cases this support was also bought with donations.

• Obviously, such donations were likely useful and laudable but one wonders if the supporting opinions, for example, from a local shelter, would have been forthcoming without the money.

10) Cover up of the Ivey Business School Stigma Report

• A citizen tendered oral evidence at the Hearings about the Ivey Business School Study and Report including its $700,000,000 negative forecast referred to above in the Apparent Partiality Section at page 6.

• The citizen was not cross-examined on this testimony by OPG or CNSC nor questioned by the JRP.

• Despite numerous references in the JRP Report to the evidence tendered by OPG about the community support it claimed, there is no reference to the Ivey Report by the JRP and therefore no apparent consideration by the JRP of what the community would have thought if it had been advised of the Report.

11) Last Word: Why Was “Community” Restricted to Kincardine when 40 Million Canadians and Americans Get Their Drinking Water From the Great Lakes?

Conclusion

OPG’s claim, and the JRP’s findings of broad community support are unsupportable by any measure!

To read a PDF of this Issue Report, click here. 

International Comity

Comity is the legal principle by which one jurisdiction will extend the courtesy of recognition to the greatest extent possible of the validity and effect of its executive, legislative, and judicial acts to another jurisdiction of the same country or another. The underlying principle is respect expected of the courts for jurisdiction, laws, or judicial decisions of other jurisdictions. The fundamental moral principle of all systems of law, “Do unto others as you would have them do unto you”, presumes that other jurisdictions will reciprocate the courtesy shown to them. Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum. “Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international convenience and to the rights of its own citizens or of other persons who are under the protection of its laws." [i]

The US follows International Comity and revises plans after Canada complains: The US Nuclear Waste Repository Program 1986

In a statement dated Jan. 16, 1986, the Honorable Joe Clark, Canada’s then-secretary-of-state for external affairs, expressed opposition to the U.S. Nuclear Waste Repository Program regarding “any development that could present a transboundary threat to the   welfare of Canadians or the integrity of the Canadian environment.” [ii]

By way of background, the US Nuclear Waste Policy Act of 1982 required the Department of Energy (DOE) to issue guidelines for the selection of sites for the construction of two deep geological repositories for high-level nuclear waste. The search for the second repository focused primarily on crystalline rock in the northeastern states, not far from the Canadian border but other sites under consideration were near the Great Lakes. According to Clark, “Other areas of potential concern to Canada, because they are in drainage basins that eventually flow into Canada, are in Minnesota and Wisconsin. The four potential areas of concern in Minnesota are in the Red River basin. Two areas in Wisconsin are at least partially in the Great Lakes basin.” [iii]

Concerns over the possibility that radioactive pollutants originating in the U.S. could be carried into Canadian waters turned the search for a second repository into a contentious issue. Through the efforts of the premier of Quebec, Robert Bourassa, and Jean Charest, then Member of Parliament from Sherbrooke, Quebec this issue was subsequently addressed through the Canadian embassy in Washington, DC.

Heeding Canadian concerns about possible transboundary effects, and in the spirit of international comity, The U.S. decided to halt the siting project for the second repository. [iv]

CANADA fails to follow International Comity and, through an Ontario Crown Corporation and Federal Tribunal refuses to even answer, let alone accede to accede to US request: The Kincardine DGR

In September 2014 Sen. Phil Pavlov of the 25th  Michigan state district addressed the Deep Geologic Repository Joint Review Panel about the dangers a nuclear waste dump would pose to the environmental and economic health of the Great Lakes Basin. He requested the panel adhere to the precedent set by Canadian opposition to a similar U.S. plan in the mid-1980s.

Citing Canadian opposition to the U. S. plan for a nuclear waste DGR in the 1980s, Pavlov asked the panel to adhere to the precedent their own government set for nuclear waste storage. He noted, “Canadian officials were troubled about possible nuclear waste 25 miles from their border or near a shared watershed. Today, they should be extremely disturbed that a Canadian company wants to bury 7 million cubic feet of radioactive waste less than one mile from the shore of Lake Huron—a decision that could devastate the largest supply of fresh water in the world. This plan cannot go forward.”

In June 2014, the Michigan Senate unanimously approved measures designed to halt construction of the Lake Huron facility while strengthening Michigan’s protection of natural resources against radioactive waste. At the time Senator Pavlov testified before the JRP, nearly 70 communities across Michigan’s Thumb region had passed official resolutions in support of this legislation. [v]

Pavlov to Canada: ‘Follow your own standard’ [vi]

CANADA again breaches International Comity, this time by misinterpreting Michigan Environmental Protection Laws: The Kincardine DGR

Michigan’s LOW-LEVEL RADIOACTIVE WASTE AUTHORITY ACT was incorrectly interpreted by OPG, the CNSC, and the JRP to mean that OPG’s proposed DGR would NOT be in violation of Michigan law and was therefore disregarded as relevant, because the repository could be sited next to the Bruce nuclear power plant as the Waste Act excludes a candidate site: “located within 10 miles of Lake Michigan, Lake Superior, Lake Huron, Lake Erie, Saint Mary’s river, Detroit River, St. Clair river, or Lake St. Clair. This subdivision shall not apply to a site that is located at or adjacent to a nuclear power generating facility.” [vii]

However, the Act also stipulates: “Low-level radioactive waste” or “waste” means radioactive material that consists of or contains class A, B, or C radioactive waste as defined by 10 C.F.R. 61.55, as in effect on January 26, 1983, but does not include waste or material that is any of the following: (vii) Contains greater than or equal to 100 nanocuries per gram of transuranic elements.” [viii]

100 nanocuries per gram in metric units is equivalent to 3700 Becquerel per gram. Review of OPG’s proposed DGR waste includes pressure tube/calandria tube waste. This is transuranic (alpha-emitting) waste. Data on transuranics in CANDU pressure tubes includes information for curium-244. This is typically present at concentrations in the range 10,000 to 70,000 Becquerel/gram, well over Michigan’s limit of 3,700 Becquerel/ gram.

Therefore, regardless of whether an LLW DGR could be located next to a nuclear power generating facility in Michigan, OPG’s nuclear waste does not meet Michigan’s requirement for a low-level repository. Michigan law prohibits burying ILW such as would be found in OPGS’s ILW. [ix]

References:

1. [i] https://en.wikipedia.org/wiki/Comity and http://www.duhaime.org/LegalDictionary/C/Comity.aspx

2. [ii] http://dfait-aeci.canadiana.ca/view/ooe.sas_19860116BESt/3?r=0&s=1

3. [iii] http://dfait-aeci.canadiana.ca/view/ooe.sas_19860116BESt/3?r=0&s=1

4. [iv] http://crystalkidsradio.com/breaking-news/historical-statement-by-canada-in-1986- regarding-potential-transboundary-effects-of-nuclear-waste-from-the- usa/#sthash.AcRtBk6e

5. [v] http://www.senatorphilpavlov.com/pavlov-to-canada-follow-your-own-standard/

6. [vi] http://www.senatorphilpavlov.com/pavlov-to-canada-follow-your-own-standard/

7. [vii] http://www.legislature.mi.gov/(S(eg5qwdjjk2t4jvuvh0bzxivq))/mileg.aspx?page=getobject&objectName=mcl-333-26210

8. [viii] http://www.legislature.mi.gov/(S(ghr3ufjfyqdvh2f0rkaxyjnq))/mileg.aspx?page=getObject&objectName=mcl-333-26202

9. [ix] http://www.legislature.mi.gov/(S(ghr3ufjfyqdvh2f0rkaxyjnq))/mileg.aspx?page=getObject&objectName=mcl-333-26202

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CANADA’S INTERNATIONAL OBLIGATIONS WHEN THERE ARE POSSIBLE TRANSBOUNDARY ENVIRONMENTAL EFFECTS: OPG, THE JRP AND ITS CREATORS (ENVIRONMENT CANADA AND CNSC) FAILED ON EVERY COUNT

Overview

The location of OPG’s proposed deep geologic repository on the shores of a trans-boundary watershed requires specific attention to environmental effects.

Canada is obliged by its own law, the Canadian Environmental Assessment Act 2012 (CEAA 2012), as well as numerous binational legal obligations and customary international practice, to adhere to these principles. 

Canadian Law, Treaties, Agreements, and other Legal Obligations

CEAA 2012

According to the Government of Canada’s website, CEAA 2012[1] is “An Act respecting the environmental assessment of certain activities and the prevention of significant adverse environmental effects.”[2]

Section 5(1) b) (iii)[3] requires consideration of environmental effects in relation to a project that could cause a change to the environment outside of Canada. Additionally, Section 18[4] of this document imposes a duty on the Minister of the Environment to offer to consult and cooperate with certain jurisdictions with respect to the environmental assessment of a project.

In the case of OPG’s deep geologic repository project the jurisdictions outside of Canada include the United States, the States bordering on the Great Lakes (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, Wisconsin,) and the 34 US Federally Recognized Tribal Governments in the Great Lakes Basin. Arrangements with the jurisdictions must be formalized and posted publically prior to the start of the joint review panel hearing for the project.

Boundary Water Treaty of 1909 [5] and the International Joint Commission [6]

The Boundary Water Treaty (BWT) provides general principles for the United States and Canada to follow in using the waters they share.  The International Joint Commission (IJC), established by the BWT, is guided by the articles of the Treaty. The IJC has two main responsibilities: regulating shared water uses and investigating transboundary issues and recommending solutions.[7]

According to the Treaty “The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise, have resolved to conclude a treaty in furtherance of these ends …“ [8]

“For the purpose of this treaty boundary waters are defined as the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.”[9]

Article IV of the Treaty states: “It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.”[10]

Article IX of the Treaty states: “The High Contracting Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred.[11]

There is no evidence in the public record that the Canadian Minister of the Environment requested the assistance of the IJC on questions involving the rights, obligations or interests of the United States relating to this project.

Great Lakes Water Quality Agreement[12]

The Environmental Protection Agency states: “The Great Lakes Water Quality Agreement is a commitment between the United States and Canada to restore and protect the waters of the Great Lakes. …. The 2012 agreement will facilitate United States and Canadian action on threats to Great Lakes water quality and includes strengthened measures to anticipate and prevent ecological harm.” [13]

Article 6(c) of the GLWQA required Canada to notify the U.S. through the Great Lakes Executive Committee of OPG’s plan for its deep geologic repository given that it was a project involving the storage and transfer of nuclear waste or radioactive materials that could lead to a pollution incident or that could have a significant cumulative impact on the waters of the Great Lakes.

The publicly available record indicates that Canadian Co-chair of the Great Lakes Executive Committee provided verbal notice to the U.S. Co-chair about the project on June 21, 2013, just three days after the full committee had met for its biannual meeting. The deadline to apply to participate in the JRP hearing was July 5, 2013. This notification did not meet the standards of timely notification (6 months) as customarily required through international agreements. The “behind the scenes” notification also prevented the committee as a whole from discussing the project while in full session, which violates the spirt of cooperation among the parties.

The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) [14]

The Espoo (EIA) Convention sets out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning and “to enhance international cooperation in assessing environmental impact in particular in a transboundary context,” [15]. It also lays down the general obligation of States to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries. [16]  Examples of potentially significant projects identified by other nations include: nuclear power plants in Finland , pipelines ,hydropower stations and expansion of spent nuclear fuel repository in Finland[17]

Article 3 of the Convention states that notification “For a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact, the Party of origin shall, for the purposes of ensuring adequate and effective consultations under Article 5, notify any Party which it considers may be an affected Party as early as possible and no later than when informing its own public about that proposed activity.”[18]

Activities listed in Appendix I include: “Installations solely designed for the production or enrichment of nuclear fuels, for the reprocessing of irradiated nuclear fuels or for the storage, disposal and processing of radioactive waste.”[19]

Article V of the Convention outlines requirements for consultation: “The Party of origin shall, after completion of the environmental impact assessment documentation, without undue delay enter into consultations with the affected Party concerning, inter alia, the potential transboundary impact of the proposed activity and measures to reduce or eliminate its impact. Consultations may relate to:

(a) Possible alternatives to the proposed activity, including the no-action alternative and possible measures to mitigate significant adverse transboundary impact and to monitor the effects of such measures at the expense of the Party of origin»

(b) Other forms of possible mutual assistance in reducing any significant adverse transboundary impact of the proposed activity; and

(c) Any other appropriate matters relating to the proposed activity.

The Parties shall agree, at the commencement of such consultations, on a reasonable time-frame for the duration of the consultation period. Any such consultations may be conducted through an appropriate joint body, where one exists.”[20]

As early as 2005, OPG was aware of the requirements of the Espoo Convention as found in a report from OPG to the Canadian Nuclear Safety Commission. This report noted:[21]

          1.) OPG recognizes the requirements of the International Convention on   Environmental Impact Assessment in a Transboundary Context (Espoo, Finland, 25 February 1991) to: take all appropriate and effective measures to prevent. reduce, and control significant adverse transboundary environmental impacts of proposed activities; and

      2.)Based on the information presented in the project description OPG does not believe that environmental effects of the DGR will be experienced outside of the primary focus area. OPG is therefore not planning to actively inform or seek to engage stakeholders in the United States in consultation on the proposed DGR.

In December 2006, Linda J.  Keen, President of the CNSC, submitted a report to the Minister of the Environment with the Commission’s recommendation that the environmental assessment for this project be referred to a review panel. This was in part based on the following concerns:[22]

·       the proximity of the facility to Lake Huron;

·       this type of project has never been done before;

·       the long-lived radioisotopes pose a risk for many generations;

·       the suitability of sedimentary rock for the DGR;

·       the unpredictability of subsurface water movement;

·       the possibility of a leak; and

·       the added stress on the Great Lakes.

According to Ms. Keen, “The Commission is of the view that a recommendation to the Minister of the Environment for a referral to a review panel appears to be appropriate under the circumstances, given the wastes to be managed and the uniqueness, first of kind nature and importance of the project.

Based on information presented, the Commission is of the opinion that the issues surrounding the uncertainties associated with the project and the concerns identified to date would be better addressed in a review panel. The Commission concludes that a review panel EA of the project is warranted.”[23]

On June 29, 2007 the Honourable John Baird, Minister of the Environment announced that the environmental assessment for OPG’s DGR was referred to a review panel.

Given the concerns identified in the CNSC report and the referral to a review panel, the Espoo Convention requirements apply.

Other International and Binational Agreements Relevant to this Project that were ignored by OPG.

·      Agreement Between the Government of Canada and the Government of the United States of America on Air Quality [24]

·      Convention on the Law of the Non-navigational Uses of International Watercourses 1997 [25]

·      The Convention on Long-range Transboundary Air Pollution [26]

·      Canada-United States Joint Inland Pollution Contingency Plan [27]

·      Canada –U.S Joint Marine Pollution Contingency Plan[28]

·      Montreal Protocol on Substances that Deplete the Ozone Layer [29]

·      North American Agreement on Environmental Cooperation (NAAEC) [30]

·      Migratory Bird Treaty Act [31]

·      Vienna Convention for the Protection of the Ozone Layer [32]

·      Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal [33]

·      Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Wastes, 1986 [34]

·      Stockholm Convention on Persistent Organic Pollutants [35]

·      Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management [36]

·      Rio Declaration on Environment and Development[37]

·      Stockholm Declaration

·      Ramsar Convention [38]

·      North American Waterfowl Management Plan

SUMMARY

By missing or bypassing virtually every requirement relating to possible transboundary environmental effects, OPG, the JRP, including its creators (ENVIRONMENT CANADA AND CNSC), who wrote its Terms of Reference (TOR), showed a troubling ignorance of and/or disregard of CANADA’s International Obligations particularly to the US and the US Border States.

 References

• [1] http://laws-lois.justice.gc.ca/eng/acts/c-15.21/index.html

• [2] http://laws-lois.justice.gc.ca/eng/acts/C-15.21/page-1.html#h-1

• [3] http://laws-lois.justice.gc.ca/PDF/C-15.21.pdf

• [4] http://laws-lois.justice.gc.ca/eng/acts/c-15.21/FullText.html

• [5] http://www.ijc.org/en_/BWT

• [6] http://www.ijc.org/en_/Role_of_the_Commission

• [7] http://www.ijc.org/en_/Role_of_the_Commission

• [8] http://www.ijc.org/en_/BWT

• [9] http://www.ijc.org/en_/BWT

• [10] http://www.ijc.org/en_/BWT

• [11] http://www.ijc.org/en_/BWT

• [12] https://binational.net//wp-content/uploads/2014/05/1094_Canada-USA-GLWQA-_e.pdf

• [13] https://www.epa.gov/glwqa/what-glwqa

• [14] http://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf

• [15] http://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf

• [16] http://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf

• [17] http://www.unece.org/env/eia/pubs/factsheets.html

• [18] http://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf

• [19] http://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf

• [20] http://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf

• [21] Appendix F EIS, pg. 153

• [22] http://www.ceaa-acee.gc.ca/050/documents/40439/40439E.pdf

• [23] http://www.ceaa-acee.gc.ca/050/documents/40439/40439E.pdf

• [24] http://www.ijc.org/files/tinymce/uploaded/documents/Agreement%20Between%20the%20Government%20of%20Canada%20and%20the%20Government%20of%20the%20United%20States%20of%20America%20on%20Air%20Quality.pdf

• [25] http://legal.un.org/avl/pdf/ha/clnuiw/clnuiw_e.pdf

• [26] http://www.unece.org/fileadmin/DAM/env/lrtap/full%20text/1979.CLRTAP.e.pdf

• [27] https://www.epa.gov/sites/production/files/2014-08/documents/us_can_jcp_eng.pdf

• [28] http://www.ccg-gcc.gc.ca/folios/00025/docs/canadaus_pub-eng.pdf

• [29] http://ozone.unep.org/en/handbook-montreal-protocol-substances-deplete-ozone-layer/5

• [30] http://www.cec.org/sites/default/files/naaec.pdf

• [31] https://www.fws.gov/laws/lawsdigest/migtrea.html

• [32] http://legal.un.org/avl/pdf/ha/vcpol/vcpol_e.pdf

• [33] http://www.basel.int/portals/4/basel%20convention/docs/text/baselconventiontext-e.pdf

• [34] https://www.epa.gov/sites/production/files/2015-12/documents/canada86and92.pdf

• [35] http://www.pops.int/documents/convtext/convtext_en.pdf

• [36] https://www.iaea.org/sites/default/files/infcirc546.pdf

• [37] http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

• [38] http://www.ramsar.org

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ACCIDENTS, MALFUNCTIONS, MALEVOLENT ACTS, AND RELATED CONTINGENCY PLANS: THIRTY EXAMPLES OF FAILURE TO PROPERLY CONSIDER

Governing Documents

The Canadian Environmental Assessment Act (CEAA) 19(1), the Joint Review Panel Terms of Reference (JRP TOR) (Part IV (a) and (b)) and Section 12 of the Environmental Impact Statement Guidelines (EIS) require the identification and description of the probability of possible accidents, malfunctions, malevolent acts, and related contingency plans associated with the DGR 1 project, and the potential adverse environmental effects of these events.

Section 12 of the EIS Guidelines require:

Early in the conduct of the environmental assessment, the accidents and malfunction scenarios to be considered in the environmental assessment will be subject to review and acceptance by the joint review panel or its technical support staff. Expected scenarios include, but are not limited to, container collapse/failure, and various degrees of barrier loss including total loss of barrier.

The proponent must describe:

• Specific malfunction and accident events that have a reasonable probability of occurring during the life of the project, including an explanation of how these events were identified for the purpose of this environmental assessment;

• Source, quantity, mechanism, rate, form and characteristics of contaminants and other materials (physical, chemical and radiological) likely to be released to the surrounding environment during the postulated malfunctions and accidents and the effect this will have on the environment and health and safety of the nuclear energy worker and the general public; and

• Any contingency, clean-up or restoration work in the surrounding environment that would be required during, immediately following, or in the longer term following the postulated malfunction and accident scenarios during, immediately following, or in the longer term following the postulated malfunction and accident scenarios.

Identification, Screening and Evaluation of Events

The JRP failed to ensure compliance with the Governing Documents by failing to require OPG to:

1.     Identify, describe, and evaluate a sufficient quantity or quality of possible initiating events across the broad range of activities on and off the site during the site preparation, construction, operation, and decommissioning phases;

2.     Consider the broad range of accidents and malfunctions that were possible during the post-closure period;

3.     Consider radiological and non-radiological accidents and malfunctions separately (the JRP also did not hear evidence about cumulative effect);

4.     Provide sufficient rationale for the screening process of possible malfunctions or accidents. Initiating events were eliminated that were indeed ‘possible’; and, events that were not likely to occur on an annual basis were held to be, ‘not credible’;

5.     Conclude that the following were ‘unlikely or non-credible’ events: ILRW package drop/hit, indoor fire, inadequate package sealing, major vehicle accident, container failure, cage fall, criticality, rock fall/rock burst, severe rainfall, severe snowfall, severe snow/ice, tornado, flooding above ground or below ground, external fire, aircraft crash, or meteor impact (all from page 8-2 EIS). The testimony had identified many high or low level potential accidents and malfunctions that would likely result in radiological and non-radiological contamination, due to single or multiple failures, with cumulative effects;

6.     Identify and evaluate failures in systems and safety culture as possible cause of malfunctions or accidents over the life of the project;

7.     Consider only the conventional non-radiological bounding events of spill and explosion (JRP Report 10.2.2 p 228). The evaluation of explosion did not include explosion during the operational or decommissioning phases, although testimony was given indicating the potential for explosion during operations and decommissioning;

8.     Consider precedent-setting international failures of other DGRs in the assessment of unplanned events;

9.     Consider possible initiating events across a broad range of activities that could occur during the phase of expansion of the DGR to accommodate decommissioning waste, or the potential cumulative effect of accidents and malfunctions of one project on the other;

10.  Present evidence that unplanned events already proven to be credible events at the Bruce Nuclear Station could cause possible cumulative effects at the DGR;

11.  Compare the environmental effects resulting from malevolent acts with the effects identified for accidents and malfunctions involving the DGR;

12.  Provide sufficient quantitative or qualitative information on all radioactive, and all hazardous substances (including combinations of low level radiation and high level radiation) that could be released to the environment, or other environmental effects that could be caused by accidents, malfunctions, or malevolent acts; and

13.  Identify “magnitude, geographic extent, timing and duration, frequency and degree of irreversibility (are) combined to identify environmental consequence” (EIS Section 7.8.3) as a result of accidents, and malfunctions. 

Safeguards, Accident Management, and Contingency Protocols

The Governing Documents also required a description of the safeguards that have been established by the proponent to protect against such occurrences and the contingency procedures and protocols to mitigate damage should they occur. Section 12 of the Guidelines also referred to accident management, typically relying heavily on the evacuation of personnel and of the population, as required. OPG was required to demonstrate that the requirements for adequate infrastructure external to the DGR site are met. The need for any necessary administrative measures was also required to be identified together with the responsibilities of organizations other than the OPG.

The JRP did not have sufficient evidence to find that safeguards had been designed or established, or that contingency procedures and protocols had been designed or established, especially since so few unplanned events had been identified by the proponent as ‘probable’.

Examples include:

1.     Disregard of cumulative effects of multiple events occurring simultaneously in combination, or one after the other;

2.     The lack of adequate accommodation of total damaging effects of radionuclide content of waste; 

3.     Lack of provision for safeguards in overlapping phases of DGR development on site;

4.     The lack of understanding of the overall geomorphology, direct and indirect hazards of process, that prevent the development of safeguards during the EIS process;

5.     Limiting the substance of mitigation and safeguards to existing and enhanced practices, without emergency planning being laid out in relation to a full range of initiating events of varying degrees of significance;

6.     No evidence that the responsible authorities that were identified are able to or have agreed to respond to the range or severity of emergencies on the site. Environment Canada notes that no spill response plan was submitted, nor was downstream effect mitigation or accident probability discussed. Environment Canada indicated that effluents from potential spills would have to be treated. Recommendations included a detailed spill plan and a plan to reduce potential for underground vehicular traffic accidents. Malfunction and Accident implementation measures are to be overseen by the Canadian Nuclear Safety Commission (CNSC). (JRP Report p. 233);

7.     Evacuation through one or two shafts in case of emergency underground is not suitably explained for short or long term duration events, including all events radioactive and non-radioactive. This insufficiency is acute when one considers the potential addition of area to the DGR 1 for the purposes of expansion of decommissioning waste, and the expansion to suit additional of 200,000 cubic metres of added waste and area to the DGR 1 as designed. (The EIS and hearing evidence indicated that no further evacuation shafts are to be planned.);

8.     Accident, malfunction, and malevolent act scenarios were not developed for underground evacuation;

9.     Population evacuations were not investigated for unplanned event scenarios for radioactive or non-radioactive release situations, or for other events involving fire, explosion, contamination of air, land and or water;

10.  Administrative and organizational scenarios were not prepared for EMS over each identified scenario or other scenarios, including transfer of responsibility (change) over time from one party or jurisdiction to another, temporal response chain or other required action through OPG, private contractor, municipal, county, provincial, federal or other response mechanisms for events including fire, explosion, decontamination, or emergency medical procedures;

11.  No evidence that agreements have been reached between agents who would be responsible for emergency actions and mobilization on site, including overall responsibility or fiscal responsibility for emergency management on or off site;

12.  OPG provided no description of the combined Emergency Management systems that would be required across the DGR, Western Waste Management Facility, Hydro Corridor and Bruce Nuclear Site, or how emergencies affecting water would be handled;

13.  No emergency plans were included in the EIS. There was no demonstration that agreements have been reached, or processes defined or established for immediate or follow-on mitigation, repair, clean up or restoration due to potential malfunctions, accidents, malevolent acts, or unplanned events affecting one or multiple valued ecosystem components;

14.  Contingency planning was wrongly limited to unplanned incidents, accidents and malevolent acts in the “pre-closure period”, and through recommendations to be addressed by OPG and/or the federal regulator in the future;

15.  Section 4.4 of the Malfunctions, Accidents and Malevolent Acts Technical Support Document (OPG 2011) identifies select issues and measures that one would reasonably expect to be addressed and included in contingency plans, but does not include the plan or plans;

16.  The JRP made at least four information requests of the OPG concerning contingency planning. OPG’s answers were not responsive; and

17.  Further evidence of OPG’s deferral of contingency planning into the future is found in the OPG response to IR EIS-06-235, in which OPG states: Adaptive management will be incorporated into the EA follow-up plan for the decommissioning phase by including contingency procedures and plans to comply with/conform to regulatory standards or guidelines that are applicable at the time of decommissioning.

Summary

The JRP failed to require that OPG to fulfil the requirements of the Governing Documents, as evidenced by the 30 examples cited above. Instead, the JRP wrongly delegated most of the decisions to either the CNSC or OPG itself.

·       Recommendation 10.1: OPG shall implement the mitigation measures and contingency plans identified in Table 5.3.3-1 and Section 5.5 of the Malfunctions, Accidents and Malevolent Acts Technical Support Document to the satisfaction of the CNSC, during site preparation, construction, and operations.

·       Recommendation 10.2: In order to avoid significant adverse environmental effects, including effects to fish or fish habitat, due to malfunctions, accidents or malevolent acts, OPG shall develop and implement a detailed spill response plan for all phases of the project. The spill plan must be acceptable to the CNSC and include an assessment of containment methods, locations and strategies to demonstrate that spill mitigation will be deployed in time to prevent downstream effects.

·       Recommendation 10.3: OPG shall develop and implement a plan, prior to site preparation, to reduce the likelihood of underground vehicular traffic accidents and rockfall accidents to the satisfaction of the CNSC;

·       Recommendation 10.4: OPG shall implement the mitigation measures and contingency plans identified in Section 4.4 of the Malfunctions, Accidents and Malevolent Acts Technical Support Document, to the satisfaction of the CNSC; and,

·       Recommendation 10.7:  To the satisfaction of the CNSC, OPG shall seek and apply operational experience gained from malfunctions and accidents at international repositories, including but not limited to the WIPP, in its contingency, mitigation and other planning processes, during all phases of the project.

Malevolent Acts

Section 12 of the Guidelines also required OPG to address potential environmental effects that could result from intentional malevolent acts. While intentional malevolent acts are not accidents, OPG was required to compare the environmental effects resulting from malevolent acts with the effects identified for accidents and malfunctions involving the DGR. OPG did not evaluate this subject in a thorough manner and the JRP did not require OPG to correct the error. 

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