Norm Rubin, Mark Mattson, Krystyn Tully
11 Apr 2002

Re: FEAI #: 30619
Title: Draft Scope of the Environmental Assessment for the Port Granby Long-Term Low-Level Radioactive Waste Management Project

Dear Madam,

This submission is made with respect to the above-noted request for public comments on the Draft Scope of the Environmental Assessment for the Port Granby Long-Term Low-Level Radioactive Waste Management Project on behalf of Lake Ontario Keeper and Energy Probe.

Lake Ontario Keeper and Energy Probe are charitable organizations representing individuals in communities throughout Canada, and both are projects of Energy Probe Research Foundation. Lake Ontario Keeper works to protect Lake Ontario and the interests of the communities in its watershed through the enforcement of environmental laws. Energy Probe is a research-based consumer, environment and energy public-interest group with a long history of involvement in nuclear issues and radioactive contamination in the Port Hope and Port Granby region.

In response to the Draft Scope, Lake Ontario Keeper and Energy Probe request that the following considerations be made:

1. That the Responsible Authorities request the Minister of Environment refer the EA to a review panel in accordance with Section 25(a) and (b) of the Canadian Environmental Assessment Act;

2. That all restrictive pre-conditions be removed from the Draft Scope; and,

3. That the scope of the assessment be expanded to explore key issues of concern in the Port Granby region.

1. Request for referral to a review panel under the Canadian Environmental Assessment Act (CEAA)

The description of the Port Granby Project Environmental Assessment (EA) found in the Draft Scope raises a number of concerns regarding the ability of the process to “achieve or maintain a healthy environment” one of its primary functions as stated in CEAA Section 4(b).

Factors which restrict the EA’s effectiveness include:

A. The EA is limited to the preparation of a screening report. This process is the lowest level of due process possible under CEAA.

B. Independent review and decision-making elements are absent. This is significant because the Port Granby Project funder (NRCan), project overseer (CNSC), regulators (NRCan, DFO, CNSC), proponent (LLRWMO), and Responsible Authorities who ensure a sound process and assess environmental impacts (CNSC, NRCan, DFO) are all representatives of the same body (the Federal government).

In our extensive experience in the assessment of the impacts of nuclear undertakings including those involving nuclear wastes independent panels and the public as a whole consistently take a rather different view of these impacts than officials of CNSC, governments, and nuclear utility companies.

Indeed, our most recent experience with an independent panel review of a nuclear undertaking the so-called “Seaborn Panel” review of the federal government’s concept for deep geological disposal of high- level radioactive waste showed that such panel reviews have the potential to make rather large steps away from nuclear-establishment’s “business as usual” approach and toward the kind of wisdom that we must develop to deal properly with nuclear materials.

The nature of the material in question (i.e., radioactive waste) and the gravity of the concern shared by members of the Port Granby community regarding its past, present, and future effects create a strong argument in favour of referring the EA to a review panel under Section 25(a) and (b) of CEAA.

We would also like to note that an Ontario hazardous waste siting project such as the Port Granby Project would ordinarily require a Certificate of Approval from the Ontario Ministry of Environment and be subject to a Part V hearing pursuant to the Ontario Environmental Protection Act (EPA). In this case, however, the Federal government has claimed jurisdiction over nuclear waste, thereby exempting itself from this process.

This exemption significantly reduces applicable standards for assessing and mitigating adverse environmental impacts of the project, since even the most stringent process for environmental review pursuant to the CEAA does not meet the lowest standards of Ontario’s EA requirements.

Section 3.3 of the Draft Scope notes that the Ontario Ministry of Environment (MOE) will not apply EPA requirements to the project but does not provide the opinion or reasons for that decision. This decision contradicts the Ontario government’s earlier position, as outlined in a 1994 letter by Minister Bud Wildman to Mark Mattson, lawyer for Energy Probe. Responding to questions about the Federal government’s intent to locate high-level nuclear waste in Ontario, Minister Wildman states:

We share your concerns about the limitations of the federal environmental assessment process . . . [T]he most rigorous examination of any proposal would be required in Ontario before any decisions are made.

Minister Wildman’s application of Ontario standards to radioactive waste is not without precedent traditionally, Ontario’s EPA also encompassed radioactive substances:

Waste disposal is traditionally a provincial concern. An argument could be made that the AECB’s jurisdiction extends to approving designs for waste disposal sites and giving licences to approved designs; but that construction and operation of the sites are within provincial jurisdiction. If so, s. 33a, b, and c of the EPA would apply a public hearing must be held where a hazardous waste site is to be established or extended. Hazardous is defined in Regulation 824 under this Act to include radioactive substances. Regulation 824 gives no standards for the management of radioactive waste sites. (Estrin, David and John Swaigen. Environment on Trial, (1978). Page 306, Footnote 99.)

There is precedent, therefore, for the province to assume a role in the disposal of radioactive waste and for such a project to be subject to standards higher than those in the Draft Scope for the EA screening. While the Ontario government has not yet declared its interest in the Port Granby Project, the potential impacts of the project, the concerns arising within the community, and the precedents set by previous radioactive waste projects should compel federal Responsible Authorities to adopt a framework more likely to reflect due process and fairness.

By invoking the most stringent level of due process under CEAA, the Port Granby Project EA is more likely to incorporate quasi-independence, public accountability, and transparency.

2. The impact of pre-conditions on the proposed Environmental Assessment (EA)

One of the primary functions of the EA is to “encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment.” (Canadian Environmental Assessment Act, Section 4(b)). A number of pre-conditions built into the Draft Scope, however, severely limits the potential for the Port Granby Project Environmental Assessment to satisfy this function.

Pre-conditions included in the Draft Scope limit the ability of the EA process to fully evaluate the impacts of the project. They also restrict the likelihood that the analysis conducted can be used to design the most environmentally, economically, and socially beneficial/appropriate project possible.

These pre-conditions include:

A. The lack of a proper review of alternatives to the project, or need; and,

B. The assessment methodology.

A. Lack of a proper review of alternatives, or need

Section 5.0 of the Draft Scope states that alternatives to the Port Granby Project will not be factors in the screening and defends this omission by reminding us that efforts over the course of the last thirty (30) years to find suitable alternatives have been unsuccessful. While a review of alternatives is not essential to the assessment of the potential physical impacts of the Port Granby Project itself, such a review is critical to the decision-making process by which such a project is approved.

In effect, the Port Granby Project as outlined in the Draft Scope is treated as a fait accompli and the EA as a mere formality. To protect community, environmental, and economic interests, the Draft Scope should be expanded to include criteria for assessing whether the Port Granby Project should proceed at all.

The Draft Scope document addresses the “Historical Context and Need for the Project” in section 6.2, beginning on p. 7. That section suggests that the need for the project flows from the failure of earlier processes specifically the Low-Level Radioactive Waste Siting Task Force to find a willing host community outside of Port Granby. But that history neither establishes the need for this project, nor does it suggest that this project is acceptable.

Briefly, that history is as follows: The federal government and its federal Crown Corporation, Eldorado Nuclear Limited, proposed to site a new radioactive waste disposal facility near Port Granby, and established an Environmental Assessment Panel to review several alternative sites. In response to intense political embarrassment, the federal government canceled the EA process entirely and established the Low-Level Radioactive Waste Siting Process Task Force, to examine “less confrontational” ways to site such facilities. That Task Force provided specific process guidelines, based on relatively modern principles of voluntarism and informed consent. For example, those guidelines which were subsequently adopted by the Federal Government in the establishment of the subsequent Low-Level Radioactive Waste Siting Task Force ensured that no Town Council could accept a radioactive waste repository on behalf of its citizens without its citizens endorsing that acceptance in a referendum or similar process. After fourteen (14) Ontario communities expressed initial interest in entering the process as candidate host communities, thirteen (13) of the fourteen (14) withdrew from consideration, and one (Deep River) accepted on terms so unreasonably demanding that the Federal Government refused to conclude an agreement.

That history (a) committed Canada to modern and enlightened principles of voluntarism and informed consent and (b) established that no Ontario community was willing to voluntarily host these wastes without a level of compensation that the Federal Government was unwilling to provide. That history clearly does not establish that the citizens of Port Granby have volunteered or consented to site such a repository, but it does strongly suggest that the present contract between Port Granby and the federal government an agreement that has not been tested or endorsed by the citizens of Port Granby in a referendum or similar process cannot be considered a legitimate basis to proceed in a modern democracy like Canada.

In the absence of any legitimate evidence of voluntary and informed consent by this community to this facility legitimate as judged by the Federal Government’s own standard, as set out in the Task Force process it is absurd to argue (as the Draft Scope proposes) that that process proves the need, or the acceptability, of this process. And the decision to further deny the citizens of this community access to an independent EA review panel seriously compounds that affront.

Of course, it is entirely possible that the citizens of Port Granby would join their compatriots in the rest of Ontario in withholding their informed consent to these waste facilities. Such an outcome obviously points to the need to search harder for alternatives to this project whether by way of additional environmental protection or additional compensation or in other ways. By totally avoiding the discussion of alternatives to this process, this screening review gets us no closer to a legitimate solution to the problem.

B. Assessment methodology

By addressing only incremental harm arising from the Port Granby Project and not addressing the effects fifty (50) years of radioactive waste have had on the region, the EA will not objectively define “healthy environment” and is therefore restricted in its ability to achieve or maintain such a goal.

Furthermore, this approach relies on current conditions to provide a baseline for determining environmental impacts and governing the project’s course of action. Since the health of the citizens of Port Granby and their environment are questionable, and on the basis of active dispute between local citizens groups and the federal government, this baseline is insufficient.

The decision to leave the radioactive waste in the Port Granby community and the resulting suggestion that current environmental conditions are acceptable standards also curtails the ability of the Port Granby community to seek full redress for damages that may already have been inflicted on it by the siting of nuclear waste in the region.

By building these pre-conditions into the Draft Scope, the Federal government and the Canadian Nuclear Safety Commission (CNSC) – its designated representative for regulating the use of nuclear energy and materials – decided without full public consultation that the Port Granby community is the best permanent site for the radioactive waste without evidence to demonstrate the validity of such a decision.

Accordingly, the Environmental Assessment for the Port Granby Project can be of limited comfort to the community of Port Granby unless it takes into account a review of alternatives, the need for the project, and the historic impacts of nuclear waste in the region.

3. Scope of the assessment

The Port Granby Project EA must ensure that the extent of the problem is fully understood in order to best evaluate potential impacts and mitigation strategies. This process should include the update of past studies and reports and the conduction of new analyses.

Past and present circumstances should be examined in order to build on existing knowledge, reflect changes to standards, and to reflect CEAA requirements in Section 16(1)(a) that cumulative impacts be addressed.

A. Port Granby: Leaking radioactive hazardous waste site

This report, prepared by Lake Ontario Keeper in August 2001, identifies toxic substances discharging from the site and entering Lake Ontario. Furthermore, the report reveals the fact that 20% of the contaminated ground and surface water currently discharged by Cameco into the lake now escapes without treatment. Sample analysis further shows that even the treated effluent discharged by Cameco is toxic to fish.

B. Lake Ontario Keeper investigations

Over the course of the last year, Lake Ontario Keeper has regularly identified the presence of Migratory birds in the settling ponds, on the waste site and on the contaminated beach adjacent to the Port Granby facility. The EA should identify the impact of contaminated discharges on these birds.

C. Environmental Impact Assessment: The Port Granby Project

This 1977 report, prepared for Eldorado Nuclear Limited, identifies a number of environmental factors regarding fish and spawning areas at the Port Granby site, as well as Aquatic Biology Sampling Stations. All information from 1977 should be updated to 2002 for the purpose of determining continuing impacts from on-going pollution from the site and to assess the cumulative impacts of this proposed project. Of primary concern to Lake Ontario Keeper and Energy Probe is that the Environmental Assessment for the Port Hope Project be fair and transparent and that it provide a legitimate opportunity for public participation. Our recommendations, as stated above, reflect a number of changes that should be made to the Draft Scope in order to ensure that the process fulfils these standards.

Yours truly,

Mark Mattson
Lakekeeper & Counsel
Lake Ontario Keeper

Norman Rubin
Director, Nuclear Research
Energy Probe

Krystyn Tully
Programs Director
Lake Ontario Keeper
Comment on Environmental Assessment Draft Scope