Olivia Ward
Toronto Star
June 4, 1989

It’s a nuclear nightmare not even the staunchest critics of atomic power like to visualize: radioactivity spewing from a molten reactor core into the atmosphere, the soil, the water supply, the food we eat and the air we breathe.

It might never happen – and nuclear power officials say it won’t. But others who watch accidents here and around the world say that if it did, areas as large as 1,500 kilometres (932 miles) around the accident area would be contaminated, with possible billions of dollars in damages.

But under an obscure federal law called the Nuclear Liability Act, operators of nuclear plants only have to pay a total of $75 million to people suffering loss or injury.

The companies that supply the hardware for nuclear plants don’t pay a cent.

That’s unsettling to people looking south to Three Mile Island in Harrisburg, Pa., where 10 years of damage claims from North America’s worst nuclear accident resulted in $41 million in compensation for evacuation expenses alone, an additional $14 million paid out for “emotional stress” and multimillion-dollar lawsuits circulating in the courts.

Future in question

In Ontario, where 20 out of the country’s 22 reactors are found, the chance of a nuclear accident is highest. So the City of Toronto, Energy Probe and 11 concerned citizens are taking the federal government, Ontario Hydro and the New Brunswick Power Commission to court to change the law which they say exposes people living around reactors to uncompensated damages, and encourages power station operators to be apathetic about nuclear safety.

If they win, the era of cheap atomic energy might be over for Ontario ratepayers – and the future of nuclear power in question.

Hydro is appealing the Ontario Court of Appeal’s decision to let the case go to court. And officials say the idea of making the corporation more responsible by pricing insurance out of the market is ridiculous.

“Our people are members of the community,” says Hydro’s general counsel, Lawrence Leonoff. “They go to the plant. To think they or the manufacturers will be lax just because of an insurance sum is spurious.”

David Poch, a lawyer for the Energy Probe think tank group, disagrees.

“The law gives the nuclear industry a licence to lie, or cheat, or sell faulty products, even if they know they’re faulty,” he says.

“If a company like Union Carbide injures you or your property, they have to pay you for it. With this double standard, the nuclear companies can walk away.”

Poch argues that even though Canada’s nuclear accident record is good compared with some other countries, we’re not immune to a potential Three Mile Island or Chernobyl-style disaster. If one occurred, citizens would have little defence in the law.

Here’s what would happen after a nuclear accident, under the current law:

· Damage victims immediately lose the right to sue for compensation. Instead the government sets up a claims commission of three or more members.

· The commission hears cases, gets medical or other evidence, and decides whether the claims should be paid.

· Compensation orders go to Ottawa, where the cabinet decides how to dole out the $75 million fund. (If claims appeared massive, the only change in the fund total would be by act of Parliament.)

· After three years, health claims would be hard to make, because the law says they must not be filed “after three years from the earliest date upon which the person making the claim, had knowledge… of the injury.” However, victims of slow-developing cancer or genetic mutations have no way of knowing when the damage begins.

Clay Ruby, arguing the case for Energy Probe, says the process set up by the Nuclear Liability Act is wrong because it discriminates against potential nuclear accident victims, who aren’t allowed to go to court as other damaged groups are, to have their cases decided on individual merit.

“What the law is saying is that nuclear victims are different, and that’s okay. We agree that the purpose of the law is to discriminate, but we think that’s wrong.”

Hydro’s Leonoff says the law is in line with those of all nuclear power countries, which shield their atomic industries from potentially crippling payouts.

If the suppliers of nuclear hardware weren’t protected from damages, Hydro wouldn’t be able to cover their losses. And the suppliers themselves would have to opt out.

The nuclear industry has stayed out of the lawsuit. But, says the Canadian Nuclear Association’s vice-president for technology, Ian Wilson, “We’re observing with great interest.”

Wilson argues that the industry gets no free lunch from the liability act – it just pays in other ways.

“Our real premium is the containment systems and safety measures we’re required to use under licence by the Atomic Energy Control Board. The industry is subjected to regulation all the time. And a utility that’s building a nuclear plant has to have confidence in its suppliers. We aren’t foolish enough to squander that away.”

Wilson says it’s the ratepayers, not the industry, getting a free ride on nuclear power. “They have the insurance without paying the premium.”

And, he says, people who suffer damage from a nuclear accident are at an advantage under the liability act: “They don’t have to go to court to get compensation.”

The City of Toronto isn’t convinced. City officials believe that in an accident the Metro area, with its high-density 3 million population, would account for the biggest portion of claims.

And, says U of T law professor Michael Trebilcock, “The liability limits of the act are significantly less than the potential consequences of a nuclear accident.”

‘Human frailties’

In the U.S., nuclear liability has been raised to $7 billion, and each power plant operator has to carry a $63 million insurance policy. According to the Nuclear Regulatory Commission, it’s a cost-sharing arrangement that lets victims claim sums up to $7 billion in case of a serious nuclear accident.

And, say critics of Canada’s law, the large amounts of stored radioactive material that might be released by an accident in this country would cause damage well beyond $75 million.

There are no Canadian studies on nuclear accidents, and the industry maintains the Canadian Candu reactor has a very low probability of disaster.

But a 1976 Greenpeace study of Candu operating hazards points out safety failures and concludes: “These examples reveal nothing more than the simple fact that Canadians working in the field of nuclear reactor safety are prone to the same human frailties that one finds from Chernobyl to Harrisburg (Three Mile Island).

“The Candu is not immune from large and uncontained fuel melting accidents.”