The partiality of the Joint Review Panel and those who created it: It was hard to tell the difference between the regulators and the regulated

The Joint Review Panel (JRP) for the Kincardine DGR was a quasi-judicial tribunal. In Canada, all such tribunals are required by law to be fair, transparent and free from any hint or apprehension of partiality.

The appointment of this JRP and its Terms of Reference (TOR) were the joint responsibility of the Harper Government Minister of Environment and the Canadian Nuclear Safety Commission (CNSC). The CEO of CNSC at the time, Michael Binder, was appointed to replace predecessor Linda Keen who was fired after taking a strong stand against part of the Industry on the basis of safety.

The cross-pollination and mobility of personnel between the Canadian Nuclear Industry and its Regulators cried out for scrupulous care and extraordinary effort by the JRP and its creators to ensure public confidence in the process. This was especially so in light of the previous service of panel members to the industry, including the Chair’s prior engagement by a consulting firm retained by Ontario Power Generation (OPG). On numerous occasions during the JRP hearing, the impartiality of the panel and the appointed regulator, the CNSC, was put to the test.

The following three examples suggest they failed miserably.

(1) To ensure success at the JRP, OPG bought the support of the area’s Mayors through a “Cash for Support” deal, which provided previously unheard amounts of cash to these small municipalities. OPG enforced this deal and groomed the Mayors for their JRP testimony in a series of unlawfully secret meetings of Bruce County Council. At one such meeting in 2009, Binder was present and expressed his bias in favour of OPG. His remarks, as recorded by an OPG note-taker, were said to be ‘the next time I’ll see you will be at the ribbon-cutting ceremony’.

This 2009 Binder remark was raised at the JRP Hearing in 2013, as a perfectly appropriate legal issue of possible apprehension of bias in the mind of an independent reasonable third party (the appropriate legal test). The Panel Chair’s reaction was anything but judicially impartial. Rather, it was arrogantly and angrily dismissive.

A truly impartial Panel would, at a minimum, have demanded an explanation from CNSC.

(2) Two of the most critical regulatory requirements for a nuclear waste Deep Geological Repository (DGR) are: (a) evidence-based science establishing the suitability of the geology and proposed methodology by way of a pre-test in an Underground Research Laboratory (URL), and (b) a willing host. Neither requirement is easy, and the “willing host” can be elusive, but without the evidence-based science, the willingness of the host should be irrelevant.

Here, astonishingly, the Harper Environment Minister, Binder, and the JRP allowed OPG to proceed without the International Best Practice URL, and therefore without the requisite evidence-based science.

Why? Cheaper? Faster? Did not want to lose the Kincardine offer? The reasons do not matter. An impartial and responsible JRP would have sent the matter back to the Federal Government for new terms of reference requiring the URL.

(3) Another example of contrivance between the OPG, the Mayors of the surrounding municipalities and others was demonstrated at the Hearings, when a citizen tendered oral evidence of the fact that Kincardine had commissioned a Study and Report by the Ivey School of Business (paid for by OPG) on the economic effect of the DGR being added to the existing Nuclear Industry installations in Kincardine. The Report forecasted a negative stigma effect of about $700,000,000.00 on the Kincardine economy over the next 30 years. The Report never made it to Kincardine Council, let alone to the people of Kincardine or the affected Canadian or American Public. The JRP Report includes many pages documenting OPG’s proffered evidence of ‘Community Acceptance’ of the DGR, but not a word about the Ivey Business School Report, and of course, not a word about how different the public’s view may have been had the Ivey report been made public.

A truly impartial Panel would never have replicated OPG’s and Kincardine’s withholding of the Ivey Business School’s DGR stigma report.

Is Sustainability Really "Not Readily Applicable" to the DGR Project?

Waves crashing on the shore of Lake Michigan

The consideration of sustainability is a requirement of the Canadian Environmental Assessment Act (CEAA) in the development of projects that have the potential to affect human health, social and cultural well-being our economy, and the environment. How then could OPG state, and then the Joint Review Panel conclude, on page 41 of its final report, that the application of sustainability principles was ’not readily applicable to this project’?  

In January 2009 the Canadian Government approved the Environmental Impact Statement (EIS) Guidelines and Terms of Reference (TOR) for the JRP for DGR 1 in Kincardine. The EIS Guidelines identified the information OPG had to provide to prepare the EIS including the detailed analysis of the potential environmental effects of the proposed project. The JRP Agreement established the terms of reference for the JRP, and how it would function in its consideration of the license application to prepare a site and construct a facility. Both documents were signed by the Conservative Minister of the Environment Jim Prentice, and the President of the Canadian Nuclear Safety Commission Michael Binder. 

The CEAA, EIS Guidelines, and JRP TOR each specifically state the requirement that the proponent and the panel consider sustainable principles in designing and evaluating the DGR.

The CEAA says (Section 4), “The purposes of this Act are (…) to encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and healthy economy.” Elsewhere, the CEAA defines sustainable development as “[d]evelopment that meets the needs of the present, without compromising the ability of future generations to meet their own needs”.

The TOR (Part IV) describes the scope of the Environmental Assessment to be produced by OPG and this must include a consideration of the “[c]apacity of renewable resources that are likely to be significantly affected by the Project to meet the needs of the present and those of the future”

The EIS Guidelines (Section 6) define sustainable development as “[…]development [which] seeks to meet the needs of present generations without compromising the ability of future generations to meet their own needs”. And, Section 15 “Capacity of Renewable Resources”, required that the EIS describe the effects of the project on the capacity of renewable resources to be significantly impacted by the DGR, i.e., how resource use, productivity, or carrying capacity might be affected.

The OPG EIS demonstrated none of the requirements that had been mandated by the CEAA and TOR to achieve sustainable development. They dismissed the requirement of their proposal to advance a healthy environment and healthy economy; did not advocate for the right of future generations to meet their own needs for health, clean water, and clean air across a broad geographic region and for hundreds of generations; and did not evaluate the capacity of renewable resources to retain their value or ability to be sustained despite the project. It did not consider that damage to non-renewable resources that could result in a totally unsustainable environment.

OPG presented insufficient, incomplete, and misleading information on the capacity for the DGR to be a sustainable industry, skipped key steps in the evaluation process, and ignored likely and potential negative effects on the broad range of interrelated ecosystems (including the human population and the whole of the Lake) that could render those systems unsustainable at any time in the term of use. It did not evaluate cumulative effects of potential damage. It did not investigate a time frame of resilience. It did not address the ways in which alternative sites and means might reduce the impact of the radioactive waste disposal to create a model of greater sustainability, with less risk of damage to its context.

Examples of Flawed Decisions
OPG, and then the JRP, considered that significant environmental effects of the DGR and its contents on water, air and land were not of consequence if these effects might be reversed over time, even when that time frame is in the millions of years.

The Chair of the JRP, Stella Swanson, further compromised the requirements of the CEAA by stating explicitly in the Socio-Economic Special Session that socio-economic concerns that could affect the sustainability of the region in the short and long term would not be sufficient to dismiss the DGR Project.

The JRP went further when it concluded that a DGR on the Bruce site was more sustainable than a DGR at an undeveloped off-site location because transportation off site did not meet sustainability criteria. It made this judgement with no description of alternative means or actual alternative sites, and no account of the relative sustainability of alternatives.  

In its final submission to the JRP, the Canadian Environmental Law Association notes that the idea of the protection of future generations in the JRP Report is flawed: “the operational phase of the DGR may be measured in mere decades, but it will leave an incredibly toxic legacy (and an unknown socio-economic burden) to countless future generations (over a number of millennia) who are not here to speak about their willingness (or unwillingness) to accept long-term costs, risks or impacts”.

Clearly abdicating its obligations to rule on the protection of the health and environment of future generations, the JRP Report addressed the issue of long term future effects as not assessable, and therefore, not a factor for evaluation, because “OPG assumed that such effects would have no impact beyond the life of the project and that the environment would return to existing conditions”. (JRP p. 41) The JRP could have corrected OPG at any time by requiring it to adhere to the governing documents.

The JRP conclusion does not meet the test of the CEAA, the TOR or EIS Guidelines. One can only hope that the new Liberal Government has the courage to challenge the decision of the JRP based on its commitment to sustainability and the right of future generations to meet their own needs.

Click here for a PDF version of this Issue Report.

It’s time to speak up. Let your voice be heard.

SOS Great Lakes

It’s time to speak up. Let your voice be heard.
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New Website: SOSGREATLAKES.ORG 

We changed our name.

Formerly known as SOS Save Our Saugeen Shores, we are now known as SOS Great Lakes. Our original name served us well when we were fighting the idea of a high level nuclear waste dump in Saugeen Shores. The issue now is the threat to drinking water for 40 million people posed by OPG’s planned nuclear waste dump near Kincardine, on the shore of Lake Huron. We changed our name to bring this threat to the attention of the millions of people who rely on the Great Lakes for fresh water through a coordinated campaign. 

We launched a new website. 

Our plans are on our new website, sosgreatlakes.org. You will be receiving updates and information going forward. We have intensified our efforts with the governments of Ontario, Canada, the United States, Great Lakes states, and all municipalities in the Great Lakes basin on both sides of the border.  Please make sure you receive this information by putting our new name and email address in your address book:

SOS Great Lakes - info@sosgreatlakes.org

Let your voice be heard.

By taking a few simple steps, you can help to ensure our success.  Most important, we would like you to share our news.  To be successful we have to alert the millions of people who rely on the Great Lakes, that their drinking water is at risk.  That’s a tall order, but if you tell your friends, and they tell their friends and so on, we can do it. We will give you the tools to help you communicate this message.
 
Please let our voices be heard by sharing the information we give you, with your own network.
 
Your voice is more powerful than you think.

Please help us tell this important story by passing along this information to your friends and networks.  When I hit the send button on my email, I reach out to you, the 2,000 members who are committed to helping us achieve our goals.
 
When you share our information with your friends and networks, you reach out to 200,000 people who know you and trust you.  If they share our messages with their networks, some 20 million people will become aware of this issue. At that point, politicians on both sides of the border will be forced to listen to our concerns.
 
We can do this. You can do this. Please help us save the Great Lakes from nuclear waste.
 
Your lakes.  Your choice.

Sincerely,

Jill Taylor
President, SOS Great Lakes