Finishing the job on gas deregulation: separating Gas Merchant and distribution functions

Thomas Adams
Energy Analects
February 19, 1996

After 10 years of success with deregulation of gas, provincial regulators of gas local distribution companies (LDCs) should finish the job. The road forward is to fully deregulate that which can be competitive. Gas merchant functions still under the regulatory umbrella should be separated from rate regulation entirely. The invigorated competitive environment created by this change will benefit customers and the public interest. Further deregulation will lower regulatory costs, improve flexibility and responsiveness to changing market conditions, and diversify the range of interests participating in the industry.

There once was a time when gas transactions in most parts of Canada were entirely controlled by powerful monopolies and their regulators. Producers and consumers were but pawns in a game controlled by external masters. Gas deregulation, which originated in the Western Accord, started to change all that. Signed March 28, 1985, by the governments of Canada, Alberta, British Columbia, and Saskatchewan, the accord was premised the need for a more flexible and market-oriented environment. The Accord led to the Agreement on Natural Gas Markets and Prices of October 31, 1985, which became known as the Halloween Agreement.

In 1986, Ontario became a leader in gas deregulation by embracing the Halloween Agreement. The Ontario Energy Board (OEB) was the first regulator in North America to allow all customers to circumvent utility system gas by switching to gas directly purchased from non-utility suppliers. Not only were big business customers allowed to shop for gas, but homeowners, schools and hospitals could also shop of for better deals. The results have been dramatic. Homeowners in Toronto have seen their rates drop 36 percent in inflation-adjusted terms since deregulation. Based on the Ontario precedent, jurisdictions across North America began opening up their gas markets.

Ontario is losing its position as a leader in deregulation. The Ontario Energy Board, lacking support from the provincial government, is merely reviewing separation in loose public forums. Meanwhile, the Manitoba Public Utilities Board has created a docket to examine separating the merchant function from the LDC function and will commence hearing the case in April.

Gas commodity deregulation by provincial utility regulators could have the counter intuitive effect of strengthening regulation. Provincial regulators generally do not have a direct mandate to strengthen competition. Keeping the gas merchant function within the regulatory ambit protects utilities from the federal Competition Act. Utilities may be able to claim a defence of “regulated conduct” in reply to charges of anti-competitive behaviour as allowed under the act. Without the shield afforded by regulation, competitors would have a stronger case for pursuing federal remedies in the case of abuse of dominance. This is a new form of protection since most provincial regulators do not concern themselves with competition issues directly.

Separation of distribution and merchant functions must be structural. Ideally, separate ownership of the distribution company from the marketer would develop. A method of achieving this end would be to separate the functions, issue existing shareholders with stock in each new company, and allow the ownership pools to drift apart. However, separate ownership may be difficult to achieve in cases where holding companies control LDCs. Some of the benefits of separation could be obtained even if a common parent continues to control the two, although scrutiny by the regulator of affiliate transactions will remain important.

Private LDCs are now being urged, often by competing marketers, to convert their gas sales departments, which are generally operated as not-for-profit services, into for-profit, deregulated, competition-oriented affiliates. Yet, the private utilities resist.

In part, utility resistance to separation may arise out of the measured conservatism that is needed to manage an industry with a very slow rate of capital rollover combined with extreme capital intensiveness. Or utilities may be seeing system gas customers as valuable assets in the event that “lighter regulation” is implemented. Utilities might also see now underutilized customer information as a strategic asset in the event that more competition breaks out.

Because of years of regulatory protection, gas LDCs are effectively quasi-governmental organizations. Utility resistance may result from managers behaving like government department heads protecting turf and pursuing managerial, rather than commercial, incentives. Although shareholders may be attracted to the invitation to create a new profit centre from a currently non-profit activity, managers may be repelled by the implications of losing automatic cost recovery.

Finishing the job of deregulating commodity gas purchasing will bring an end to average-cost pricing for gas. The use of Weighted Average Cost Of Gas (WACOG) is a carry-over from the foregone era of regulated prices. The apparent simplicity of WACOG appeared attractive in a regulated environment where market and consumer behaviours were controlled. However, the veneer of simplicity presented by WACOG conceals a gross inefficiency, which dregulation reveals.

WACOG is inherently unstable in a market environment. Customers, at liberty to move to and from utility system gas, abandon system gas when market prices are falling. Conversely, when market prices are rising, customers flock back to system gas. Customers who seek security by staying on system gas are buffeted by these moves as WACOG reacts to changing demands and prices in a lagged fashion.

More than two years ago, Energy Probe developed and promoted the concept of fixed-price/fixed-term gas contracting for residential consumers. Under our scheme, gas marketing would work like mortgage marketing where terms are offered to consumers who can select from a menu of packages featuring various levels of price risk and time duration. The marketer would offset customer requirements by making matching orders to buy from gas sellers.

Happily, some utilities are now starting to facilitate customers and brokers, or marketers, being able to make arrangements for fixed-price/fixed-term service. The three major Ontario LDCs have recently committed themselves to provide Agency Billing and Collections bundled Transmission service (ABC T) for customers and their representative brokers or marketers. Hopefully, the ABC T concept will be used to give customers the option of price security for fixed terms.

Fixed-price/fixed-term service corrects the inefficiency created by WACOG while enhancing consumer choice. Fixed-price/fixed-term service is a marginal-cost pricing concept.

If utilities develop fixed-price/fixed-term service, there are potential risks to the development of fair competition. Our enthusiasm for fixed-price/fixed-term contracting has not waned, but that enthusiasm does not make us supporters of price differentiation through gas streaming. As the OEB found in its decision in the 410-II/411-II/412-II case in 1987 “gas purchased by the LDC should arrive in Ontario without being streamed to specific customers or customer groups” (1.33).

Price streaming could have many negative effects on competition. Because of their control over billing information, utilities could easily target customers interested in special terms. Risks to utility marketers, such as risks from aggressive marketing or failing to hedge sales commitments with offsetting purchases, could be subsidized by non-participating customers of the utility.

Borrowing some jargon from the demand-side management lexicon, separation transition issues should be managed in accordance with the no-losers test. Intelligently implemented commodity deregulation should make everyone better off.

In making the transition toward complete commodity deregulation, it is unreasonable to demand predictions about exactly how the benefits will come. The specifics of how newly liberated competitive markets will behave are impossible to predict. We cannot presume to know what kinds of new products will arise or what synergies will be discovered. Nor can we prove or guarantee that further deregulation will lower rates, but we have strong reasons to believe that it will, especially given the success to date of limited deregulation.

The transition to fully deregulated markets should not be guided by regulators setting arbitrary targets for market shares of participants in the new world of gas marketing. Market shares should arise, not by design, but by the interplay of market forces in a climate of fair competition.

Separation will raise some questions that the regulators will have to deal with. These include:

Can gas marketers formerly associated with utilities trade under the utility’s name?

Who should be responsible for naturally competitive businesses now within the LDC umbrella like billing, meter reading, and collections?

Although existing meters in rate base should be grandfathered, in the future, who should own the customer’s meter?

Can load balancing needs be met by market mechanisms, or is there a natural monopoly in this area?

The time has come for the regulators and government policy makers to encourage the LDCs to divest themselves of the merchant function. Such separation will assist in protecting the public interest. Just as the utilities now oppose separation, they once opposed direct purchase deregulation. If regulators and governments choose separation, I am willing to bet that in a few years even the utilities who now oppose separation will look back on the decision as the right thing to have done, just as they generally do now when looking back at the first steps toward deregulation.

 

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Moving ahead with gas deregulation: separating Gas Merchant and distribution functions

Thomas Adams
Energy Probe
January 31, 1996

Presenter: Thomas Adams
Director of Utility Research,
Energy Probe Senior Consultant,
Borealis Energy Research Associates

Ontario’s gas local distribution companies (LDCs) and their regulator, which have together done a very good job of serving their customers and the public interest, must make a break with the status quo and embrace further commodity purchase deregulation. Ontario was once in the lead in gas deregulation, but we are no longer in the lead. For example, the Manitoba Public Utilities Board has created a docket for separating the merchant and LDC functions. The road forward is to fully deregulate that which can be competitive and finish the job Ontario started 10 years ago. Full gas purchase deregulation cannot be achieved without institutionally separating the merchant function from regulation.

Energy Probe advocates further deregulation to improve value for consumers, make gas a more aggressive competitor against less environmental attractive fuel forms, and provide a successful model of market reform which can be applied to electricity sector reform. We are confident that further deregulation will lower regulatory costs, improve flexibility and responsiveness to changing market conditions, and diversify the range of interests participating in the industry.

Gas commodity deregulation by the Ontario Energy Board (OEB) could have the counter intuitive effect of strengthening regulation. The OEB does not have a direct mandate to strengthen competition. Keeping the gas merchant function within the regulatory ambit protects utilities from the federal Competition Act. Utilities may be able to claim a defence of “regulated conduct” in reply to charges of anti-competitive behaviour as allowed under the act. Without the shield afforded by regulation, competitors would have a stronger case for pursuing federal remedies in the case of abuse of dominance.

Separation of the distribution function from merchant functions must be structural. Ideally, separate ownership of the distribution company and the marketer would develop. However, this ideal may be difficult to achieve given that holding companies currently control the major LDCs. Some of the benefits of separation could be obtained even if a common parent continues to control the two functions, although regulatory scrutiny of affiliate transactions will still be necessary.

Because of years of regulatory protection, Ontario’s gas LDCs are today quasi-governmental organizations. Energy Probe is generally of the view that minimizing the direct role of government in the energy business is good policy. One example where Ontario’s gas LDCs have excessive, governmental-type powers is the LDCs’ power of life or death over agents, brokers, and marketers (ABMs) through the management of displacement volumes.

How should we understand the lack of interest utilities express in response to the invitation to spin off a currently non-profit function and convert it into a for-profit function? We have some misgivings about using customer surveys as the basis for a case against separation as the utilities have suggested. It is unfortunately true that gas customers are poorly informed about the operation of the gas system. Some customers, when asked if utilities should be allowed to sell gas, may wonder if they are being asked if fuel should be delivered to users. Lack of knowledge on the part of customers is at least in part due to billing practices and rate structures that have obscured the actual underlying costs of service. Energy Probe is very impressed by the commitment of Consumers Gas to break out customer, commodity and capacity costs on the customers’ bills and hopes that this initiative will improve customer awareness.

In part, utility resistance to separation may arise out of the measured conservatism that is needed to manage an industry with a very slow rate of capital rollover combined with extreme capital intensiveness. Or utilities may be seeing system gas customers as valuable assets in the event that “lighter regulation” is implemented. Utilities might also see now underutilised customer information as a strategic asset in the event that more competition breaks out. I recommend an appreciation for the quasi-governmental nature of utilities. I suggest to you that utility managers are behaving like government department heads protecting turf and pursuing managerial, rather than commercial, incentives. Although shareholders may be attracted to the invitation to create a new profit centre from a currently non-profit activity, managers may be repelled by the implications of losing automatic cost recovery.

More than two years ago, at the Direct Purchase hearing, Energy Probe developed and promoted the concept of fixed-price/fixed-term gas contracting for residential consumers. Under our scheme gas marketing would work like mortgage marketing where terms are offered to consumers who can select from a menu of packages featuring various levels of price risk and time duration. The marketer would offset customer requirements by making matching orders to buy from gas sellers.

Because of our interest in customer choice, we are pleased to see the Agency Billing and Collections bundled transmission service (ABC) option being developed now by utilities and ABMs. We hope that ABC will be used to give customers the option of price security for fixed terms.

When we originally proposed fixed-price/fixed-term service, our purpose was to correct instability created by the weighted average cost of gas. Fixed-price/fixed-term service provides a way of moving closer to marginal cost pricing. However, if utilities develop fixed-price/fixed-term service within their regulated operations, there are potential risks for the continued development of fair competition. Our enthusiasm for fixed-price/fixed-term contracting has not waned but that enthusiasm does not make us supporters of price differentiation within regulation through gas streaming. As the OEB found in its decision in the 410-II/411-II/412-II case “gas purchased by the LDC should arrive in Ontario without being streamed to specific customers or customer groups” (1.33).

Regulated price streaming could have many negative effects on competition. Because of their control over billing information, utilities could easily target customers interested in special terms. Risks created by utilities engaging in aggressive marketing, or failure to hedge sales commitments with offsetting purchases, could be subsidized by non-participating customers of the utility.

Borrowing jargon from the demand management lexicon, separation transition issues should be managed in accordance with the no-losers test. Intelligently implemented commodity deregulation should make everyone better off. In making the transition to complete commodity deregulation, it is unreasonable to demand predictions about exactly how the benefits will come. The specifics of how newly liberated competitive markets will behave are impossible to predict. We cannot presume to know what kinds of new products will arise or what synergies will be discovered. Nor can we prove or guarantee that further deregulation will lower rates, but we have strong reasons to believe that it will, especially given the success to date of limited deregulation.

Some may suggest that deregulation be stalled to retain the capacity of the OEB to enforce measures aimed at protecting the environment. Energy Probe lauds the purpose but opposes the means. In our view, the OEB is a rate regulator, not an environmental regulator. If the Board does wade into environmental regulation it should be wary of environmental boomerangs. Efforts by the Board to achieve environmental objectives by imposing special costs on gas, costs that are not imposed on other fuel forms with worse environmental consequences, are likely to increase rather than decrease environmental harm. Environmental regulation should be applied across sectors and fuel forms.

Energy Probe does not support proposals that would set out arbitrary targets for market shares of participants in the new world of gas marketing. Market shares should arise, not by design, but by the interplay of market forces in a climate of fair competition.

Government action is needed to modernize the OEB Act. The obligation to serve needs to be redefined as an obligation to deliver. Gas trades at the customer’s meter must be permitted. Allowing gas trades to be transacted in Ontario is necessary for a local hub price to develop. A local hub price may facilitate more efficient use of existing facilities, a more efficient market in secondary pipeline capacity, and better price signals to guide expansion decisions.

Separation will raise some questions that the OEB will have to deal with. These include:

Can gas marketers formerly associated with utilities trade under the utility’s name?

Who should be responsible for naturally competitive businesses now within the LDC umbrella like billing, meter reading, and collections?

Although existing meters in rate base should be grandfathered, in the future, who should own the customer’s meter?

Can load balancing needs be met by market mechanisms, or is there a natural monopoly in this area?

The time has come for the OEB to encourage the LDCs to divest themselves of the merchant function. Such separation will assist in protecting the public interest. Just as the utilities now oppose separation, they once opposed direct purchase deregulation. If the Board and the government choose separation, I am willing to bet that in a few years even the utilities who now oppose separation will look back on the decision as the right thing to have done, just as they do now with the direct purchase decision.

 

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Feeding the nuclear dragon CANDUs for China?

David H. Martin
Nuclear Awareness Project for the Campaign for Nuclear Phaseout
October 1, 1995

Introduction

The sale of CANDU reactors to China will be a disastrous deal for the people of both Canada and China. The cost to Canadian taxpayers will be enormous, since the cost of AECL and the CANDU reactor continue to require a massive subsidy of about $200 million per year. China can ill afford to put its scarce resources into an expensive technology that has been discredited at home in Canada, where the first large reactor is being phased out, ahead of schedule, in October 1995. It is unacceptable that the Canadian government proposes to provide nuclear technology to a country with the reputation of a nuclear renegade, and which, together with France, has defied a world-wide effort to ban nuclear weapons tests. Furthermore, Canada should not be trading with a nation such as China, which engages in systematic and brutal abuse of human rights.

In November 1994, Atomic Energy of Canada Ltd. (AECL) announced that it had signed a Memorandum of Understanding (MOU) with the China National Nuclear Corporation (CNNC) to begin negotiations on the sale of two CANDU-6 (i.e. 700 MW) reactors. At that time, AECL stated that the deal might take one year to 18 months to complete. The most recent round of negotiations apparently began between AECL and CNNC in the spring of 1993.{1} In the past, nuclear deals between AECL and China have been on-again, off-again. In the spring of 1980, an eight-person delegation from AECL visited China, after interest had been expressed in possibly purchasing two CANDU-6 reactors. Serious Chinese consideration of nuclear power was a shift in policy since the Chinese had apparently had cold feet about nuclear power in the wake of the 1979 Three Mile Island accident.{2} In 1980, an AECL official stated, “The odds now are high we will get a chance to participate in the [Chinese nuclear] program.” {3} However, by February 1981

Current CANDU negotiations with China involve not just a simple price tag, but the terms for a Canadian government loan, and probably the extent of technology transfer that AECL and nuclear manufacturers are prepared to offer the Chinese. The Chinese are already notorious for their disregard of copyright and licensing agreements. In addition, there are moral questions of human rights in China and the potential contribution to the Chinese nuclear weapons program.

The MOU was signed shortly after Chinese Premier Li Peng and Canadian Prime Minister Jean Chrétien had signed a Nuclear Cooperation Agreement (on nuclear weapons proliferation) in November 1994. The site being considered for the reactors is at the Qinshan facility (site of an existing 300 MW reactor), on the coast at Hangzhou Bay in Zhejiang Province, 126 km south-west of Shanghai. It has been suggested that the overall cost of the two reactors might be $3.2 billion to $3.5 billion. It is unclear whether the Chinese will purchase heavy water or fabricated fuel bundles for the reactors (the Chinese have their own heavy water production capability). Of the total cost, it is speculated that about one third would remain in China for construction and the possible manufacture of some plant components. AECL has suggested that Canadian companies might receive up to $2.7 billion worth of business.{5} However, other speculation that Canada would offer financing of about $2 billion, indicates that $2.7 billion i

It has been admitted that the AECL/CNNC agreement “…almost did not take place because of last-minute concessions demanded by the Chinese government”.{7} AECL refused to disclose the concessions that have already been promised, however various sources have confirmed that Canada will finance roughly two-thirds of the project — over $2 billion — through the Export Development Corporation. Natural Resources Minister Anne McLellan has stated that,

“With respect to China, any financing provided by the Canadian

government for a CANDU project in that country would be in the form of

a loan through the Export Development Corporation (EDC). Furthermore,

any loan would be at a non-concessional interest rate as set under the

International Consensus Agreement by the Organization for Economic

Cooperation and Development.”{8}

While the EDC would administer the loan to China, the loan would

actually be made by the Government of Canada. The loan would go through

the “Canada Account” of the EDC, which is carried on the books of the

Departments of Foreign Affairs and International Trade. The government

would have to make the loan for two reasons: it would be far too large

a loan for the EDC to handle, and longer-term sovereign loans to Third

World countries are too risky for the private sector financial

community. In other words, the taxpayers of Canada will be forced to

accept the risk of a multi-billion dollar loan that the private sector

would not even consider.

AECL is hoping that it will be able to negotiate “turnkey” deals for the two reactors. In a “turnkey” project, the builder provides a completed plant, and the buyer only has to “turn the key” to start it. The presumption is that there is no transfer of technology, and accordingly a greater benefit to the vendor. AECL has already proven itself willing to part with CANDU design information for modest fees. CANDU technology transfer (unlike the transfer of other reactor designs, which are controlled by large, integrated private sector corporations such as GE, Westinghouse or Siemens) is in the hands of a number of private sector component manufacturers as well as AECL. As a general rule, these suppliers have sought the sale of at least two CANDU units before licences for manufacturing technology are granted.{9} However, South Korea is the only country that has put in a hard order for more than one CANDU reactor{10}, and with a buyers’ market in effect for so long, Korea was able to negotiate increasingl

The Chinese Nuclear Industry

Two nuclear power facilities have been constructed in China: a 300 MWe PWR at Qinshan (Zhijiang Province); and two 900 MWe PWRs at Daya Bay in Guangdong Province (known as Daya Bay plant or Guangdong-1). The Qinshan plant, owned by China National Nuclear Corporation (CNNC), began operation in 1991. Its components were 70% Chinese in origin, and 30% imported. It has since been shut down for extensive modifications. Daya Bay, on the coast 52 km northeast of Hong Kong, was a joint Anglo-French venture between GEC and Framatome, made possible because of a deal to sell electricity to nearby Hong Kong. An earlier commercial partnership between GEC and CNNC had collapsed when the US refused to allow CNNC to use the Westinghouse PWR licence because of Chinese aid for the Pakistani nuclear weapons program. The first unit was connected to the grid in 1993, and the second in 1994. Daya Bay is 75% owned by CNNC, and 25% by China Light & Power (a Hong Kong utility).

It is recognized that due to capital shortage, these are the only nuclear plants that will be in operation by 2000. However a number of other nuclear projects totalling 8,000 MW (including possibly two 700 MW CANDU reactors) are in various stages of negotiation.

As part of a move to increase domestic nuclear capability, the CNNC was established in 1986. The CNNC (with whom AECL has signed its Memorandum of Understanding for the sale of two reactors) has responsibility for both civilian and military nuclear activities at all levels of the nuclear fuel chain. It has over 200 subsidiaries and about 300,000 employees, including a significant research and development capability.

China and Nuclear Weapons

The Chinese nuclear weapons program was established in 1955, initially with the help of the Soviet Union. Despite the Soviet withdrawal of aid in 1959, China exploded its first atomic bomb in 1964, and its first hydrogen bomb two and a half years later. At that time, China had several plutonium production reactors, a plutonium reprocessing facility and a uranium enrichment facility. China is one of the five declared nuclear weapons states under the Nuclear Non-Proliferation Treaty, and has exploded 43 nuclear bombs since 1964. Despite international pressure, China continued atmospheric bomb tests until 1980 (long after the last atmospheric tests by France in 1974).{11} China has recently done the basic minimum in order to facilitate its entry into the world of international “civilian” nuclear power. It joined the International Atomic Energy Agency (IAEA) in 1984, signing some voluntary safeguard measures in 1988, and it signed on to the Nuclear Non-Proliferation Treaty in 1992. However, in 1991 the China Nuclear Energy Industry Corporation (CNEIC — a subsidiary of the CNNC) sold a 300 MW PWR based on Qinshan-1 to Pakistan, and construction began at the Chasma site in 1993. A contract has also been signed with Iran for a 2X300 MW plant. Coincidentally, China has also sold missile technology to both Pakistan and Iran.{12} Pakistan has been actively pursuing nuclear weapons for some time, and is widely considered an “undeclared” nuclear weapons state, as are India and Israel. In addition, China has also exported a number of “research” reactors. These foreign sales have given China the reputation of a renegade in the dark world of nuclear weapons proliferation.

In September 1992, the United States, Britain, Russia and France joined together for a moratorium on nuclear weapons testing. Immediately before the testing halt, eight tests were conducted in 1992 — six by the US and two by China. Originally set to expire in July, 1993, President Clinton announced at that time that he would extend the moratorium until October 1994 on the condition that no other nation conducted a test.{13} On October 5, 1993 (just 12 days after losing its bid to host the year 2000 Olympic games) China conducted an underground nuclear explosion at the Lop Nur test site in the north-western province of Xinjiang. The test was China’s thirty-ninth since 1964. In June 1994, Canadian Foreign Affairs Minister Andr Ouellet appealed to the Chinese to halt their imminent nuclear bomb test. A week later, the Chinese exploded their 40th bomb at Lop Nur. A Canadian seismic station at Yellowknife placed the explosion at 40 kilotonnes — about twice the explosive force of the Hiroshima bomb.{14} Th

The 42nd Chinese nuclear test came on May 15, 1995, a few days after the conclusion of the extension of the Nuclear Non-Proliferation Treaty.{16} Although Foreign Affairs Minister André Ouellet had been strangely silent about the Chinese test just before the Canadian trade visit, he criticized the May test, saying, “This latest Chinese test clearly violates the positive spirit that led to the indefinite extension, supported by China, of the NPT just three days ago. Canada calls on China to cease all further testing and to adhere to the nuclear testing moratoria observed by the other nuclear weapons states.”{17} China’s 43rd nuclear weapons test came in August 1995. Canada’s opposition to Chinese testing is clearly only rhetoric, and the government is not willing to back it up with meaningful commitment, such as trade sanctions.

The Chinese decision to proceed with weapons testing in defiance of what was then an effective world ban, was provocative and destabilizing at a very sensitive time. The 25-year-old Nuclear Non-Proliferation Treaty (NPT) was under review in a controversial “Extension Conference”, in New York in April 1995. The five declared nuclear weapons powers sought, and despite strong opposition, obtained an indefinite extension. China’s flouting of the voluntary test-ban further eroded the credibility of the NPT.{18} There have also been attempts through the Conference on Disarmament and the Test Ban Amendment Conference to transform the 1963 Partial Test Ban Treaty into a comprehensive treaty by 1996.{19} Again, Chinese weapons tests have been a significant stumbling block to progress. There can also be little doubt that Chinese testing helped to create the “political space” for France to resume its nuclear testing in the South Pacific.

The Chinese argue that their nuclear bomb tests are needed to confirm the safety and reliability of its weapons, and that they need to make these tests prior to the likely implementation of a Comprehensive Test Ban in 1996.{20} It is also safe to say that the NPT Extension Conference heightened international pressure to end weapons tests. Once again, China was an international nuclear “bad boy” with its subsequent nuclear test. By proceeding with a deal to sell CANDU reactors to China, in the midst of these delicate negotiations, Canada has exhibited callous disregard for the international disarmament process. The message to China is that it can continue to ignore the political posturing of Canada and the other western powers, relying on the possibility of reactor sales and other trade relations to overcome any real threat in the form of sanctions or trade boycott. The Liberal government in Ottawa has injured Canada’s credibility as a peacemaker, in a desperate drive to keep AECL and the Canadian nuc

China: A Risky Business Proposition

With a largely untapped market of 1.2 billion people, China has had a magical allure for international capital. However, the bloom on the rose has faded in the last year, and it has become increasingly clear that investment in China is a high-risk proposition. In 1994, the Chinese national government decided that foreigners could not have a majority ownership of power projects.{21} China has also apparently decided to limit the rate of return for foreign companies investing in power projects — limits ranging from 12 to 15% have been discussed.{22} Even well-known power project developers such as Gordon Wu have abandoned China for deals in Pakistan and India that are presumably safer and more lucrative.{23} This is extremely revealing, since through Hopewell Holdings, Wu pioneered power investments in China, and his projects have been identified as exemplary by Ontario Hydro and others.{24}

There are a number of other danger signs: Chinese state enterprises have defaulted on $600 million in loans from Japanese, German and Italian banks; the China International Trust & Investment Corp. (CITIC) is refusing to pay a $40 million debt to the London Metal Exchange; and two other state companies are refusing to pay $100 million in trading losses to Lehman Brothers Inc.{25} In the most high profile trade disagreement, a trade war between the USA and China over the copyright protection of intellectual property rights was narrowly averted in February 1995.{26} However, the reconciliation was short-lived, as a new trade disagreement was triggered when China failed to live up to a 1992 Memorandum of Understanding to lift import controls, licence requirements and quotas on a variety of products.{27} The expropriation of the largest Mcdonald’s restaurant in the world in Beijing, despite a 20 year contract, has sent shivers through the foreign investment community. Adding to the uncertainty of the fut

CANDU Sales and Human Rights in China

On November 7, 1994, in a momentary aside during commercial discussions, Prime Minister Chrétien mentioned to Chinese Premier Li Peng that Canada wants to maintain a dialogue with China on the question of human rights and then quickly reassured the Premier that Canada would not link trade and human rights.{29} Li Peng is a former electrical engineer known to be a nuclear power booster. He is also widely assumed to be the main planner and instigator of the Tiananmen Square Massacre in June 1989. The Chinese simply ignored Chrétien’s feeble overture, and a spokesperson for Li Peng denied that human rights had even been raised. Nova Scotia Premier John Savage also could not remember Chrétien raising the issue.

Just one month after Prime Minister Chrétien and the provincial premiers had left China, a group of non-violent pro-democracy activists in Beijing received prison sentences of up to 20 years. The group, known as the “Beijing 15” were arrested in 1992, after they had planned to distribute leaflets on the anniversary of the Tiananmen massacre.{30} The sentences were undoubtedly timed to come after the Canadian trade delegation. China continues to officially defend the Tiananmen Square massacre, in which several hundred people are assumed to have perished. In the opinion of Amnesty International, repression has continued since that time. . . .

“Despite rapid economic changes in recent years, which have led to

increased freedom and some relaxation of social controls, there has

been no fundamental change in the government’s human rights policy.

Dissent in any form continues to be repressed and serious human rights

violations continue.”{31}

Chinese authorities acknowledge holding over 3,000 prisoners for

“counterrevolutionary offenses” (i.e. for political dissent). It is

estimated that many more political prisoners have been charged with

criminal offenses — for example, people participating in peaceful

demonstrations have been charged with “disturbing public order” or

“hooliganism”. In addition there has been documentation of widespread

use of torture in China.{32} In March 1994, John Shattuck, US Assistant

Secretary of State for Democracy, Human Rights and Labour, met in

Beijing with prominent Chinese dissident Wei Jingsheng, just freed

after 14 years in prison. Wei was re-arrested shortly after meeting

with Mr. Shattuck and has not been heard from since.

The continued abuse of human rights in China indicates the bankruptcy of Canada’s policy of reform through engagement. Canada should have the moral courage to clearly raise human rights issues, and should be prepared to forego trade relations with countries such as China which have been consistent and long-term violators of basic human rights.

FOOTNOTES

{1} Barrie McKenna, “Canadian Firms see $2.7 billion in Candu deals”, Globe and Mail, November 9, 1994, p. B1.

{2} “China still interested in CANDU, AECL says”, Globe and Mail, October 18, 1980.

{3} Thomas Claridge, “Chinese plans for nuclear could aid ailing Canadian industry”, Globe and Mail, April 7, 1980.

{4} Bryan Johnson, “Hope for CANDU sale dashed by Chinese”, Globe and Mail, February 24, 1981.

{5} Barrie McKenna, “Canadian firms see $2.7 billion in Candu deals”, Globe and Mail, November 9, 1995, p. B1.

{6} Michael Urlocker, “China’s deal for CANDUs won’t cure AECL’s ills”, Financial Post, November 11, 1994, p. 6.

{7} Anthony Wilson-Smith, “The China Deal: Chrétien’s Team Canada wins big contracts for Canada”, Maclean’s, November 21, 1994, p. 14.

{8} Hon. Anne McLellan, Minister of Natural Resources, letter to Mr. Rich Krechowicz, May 4, 1995.

{9} “Canada’s Reactor Exports”, Nuclear Policy Review Background Papers, Energy, Mines & Resources Canada, Report No. ER81-2E, 1981, p.271.

{10} Romania has nominally ordered 5 reactors, however, only one reactor has proceeded with financing from Canada. It is highly unlikely that a second reactor at Cernavoda will proceed without similar concessionary financing, and technical assistance.

{11} “Known nuclear tests worldwide, 1945-1993”, Bulletin of the Atomic Scientists, May/June 1994, pp. 62-63.

{12} Robert Sheppard, “CANDUs for China? Hold on There”, Globe and Mail, November 7, 1994, p. A13.

{13} Tom Zamora Collina, “China bucks ban with bang”, Bulletin of the Atomic Scientists, December 1993, p. 3.

{14} Jeff Sallot, “To keep nuclear materials in check”, Globe and Mail, September 9, 1994, p. A21.

{15} “Notes for an Address by the Honourable Roy MacLaren, Minister for International Trade, To the Annual General Meeting of the Canada-China Business Council, Beijing, China”, This Week in Trade and Foreign Policy, November 8, 1994.

{16} Paul Knox, “Chinese nuclear test draws fire”, Globe and Mail, May 16, 1995, p. A14.

{17} “Canada Deplores Chinese Nuclear Weapons Test Explosion”, This Week in Trade and Foreign Policy, May 15, 1995.

{18} The NPT is premised upon the intrinsically flawed concept of providing “civilian” nuclear technology to non-nuclear weapons states in order to encourage them to forego nuclear weapons. The other part of the NPT bargain is that the declared nuclear weapons states will voluntarily disarm. Progress has been slow and dubious at best, since the five nuclear powers still support deterrence as a strategic concept, and the US and Russia apparently do not intend to reduce their arsenals below 3,000 to 3,500 weapons each. Failure to achieve a test-ban to date has been added evidence of failure on the part of the weapons states.

{19} William Epstein, “Give more to get more”, Bulletin of the Atomic Scientists, November/December 1994, p. 15.

{20} Dingli Shen, “Toward a nuclear-weapons-free world: a Chinese perspective”, Bulletin of the Atomic Scientists, March/April 1994, p. 51.

{21} “Spate of discord sours quick romance with China”, Globe and Mail, December 3, 1994, p. B6.

{22} See: Peter Cook, “Lessons in the China trade”, Globe and Mail, November 4, 1994. Also: “Spate of discord sours quick romance with China”, Globe and Mail, December 3, 1994, p. B6.

{23} “Spate of discord sours quick romance with China”, Globe and Mail, December 3, 1994, p. B6.

{24} See for example comments of Ontario Hydro International executives in Ontario Energy Board, EBRLG 36 — OHII, Technical Conference, October 19, 1994, p. 137. Hopewell Holdings is a Hong Kong construction and engineering company. In 1993, a new company called Consolidated Electric Power of Asia (CEPA) was formed, 75% owned by Hopewell. CEPA acts as holding company for three power plants in China, built by Hopewell (including an 800 MW coal plant in Guangdong). The assets of Hopewell plus global equity financing of US$800 million make CEPA one of largest private power generation companies in Asia. Source: Ontario Energy Board, EBRLG 36 — OHII, Interrogatory Response 7.15.14, November 16, 1994.

{25} “Spate of discord sours quick romance with China”, Globe and Mail, December 3, 1994, p. B6.

{26} Rod Mickleburgh, “US, China avert trade war”, Globe and Mail, February 27, 1995, p. B1.

{27} Steven Mufson, “China, US make up — and fall out again”, Toronto Star, March 12, 1995, p. A4.

{28} Paul Watson, “Good fortune for China uncertain in Year of Pig”, Toronto Star, January 31, 1995, p. A1.

{29} Carol Goar, “Chinese ignore proposal on rights”, Toronto Star, November 8, 1994, p. A1.

{30} Rod Mickleburgh, “Chinese hand dissidents long terms”, Globe and Mail, December 17, 1994, p. A14.

{31} Amnesty International, China: Human Rights Violations Five Years After Tiananmen, ASA 17/20/94, June 1994, p. 3.

{32} Amnesty International, Ibid.. See also the following Amnesty reports: China / Dissidents Detained Since 1992: Political Trials and Administrative Sentences, ASA 17/05/94, January 1994. China / Protestants and Catholics detained since 1993, ASA 17/06/94, March 1994. China / Update on Torture, ASA 17/12/93, March 1993. China / Torture and Ill-Treatment: Comments on the additional report of the People’s Republic of China to the UN Committee against Torture, ASA 17/11/93, March 1993.

 

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Risks of a Nuclear Waste Disposal Facility

Norman Rubin
Borealis Energy Research Association on behalf of Energy Probe
August 8, 1995

Part 2 of Energy Probe’s Submission on The Adequacy of Atomic Energy of Canada Limited’s Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste. Submitted to the Federal Environmental Assessment Review Panel.

Introduction

In September 1994, Atomic Energy of Canada Limited (AECL) completed its Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste (the “EIS”). The following month marked the beginning of a nine-month review of how adequately that EIS addresses the issues raised in the Federal Environmental Assessment Review Panel’s Final Guidelines for the Preparation of an Environmental Impact Statement on the Nuclear Fuel Waste Management and Disposal Concept (the “Guidelines”). As part of that review, Energy Probe retained Borealis Energy Research Association as a consultant to examine risk methodology and criteria.

In describing the first phase of work, Energy Probe asked Borealis to review the EIS and supporting documentation and to comment on its behalf on the adequacy of its treatment of risk methodology and criteria. Energy Probe advised Borealis to focus especially on the following areas:
(1) total population, individual, and environmental risks, especially due to radioactive substances that may be released from the envisaged repository (Guidelines, pages 10-11), including the risks of human health impacts such as “additional cancers” (Guidelines, page 55);
(2) the criteria that relate to those risks (Guidelines, pages 13, 18, and 20, etc.);
(3) the definitions of safety and acceptability (Guidelines, pages 9, 11); and
(4) adequate proof of safety (Guidelines, page 11).
The following report provides that review and Energy Probe’s comments. In general, it documents multiple and systematic failures on AECL’s part to produce the information requested in the Guidelines. Indeed (as documented below), AECL’s EIS in the areas of risk methodology and criteria seems essentially to be a response to the regulatory documents of the Atomic Energy Control Board (AECB), rather than a response to the Federal Environmental Assessment Review Panel’s Guidelines. As a result, AECL’s review of risk methodology and criteria is an inadequate basis for meaningful public hearings on its proposed concept. (Despite Energy Probe’s serious concerns with several aspects of this Federal Environmental Assessment Review process, it does constitute a process that is far more modern, enlightened, and responsive to the public than any process the AECB has ever initiated — including the process that gave rise to AECB’s three regulatory documents on nuclear fuel waste disposal (R-71, R-72, and R-104). As a result, it is extremely important that this Panel ensure that the concept for geological nuclear fuel waste disposal is tested against the Panel’s own guidelines, and not merely the essentially “self-regulatory” requirements of the AECB.)

As requested by the Panel, this report refrains from commenting on the merits of the opinions and conclusions of the EIS, as opposed to its sufficiency to form the basis of public hearings. Accordingly, the absence of critical remarks herein should not be mistaken for endorsement of AECL’s opinions and conclusions.

It must be noted that funding for intervenors in this review has been extremely limited, and will not permit public-interest intervenors to provide the kind of expert evidence necessary to remedy the inadequacies documented below. It is therefore essential that these inadequacies be corrected before any more effort is spent on the review of the merits of the opinions and conclusions of the EIS.

General Recommendation: The Panel should insist that all identified inadequacies are corrected before any more effort is spent on the review of the merits of the opinions and conclusions of the EIS.
General comment on the structure and presentation of the EIS documents:

The organization of the EIS documents, including the EIS volume itself, is completely different from the organization of the Guidelines, on which it should be based. (See EIS, pp. 12-13, “Unusual Aspects of this Review and this EIS”.) Supposedly as mitigation of this offense, AECL has provided, in Appendix A of the EIS, “a cross-reference that indicates where items in the guidelines are addressed in the EIS [EIS, p. 13]”. Unfortunately, that 4-page cross-reference is totally inadequate to repair the deficiencies caused by AECL’s disregard of the structure and logic of the Panel’s Guidelines. For example, in searching for AECL’s discussion of “risk on the basis of total population” from the reference disposal system (Guidelines, §3.2, p. 10, discussed directly below), the reader (including the Panel!) is directed to search through Sections 2.2.9, 3.2, and 3.4.3 of the EIS, and Chapters 6, 7, and 9, and Appendix H in their entirety! As discussed below, that discussion is apparently not contained in any of those 135-odd pages, or anywhere in the companion volume The Disposal of Canada’s Nuclear Fuel Waste: Postclosure Assessment of a Reference System (henceforth, “R-Postclosure”).
The extent to which the deficiencies of AECL’s EIS documents are the result of its decision to ignore the Guidelines’ structure remains a subject for conjecture; however, the difficulties that decision poses to readers, intervenors, and the Panel itself — both in assessing the documents’ deficiencies and in locating the answers to specific questions asked in the Guidelines — are real and significant.

Recommendation: The Panel must direct AECL to respond directly to the Guidelines — either by preparing a new “companion” document based on the structure of the Guidelines or by beginning over, with the structure and content of the Guidelines in mind. To prevent the squandering of the precious resources of the Panel and public-interest intervenors, the Panel must not progress toward a hearing until that work is completed and judged sufficient.
General concerns regarding the future of the process:

It is a feature of this FEARO review of this concept that the developer of the concept and the author of the EIS documents (AECL) will not necessarily be the proponent or “implementing organization” of the actual management or disposal of nuclear wastes. AECL leaves the issue officially open in its discussion of the implementing organization (EIS, pp. 79-80), but also claims that it is essential to maintain AECL’s own “team” if Canada is to avoid losing a $400 million asset. (See “The Potential Loss of Technology”, EIS pp. 76-77.) Energy Probe’s contrary view on the selection of an implementing organization is also a matter of public record, and was presented to this Panel in the Scoping and Guidelines stage of this process. We continue to believe that AECL, given its mandate, its management, its history, its current priorities, and its corporate culture, is unlikely to succeed at the task of finding a publicly acceptable solution to the problems it has so aggressively promoted. Now, in light of the pervasive and apparently willful nature of many of the deficiencies in AECL’s documents (as documented below), we would suggest that the Panel consider, or urge the federal government to consider, the possibility that further investment of public funds in AECL, to remedy this deficient Environmental Impact Statement, will prove a bad investment.
Total population, individual, and environmental risks

Total population risk has not been estimated, discussed, or controlled.
The Panel directed AECL to “discuss and, where possible, quantify the risks to the health of humans and human communities . . . that are associated with the concept . . . This discussion should include . . . the following: risk on the basis of total population and the individual; . . . [Guidelines, p. 10; italics added]”. In this regard, the Panel was significantly more responsive to public concerns than the Atomic Energy Control Board, which neither discusses nor regulates the total population risk from a nuclear waste repository in its three relevant Regulatory Documents (R-71, R-72, and R-104).

Unfortunately, AECL has ignored the Panel’s direction, apparently without even mentioning it. We have only located one passage in the EIS that even remotely or indirectly discusses the decision to ignore the Panel’s direction: Pages 17-19 in R-Postclosure quote the basic guidelines in AECB’s Regulatory Document R-104 (cited in R-Postclosure as “AECB 1987a”). These guidelines refer specifically and repeatedly to “the individual of concern” or to “individual risk requirements”, and never refer to risk on the basis of total population. AECL’s first two sentences immediately after the quotations from R-104 are as follows:

The postclosure assessment of the reference disposal system includes an estimate of the radiological risk that complies with these four guidelines.

Much of our analysis is focussed on estimates of a variable that is measurable: annual dose to members of the critical group.

It must be pointed out that — despite AECL’s use of the plural word “members”, and despite its frequent avoidance of the word “individual” — what AECL calls “a variable that is measurable” is the dose (and from the dose, the health risk) to an individual member of the critical group. (According to the discussion and Figure D-54 in R-Postclosure, p. 502, the median-value size of the critical group is three persons.) All the text, charts, and graphs of “Estimated Mean Annual Dose [Sv/a]” or of “annual dose estimate [ADE]” in AECL’s submissions, covering hundreds of pages, refer only to the dose to an individual member of the critical group, and not to the collective dose or risk on the basis of total population.

This omission is extremely unfortunate, because it makes many extremely important decisions, tradeoffs, and ethical dilemmas simply vanish from view — and from the EIS documents. For example, the SYVAC model, operating only on individual dose and risk, “proves” that contaminating a well that provides drinking water for three people is far worse than contaminating a lake that serves many more people. The lake is larger, providing more dilution and therefore a lower dose to the individual. In reality, the expected total harm to humans would presumably be greater from the lake contamination, but apparently AECL hasn’t asked its staff to use the model to answer that question. (Virtually identical comments could be made about AECL’s “proof” in R-Postclosure, pp. 490-502, that the predicted annual dose decreases as the number of people drinking from a contaminated well increases.)
Similarly, the question of how far from human population concentrations to site a nuclear waste repository is a very important issue that trades off cost versus population risk, but not necessarily individual risk. To take an extreme example: A repository in downtown Toronto would most likely show lower individual doses and risks than the reference repository near Whiteshell: nobody in Toronto drinks well water, and poisons leaching out of the repository would soon reach Lake Ontario, whose enormous volume would provide significant dilution. The fact that millions of people would be put at risk, increasing the total population dose and total harm, simply does not appear from the models, as run by AECL. (AECB’s Regulatory Documents would also apparently permit urban or suburban siting of a repository — ironic because AECB’s Regulatory Documents for reactor siting place limits on total population dose!)

The totally absurd discussion of the impacts of urbanization on the discharge site (in R-Postclosure, p. 56, table 4-1) shows a “real-life” example of how AECL’s (and AECB’s) elimination of this basic and common-sense consideration can lead to sheer idiocy: “Although the discharge site could become urbanized, it is reasonable to expect that overestimates of impact [i.e., dose to the individual!] would always be obtained by assuming the discharge site is rural (Davis et al. 1993). . . . Because impacts are estimated for the group at most risk (the critical group), it is conservative to assume that they have the characteristics of a rural group and that the discharge site is rural.”

Recommendation: The Panel must, once again, direct AECL to model the collective dose or risk on the basis of total population. All the screenings, simulations, sensitivity analyses, design constraints, optimizations, etc., done with the SYVAC computer model must be redone, “on the basis of [both] total population and the individual”.
The potential for additional cancers has not been presented. (But the individual risk of fatal cancer has been deficiently represented.)

Throughout the EIS and R-Postclosure, the estimated radiation doses from the “reference system” repository — given only in terms of individual radiation doses, as discussed above — are translated into what AECL calls “the probability of a health effect”. This translation is a deficient response to the Guidelines in at least two ways:

 As AECL explains (e.g., EIS, p. 297), the very inclusive-sounding “a health effect” actually includes only fatal cancers or serious genetic effects. There is no attempt made to estimate the non-fatal cancers (or non-fatal genetic effects) that the planned repository will cause. Thus, for example, the graphs in Figure 7-7 and Figure 7-9 in the EIS volume (pp. 297 and 299) purport to show “Risk (probability of an individual incurring a health effect/a)” as a function of time, but do no such thing. Any suggestion that an AECL-induced non-fatal cancer is not a health effect is a deficiency in common English usage and common decency, as well as in responding to the Guidelines. (E.g., Guidelines, page 55, directs AECL that “Potential impacts should be expressed in terms that are readily understandable, such as: . . . the potential for additional cancers.”)

 The risks (only individual) of cancer (only fatal) are intentionally underestimated throughout, “as specified by the AECB in R-104 (Appendix B), using 0.02 as the probability of a health effect (fatal cancer or serious genetic effect) per sievert. [EIS, p. 297]” Since 1987 (the date of the AECB’s R-104), both ICRP and AECB have replaced that risk factor with one that is several times higher (as is acknowledged deep in Appendix H, EIS p. 460). Even in a submission to AECB (which this entire AECL submission resembles, but should not), the use of an obsolete, non-conservative risk factor would be a deficiency; in a submission to a FEARO panel, it is absurdly deficient.

Of course, the omission of any calculation of collective risk on the basis of total population, as discussed above, compounds these two deficiencies.
Criteria that relate to risks, and the definitions of safety and acceptability

In Guidelines § 5, page 13, the Panel requires AECL to develop “adequate long-term performance criteria . . . for each of the components of the system, and for the system as a whole. A comparison with regulatory criteria . . . should also be provided.” Guidelines § 5.13, page 18, refers more specifically to “criteria for abandonment or rejection of a vault or sections of a vault . . . “, while Guidelines § 5.2, page 20, refers to the analogous “criteria for the rejection of a rock mass . . . “. Based on our reading of two of AECL’s volumes (the EIS and R-Postclosure), AECL has not developed any long-term performance criteria, adequate or otherwise, at least for the system as a whole. Nor has it provided the requested “comparison with regulatory criteria.” Rather, it has circularly defined “safe” to mean no more than “permitted by regulations”, as follows:
We define safe as meeting criteria, guidelines and standards for protecting the health of humans and non-human biota. Criteria, guidelines, and standards for the protection of human health and the natural environment are specified in legislation, regulatory documents issued by the AECB, and guidelines, as described in Appendix B. Some may also be specified in the licenses issued by the AECB. (EIS, p. 63; “safe” is similarly defined in the Glossary, p. 495.)

The apparently total lack of independent criteria is clearly at odds with the Panel’s direction in the Guidelines sections quoted above. Further, it substitutes narrow and lax regulatory scrutiny by the “industry-friendly” AECB for the much broader scrutiny of an independently appointed, and more broadly representative, Federal Environmental Assessment Review Panel. Finally, by primarily “working backwards” from a computer-model-estimated radiation dose to a future individual, it places far too much emphasis on computer modelling of the repository, which is highly uncertain and error-prone, and also highly dependent on a specific site and therefore beyond the scope of this Panel. This Panel has before it only the “for instance” results of computer modelling of a “reference system”, modeled on a site near the Whiteshell Nuclear Research Establishment in Manitoba — a province with no nuclear generating stations and legislation prohibiting the disposal of out-of-province nuclear wastes.

In addition to the Panel’s own clear direction in the Guidelines sections quoted above, we would remind the Panel, and AECL, of Energy Probe’s long-term views on this topic, as presented in the Scoping and Guidelines phase of this Review:
 What minimum “performance criteria” and how many are appropriate for the decision to bury high level nuclear waste? What levels for these criteria does AECL propose?
. . .
 To what extent should deterministic (“pass fail”, “disqualifying”, or “drop dead”) criteria be applied in the process of site screening or selection? Which such criteria does AECL propose using?
(Energy Probe’s October 22, 1990 submission, p. 2)

We have found several brief references to the notion of “acceptable risk”, but no definition, as requested on p. 9 of the Guidelines.
Adequate proof of safety

Guidelines, page 11, calls on AECL to discuss not only “a definition of safety in relation to the concept”, but also “an outline of what would constitute adequate proof of safety.” Although the documents contain several references to the (inadequate) provisions of the AECB’s Document R-104, we can find no such outline.
Other deficiencies
Possible fissioning of weapons-grade Plutonium
The Panel directed AECL to discuss “the possible changes in the nature and characteristics of nuclear fuel waste due to changes in nuclear power technology or in energy policies (Guidelines, page 4)”, as well as the effect of changes in nuclear technology on the amount of nuclear fuel waste (Guidelines, page 8). One change in nuclear power technology which is currently being proposed by Ontario Hydro and AECL to the U.S. government is the fissioning, in Canada (probably at the Bruce-A Nuclear Generating Station) of fuel containing weapons-grade Plutonium from U.S., or possibly former Soviet, nuclear weapons. Reportedly, the preferred option being proposed by Ontario Hydro and AECL involves the operation of the Bruce-A Nuclear Generating Station for many years longer than is currently planned by Ontario Hydro. Further, in all current proposals discussed in public, the resulting nuclear fuel waste would remain in Canada. This proposal could therefore change both the quantity and the nature and characteristics of the nuclear fuel waste awaiting disposal in Canada. The EIS documents do not discuss these changes, or their impact on the concept.
“Postclosure” retrieval of buried nuclear fuel waste

In Guidelines, §3.3, page 11, “Retrieval of Buried Nuclear Fuel Waste”, the Panel directed AECL as follows:
The EIS should outline plans and procedures which would be required for the retrieval of nuclear fuel waste from a sealed and decommissioned disposal vault under emergency or other circumstances. This should include estimates of the cost of such an operation . . .
Appendix A of the EIS volume refers to two sections in that volume as addressing this topic: § 3.6.6, “Retrievability”, and § 5.8.9, “Waste Retrieval” (EIS, pp. 72-72 and p. 199). Neither provides the cost estimates specified in the Guidelines. Further, the description of “the reference disposal vault” on pp. 42-43 of R-Postclosure makes no mention of the topic at all.
Erroneous exclusion of Chlorine-36 from estimated doses and risks.

Perhaps the most striking error which AECL committed and subsequently detected is the erroneous exclusion of Chlorine-36 from the list of radionuclides of concern. (See EIS p. 315, and R-Postclosure pp. 266-7.) Originally thought to be too insignificant to be included among the 68 radionuclides of concern, it may well turn out to be the single most important cause of modelled long-term radiation dose. (In the EIS documents, AECL only acknowledges that its contribution could be “comparable to radiation doses resulting from Iodine-129”. Of course, Iodine-129 totally dominates the repository’s estimated long-term radiation dose to individuals. (See, e.g., Figures ES-4 and 6-4 in R-Postclosure pp. xiii and 153: “The largest contributor is 129I; in fact, the curve of its ADE [annual dose estimate] coincides with the curve for total ADE.”)

This error, and others that have recently been discovered, should be rectified before this assessment proceeds to a hearing.
The EIS and its models must either use plausible data or the EIS must explain why not.
Through a chance coincidence, explained in a footnote to Table 6-2 on page 166 of R-Postclosure, readers of AECL’s documents can discover that the plant/soil model used in SYVAC contains a discontinuity which, we presume, is not reflected in the reality of plants and soil. We are in no position to examine all of SYVAC’s input data for similarly implausible “artifacts”, and doubt that the Panel or its Scientific Review Group is, either. Accordingly, either we must all simply distrust the integrity of AECL’s data in general, or the job must fall to AECL to indicate where there are physically implausible discontinuities in their data because of the simple combination of algorithms. Preferably, AECL would do further research to reconcile the two algorithms at their boundaries. The Panel must assure that AECL rectifies each of these deficiencies in one way or the other.
The discussion in EIS §3.10, “Timing of Disposal”, does not take account of the information on EIS page 38, concerning “trends in the setting of safety standards”.

Page 38 indicates (and we agree) that there is a trend toward more protective safety standards (either in general or for radioactive contamination in particular), as well as a trend for “new biological information” to increase the risk factors for radiation. Accordingly, there may well be a clear benefit to future populations from delaying the disposal of these radioactive wastes, until standards have become more protective. AECL should be directed to connect these two issues, and also to address the issue of evolving standards in its discussion of alternatives to the concept that delay burial

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Siting a Nuclear Waste Disposal Facility

Elizabeth Brubaker
Borealis Energy Research Association on behalf of Energy Probe
July 28, 1995

Part 1 of Energy Probe’s Submission on The Adequacy of Atomic Energy of Canada Limited’s Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste. Submitted to the Federal Environmental Assessment Review Panel.

 

Introduction

In September 1994, Atomic Energy of Canada
Limited (AECL) completed its Environmental
Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste

(the “EIS“). The following month marked the beginning of a nine-month review of
the EIS. As part of that review,
Energy Probe retained Borealis Energy Research Association as a consultant to
examine approaches to siting. Energy Probe advised Borealis to focus on the
following areas: past and current site selection methods; community
decision-making structures, and processes for the incorporation of these
decision-making structures into site selection decisions; ethical
considerations for site selection; and criteria used by AECL to site a disposal
facility and transport routes.

In describing the first phase of work, Energy
Probe asked Borealis to review the EIS
and supporting documentation on its behalf and to comment on the extent to
which AECL addresses the siting issues raised in the Federal Environmental
Assessment Review Panel’s Final
Guidelines for the Preparation of an Environmental Impact Statement on the
Nuclear Fuel Waste Management and Disposal Concept
(the “Guidelines“).

The following report provides that review. In
general, it documents multiple failures on AECL’s part to produce the
information requested in the Guidelines:
AECL’s review of site selection methods is incomplete, unclear and
insufficiently analytical; AECL fails to examine the applicability of others’
experience to the siting of a permanent high-level nuclear waste disposal
facility; AECL provides insufficient information on key elements of the
proposed approach; and AECL’s analysis of ethical issues is inadequate.

As requested by the Panel, this report refrains
from commenting on the merits of the opinions and conclusions of the EIS. Accordingly, the absence of
critical remarks herein should not be mistaken for endorsement of AECL’s
positions.

It must be noted that funding for intervenors
in this review has been extremely limited, and will not permit them to lead the
kind of expert evidence necessary to remedy the inadequacies documented below.
It is therefore essential that AECL be directed to correct these inadequacies
promptly before any more effort is spent on the review of the merits of the
opinions and conclusions of the EIS.

 

 Facility Site Selection Methods, Processes, and Experiences: The History and Promise of Voluntarism

 The Federal Environmental Assessment Review
Panel’s Guidelines require AECL to
include in its discussion of siting options “the use of past and current site
selection methods, processes, and experiences” (35). Canadian case studies to
be used as analogs could include “mining developments, power plant facilities,
and toxic waste management facilities” (32). In addition, the Guidelines suggest that AECL should, like the Panel, examine plans for siting nuclear waste disposal facilities in
other leading countries: “The Panel will also become aware of the development
of programs for appropriate plans and schedules for siting and construction of
nuclear fuel waste management facilities in these countries” (xi).

 Canadian Experience

In discussing past and current site selection methods, AECL concentrates on those based on the principle of voluntarism. Its EIS mentions two recent Canadian siting processes – in Alberta and Manitoba – in which communities volunteered to host hazardous waste management facilities. The EIS also notes the process now underway to site Ontario’s low-level radioactive waste (66). It does not, however, provide any information or commentary on these processes. One of AECL’s primary reference documents, Disposal
of Canada’s Nuclear Fuel Waste: Public Involvement and Social Aspects
(“Social Aspects“), provides further information on Canada’s experience with voluntary siting processes, concluding that “[r]ecent experience with voluntary siting processes demonstrates that communities are willing to be considered as potential host communities” (194). But its discussion of the above-noted experience, admittedly “brief” (164), is unsatisfactory. Covering less than two pages, it contains virtually no information on what made the successful processes work, what their key components were, what opposition they met, what other problems they faced, or how the siting organization addressed such problems. Nor does AECL discuss the long-term impacts resulting from the experiences analysed, despite instructions that its analysis should include “evaluation of the changes or
impacts, over appropriate time periods, that could be viewed directly or indirectly
as having resulted from activities or aspects of the major projects selected as
analogs” (Guidelines, 47‑48).

Nowhere does AECL discuss the applicability ofspecific case studies to the siting of a repository for high-level radioactive waste. In the absence of an analysis of the similarities and differences in public attitudes towards the facilities, and of how any differences might
affect sitability, it is impossible to judge whether past experiences might be replicable in the context of high-level radioactive waste disposal.

The comments that AECL does offer regarding the similarities or differences among various types of controversial facilities contradict one another. AECL downplays potential differences in its volume summarizing the EIS (the “EIS Summary“), suggesting, “The types of potential effects identified are not unique. Those identified for the disposal
facility are similar to effects encountered at large civil engineering projects, mining developments, nuclear generating stations, waste management facilities, and other large‑scale projects” (41). This echoes an earlier statement that “[t]he potential socio‑economic effects of disposal, both adverse and beneficial, are to some degree similar to those associated with any large‑scale facility or transportation system.” AECL follows that statement with the concession that “the potential for radiological effects on human
health and the natural environment might be of concern to people living near a disposal facility and along the transportation route, despite the low radiological risk estimated by the safety assessment” (EIS Summary, 39, emphasis added).

AECL’s reluctance to admit that the public could well be uniquely terrified by the prospect of living near a high-level nuclear waste repository sharply contrasts with its discussion in Social Aspects of the uniqueness of nuclear waste. There it acknowledges that “Canadians feel personally at risk, no matter where they live, from nuclear waste more than from any other health hazard” (125).  “[M]any members of the public,” it explains, “view nuclear waste as uniquely hazardous and difficult to handle. The risk associated with it is seen by some people to be absolute rather than relative, and some hold the view that unknown catastrophic events are somehow inevitable” (117). AECL’s identification of both dread and catastrophic potential as affecting the public’s evaluation – and, presumably, acceptance -of risks (xiii) further calls into question the direct applicability of other siting experiences to the siting of a high-level nuclear waste repository.

AECL’s discussion of Canada’s experience with voluntary siting processes omits several important examples. Although instructed to include in its analysis “justification of the selection of the case studies under consideration” (Guidelines, 47‑48), AECL fails to explain its reasons for studying certain cases and ignoring others. It offers no reason, for example, for omitting Quebec’s experience with siting a hazardous waste facility in the early 1980s.

Nor does AECL, in either the EIS or Social Aspects, explain its omission of the Meadow Lake Tribal Council’s commissioning of a study of the feasibility of hosting a high-level
nuclear waste repository in northern Saskatchewan – a story that made the news as early as April 1994. In fact, “aboriginal considerations” fill only two pages in Social
Aspects
‘s chapter on site selection, under the heading of “framework for public involvement in siting a nuclear fuel waste disposal facility” (178‑79). Since experience in both Canada and the United States suggests an unusual degree of aboriginal interest in the
hosting of nuclear facilities, AECL’s coverage is inadequate.

AECL also fails to examine voluntary siting processes in a different field: municipal waste disposal. Audrey Armour (1990) describes the Peel Region’s standard (i.e., non-voluntary) process for siting a municipal landfill in a “state-of-the-art” review of facility siting processes commissioned by AECL. The inclusion suggests that municipal landfills are relevant to high-level nuclear waste repositories. If such experience is indeed relevant, AECL has erred in neglecting to review voluntary siting processes for landfills, such as that
utilized by Browning-Ferris Industries in Manitoba.

International
Experience

AECL’s treatment of international siting
experience is even less satisfactory than its treatment of Canadian experience.
Appendix C of the EIS, “Nuclear Fuel
Waste Management in Countries Other Than Canada,” barely touches on siting
processes. And the discussion of siting in Social
Aspects
addresses just one example: the proposed Monitored Retrievable
Storage (MRS) facility in the United States. As
the MRS siting process represents a rare attempt to voluntarily site a
high-level nuclear waste facility, and shares a number of the characteristics
of the siting process proposed by AECL, it merits careful review.
Unfortunately, AECL, devoting just one paragraph to the MRS, fails to produce a
useful analysis. It appears that it has looked at only one source more recent
than 1992. It specifically mentions only the interest expressed by the
Mescalero Apache (165), who are  now
pursuing a storage facility outside of the MRS process. And its discussion
shares the failures listed above, notably a lack of detail on the process, its
reception by potential hosts and the broader community, and its applicability
to the siting of a permanent repository.

Nowhere does AECL discuss unsuccessful international experience with the voluntary siting of
disposal facilities for low-level radioactive waste, hazardous waste, or
municipal waste. Information on the difficulties experienced by, respectively,
Nebraska, Minnesota, or New York would provide insight into how and why
voluntary siting processes may fail and, conversely, what changes may be
required in order for them to succeed.

 

 

Alternative
Methods or Processes

The Environmental Assessment Review Panel
requested more from AECL than a review of case studies: “In order to achieve a
clearer understanding of the concept, in particular the socio‑economic aspects,
the proponent is encouraged to make use of appropriate analogs, natural and
otherwise, appropriate case studies of actual projects, and scenario analyses”
(Guidelines, 2). “Scenario analyses”
should include alternative methods or processes suggested in the siting
literature or tested in related fields. AECL reviews no such scenarios.

One method, recommended by a number of
academics and industry representatives but ignored by AECL, entails the use of
auctions to site controversial facilities. Herbert Inhaber (1991, 1992), for
example, recommends a reverse Dutch auction. Howard Kunreuther and Paul
Kleindorfer (1986), in contrast, suggest a sealed bid auction.

Another method, resting on strong property
rights, would enable individuals affected by nuisances to obtain injunctions
against noxious facilities, in effect giving them veto power over such
facilities. But AECL barely mentions property rights when discussing siting.
While it acknowledges in Social Aspects
that risk includes “the possible loss or diminution of some valued aspect of .
. . the perceived rights of surface land ownership” (115), it fails to discuss
the nature of such rights (perceived or real) and their implications for
siting.


 

AECL’s
Proposed Approach

 

AECL proposes a siting process based on the
principle of voluntarism: “A community would have the right to determine
whether or not it was willing to be a host community” (EIS Summary, 23). AECL’s rationale for recommending a voluntary
process is pragmatic: a voluntary process is more likely to succeed than an involuntary one. As the EIS suggests, “if people near a proposed
site feel they were not . . . offered the right to refuse the facility, then
they would likely oppose the project regardless of the validity of the
arguments for the suitability of the site . . . [P]eople consider the risk of
an activity to be lower or more acceptable if . . . they engage in or accept
the activity voluntarily” (65).

 

AECL remains vague about the details of a
voluntary siting process: “For each community that was willing to be considered
as a potential host for a disposal facility, the approach would be to make the
process fit the community” (EIS Summary,
25). Such flexibility, while potentially admirable in practice, contributes
little information about how the proposed siting process might work. Nor does
it distinguish between the flexibility to do good or to work harm. The Panel
cannot be expected to give AECL free rein in the name of flexibility. AECL should
describe realistic scenarios and recommend minimum standards without
compromising its proposed flexibility.

A number of issues concerning voluntarism
require further discussion or clarification. Specifying who could volunteer for
a facility – defining a host community and distinguishing it from an affected
community – should be a priority. While AECL notes the importance of defining
the boundary of a potential host community (EIS, 66;
Social Aspects
, 107), it offers little guidance. In fact, it is often
intentionally unclear on the issue: “What constitutes the boundaries of a
potential host community would need to be clearly defined during the siting
stage. The boundary could be based, for example, on municipal boundaries. A
potential host community could include more than one administrative unit, such
as several local municipalities or a regional municipality” (Social Aspects, 183).

Even AECL’s efforts to be more precise fail:
“In an area over which a community had jurisdiction, a disposal site would be
sought only with the support of the community. On crown land, a disposal site
would be sought only with the consent of the government that had jurisdiction.
The implementing organization would encourage the government to identify a
potential host community for a disposal facility on crown land in order to
ensure public involvement in siting decisions pertaining to that potential
site. Since a community would have the power to veto the selection of a site within its jurisdiction, this would
ensure that local concerns were addressed and that local criteria for
acceptance were met” (Social Aspects,
174, emphasis added; echoed in EIS
Summary
, 23). It remains unclear if, under AECL’s proposal, a nearby
community would actually have veto power over a facility on Crown land, since
that land would not be within its jurisdiction. Similar questions remain about
the rights of people living in unincorporated areas or living just outside a
potential host community’s boundary.

Another difficulty regarding the definition of
affected communities concerns native lands. While AECL maintains that a “siting
process that adheres to the principle of voluntarism would mean that a disposal
facility would not be imposed on an aboriginal community” (Social Aspects, 179), it offers no specific assurances regarding an
aboriginal community’s traditional lands.

Despite its instructions to include
“definitions of . . . acceptability” and “identification of a variety of
community decision‑making structures, and processes for the incorporation of
these decision‑making structures into site selection decisions” (Guidelines, 9, 35), AECL provides little
guidance on the subject. It notes a number of possible decision-making methods:
“How a community would decide whether or not to participate in siting and
whether and under what conditions it would be prepared to remain in the process
would need to be determined by the community itself. The means by which a
community would express its decision could include resolution by local
municipal councils, recommendations from a citizens’ committee appointed by the
community, or a referendum organized by the community” (Social Aspects, 183; echoed in
EIS
, 67). AECL fails to analyse the merits of these various methods. It
ignores the literature concerning conflicts between communities’ interests and
the interests of their elected politicians. It suggests no method of ensuring
that municipal councils don’t grant themselves powers that the citizens would
rather hold. And it proposes no minimum requirements – for example, support
from a three-quarters majority in a referendum – that potential host
communities must meet. Finally, AECL fails to note that the Canadian process
for siting a low-level radioactive waste disposal facility includes all three of the decision-making
hurdles mentioned in the EIS: both
town councils and special citizens’ committees have had impressive
decision-making authority, and the citizens must approve the proposed
arrangement in a referendum. AECL must explain why the process for nuclear fuel
waste should have fewer safeguards than that for less hazardous low-level
waste.

While allowing some details of the process to
remain flexible, AECL should recommend principles to ensure that the
decision-making process protects citizens against overly-ambitious municipal
governments, protects minorities against majorities, and ensures that an accepted facility is actually an acceptable facility.

Lastly, AECL remains vague about the powers
held by non-host communities affected by the proposed waste repository:
“Potentially affected communities that are not potential host communities would
establish with the implementing organization methods for consultation that
would provide opportunities for their views to be taken into account in
decision making” (Social Aspects, 171‑72;
echoed in EIS Summary, 26). Given the
frequent conflicts between host communities and their neighbours in other
voluntary siting processes, more detail is required to ensure the adequate
protection of those outside of the host’s boundaries.

 


Transportation
Route Selection Methods, Processes, and Experiences

AECL’s
Proposed Approach

 

In contrast to its approach to siting a
disposal facility, AECL does not propose using community acceptance as a
criterion for selecting transportation routes to a disposal facility. While it
notes that during the scoping meetings some suggested “that public approval
should be required in order for nuclear waste to be transported through or near
their community,” and that a 1987 survey showed that, outside of northern
Ontario, “obtaining an endorsement from local municipal officials would make
transportation more acceptable for 53% of Ontarians” (Social Aspects, 103, 104), it excludes voluntarism from its list of
principles governing transportation issues. AECL makes no attempt to justify
its choice of public involvement rather than public control.

AECL’s proposed criteria for public involvement
remain vague. Although required to discuss “public involvement with decisions
concerning the choices of transport modes, routes, and methods of operation” (Guidelines, 40), AECL proposes no
specific methods of involving the affected public in transportation choices.
Instead, it merely states, circularly, “The organization(s) would consult with
communities along the potential transportation routes to establish a procedure
to seek and address their views” (EIS,
161). Nor does it attempt to ensure that public input is meaningful or that,
with route selection occurring after site identification (EIS, 161), certain routes do not become inevitable, making
consultation a sham.

 

Finding
a Volunteer Host: The Components of a Successful Voluntary Siting Process

 

Individual
or Community Control

AECL identifies control as a key component of a
successful voluntary siting process. It explains in the EIS, “Research into people’s perception of risk . . . suggests that
people consider the risk of an activity to be lower or more acceptable if . . .
they believe they have some ability to control the risk” (65). Further detail
appears in Social Aspects:
“Experience in the United
States . .
. indicates that more control over the operation of the facility by local
people was the most important factor in obtaining the community’s acceptance. .
. . In 1988, a survey commissioned by AECL asked Canadians what conditions
would make siting a nuclear waste disposal facility near their community more
acceptable to them, and it was found that people considered community control
in siting decisions and independent monitoring of the facility (another way of
facilitating control) by far the most important” (129‑30).

AECL proposes a process of undefined community
control: “Each potential host community, and later the host community, would
share in decision making as negotiated” (EIS
Summary
, 23). Leaving details to be negotiated at a later date should not
excuse AECL from supplying sufficient detail to enable the Panel to envision
specific realistic processes, their effectiveness, their limits, and their
implications.

AECL fails to examine the importance, in
previous or current voluntary siting processes, of empowering prospective host
communities to choose their preferred disposal method. Likewise, it ignores the
potential role of this element of community control in its proposed method of
siting a high-level nuclear waste facility; it simply assumes that the siting
process will involve a single deep geological repository. Although required by
the Panel to discuss “the implication of a number of separate or dispersed
disposal facilities” (Guidelines,
12), nowhere does AECL examine whether multiple long-term disposal sites might
be more easily sited than one repository. Nor, despite the requirement to
examine long-term above ground storage  (Guidelines, 12), does it analyse whether
monitored retrievable storage (be it at a centralized facility or at power
generation sites) would be more sitable still.

 

Compensation
and Incentives

In the EIS,
AECL acknowledges compensation’s key role in encouraging people to accept a
potential risky facility: “Research into people’s perception of risk . . .
suggests that people consider the risk of an activity to be lower or more
acceptable if . . . they benefit from the activity” (65). In Social Aspects it notes, “Researchers
suggest that the adverse perception of risk might be reduced more easily by
increasing the salience of associated benefits than attempting to convince the
public that the risks are small” (131).

AECL pays surprisingly little attention to financial compensation and incentives,
either when analysing experience elsewhere or when proposing a siting process
for a Canadian high-level nuclear waste facility. While it describes measures –
job creation and the provision of various amenities – used to “manage” the
socio-economic impacts of other projects (EIS,
198), its analysis of other siting experiences contains virtually nothing on
the role of financial incentives. In some cases, such as the siting process for
an MRS facility in the United States (where communities were offered $100,000
for merely expressing a non-binding initial interest in considering a facility,
and can expect to receive $10 million annually for hosting an operating
facility), AECL’s oversight is inexcusable.

AECL also fails to examine alternative
compensation methods suggested in the literature regarding both siting and
liability. An analysis of the potential role of auctions, community buy-outs,
and the payment of damages for nuisances (including perceived risks) under
common law property rights regimes would assist the Panel considerably in
making an informed decision.

As with other issues, AECL’s proposal for
compensation is unacceptably vague. Benefits, it sensibly suggests, “would be
negotiated with the host community” (Social
Aspects
, 176). Although it implies that benefits might be significant,
leaving a community “better off than it would have been without the facility” (Social Aspects, 203), nowhere does it
suggest their possible magnitude. Here, again, an examination of experience
elsewhere would be useful. For example, the United States
proposes to make annual payments of $20 million to benefit the community that
ultimately hosts a permanent high-level nuclear waste disposal facility. A
successful voluntary process could well require greater incentives. Such
incentive levels could have a considerable impact on the budget and should be
discussed fully and frankly.

AECL expresses concern that offering financial
incentives to host a facility “could be perceived as bribery. . . . Extreme
care should be exercised in negotiating trade‑offs so as to avoid the
perception that there is an attempt to “bribe” local residents to accept
project risks” (Social Aspects, 112,
135‑36). It does not, however, present opposing views, such as Herbert
Inhaber’s (1991, 1992) suggestion that such a concern is unfounded since
incentives share none of bribery’s three essential characteristics; unlike
bribes, incentives are not used in pursuit of an illegal act, they are not
offered under the table, and they are not specifically targeted.

AECL’s treatment of compensation for the
adverse impact of transportation is also unsatisfactory. It fails to review
others’ experience, such as the Ontario Waste Management Corporation’s
consideration of compensating those along routes to its proposed toxic waste facility
or Browning-Ferris Industries’ policy for compensating those along roads
leading to the Ridge municipal landfill near Blenheim, Ontario.
Furthermore, it is unclear whether – and how
– AECL proposes to compensate people along its transportation routes.
While it suggests “managing effects” (Social
Aspects
, 191), it makes no mention of monetary compensation.

Waste
Reduction

AECL makes it very clear that it does not
intend to discuss the role of waste reduction in the siting of controversial
facilities: the “terms of reference excluded consideration of reduction of the
waste at source by reducing the generation of nuclear energy. . . . The
question of how widely nuclear power is utilized, or how provinces choose to
generate electricity, is not something that can be answered by the waste
disposal concept. The concept is designed only to provide a means for the safe
disposal of the waste that has already been produced, continues to be produced,
and may be produced in the future” (Social
Aspects
, 64).

Although AECL acknowledges that other aspects
of the nuclear fuel cycle may influence the public’s perception of the disposal
concept (Social Aspects, ii), it
fails to note that some, such as Barry Rabe (1991, 1994), consider waste
reduction to be a critical element in successful voluntary siting process. If
reducing waste at the source is essential to ensuring a successful siting
effort, the option must be included in a comprehensive discussion of the
process. AECL should, at a minimum, examine the role of waste reduction in
other successful voluntary siting processes and comment on how its own failure
to consider waste reduction may affect the replicability of these processes.


Trusted
Institutions

AECL discusses the importance of trusted
institutions in the voluntary siting of controversial facilities. Obviously,
people are more likely to accept facilities perceived to be less risky. And,
AECL explains, “Research into people’s perception of risk . . . suggests that
people consider the risk of an activity to be lower or more acceptable if . . .
they trust the organization responsible for the activity” (EIS, 65).

Furthermore, AECL notes “a lack of confidence
in government and industry” (Social
Aspects
, 61; also see 62, 64) and that “building trust is much more
difficult than losing it” (Social Aspects,
132). It does not, however, pursue the matter or its implications for the
proposed siting process. It fails to examine the public perceptions of the
institutions involved in previous successful and unsuccessful siting
experiences, how they differed from public perceptions of Canada’s nuclear
institutions (including AECL itself), and how the differences might affect the
applicability of the experiences in one field to that in another. Of course,
these considerations should also influence Canada’s
choice of “implementing organizations” for nuclear fuel waste management and
disposal.

The
Likelihood of Success: Predicting Site Availability

Not surprisingly, the Panel instructed AECL to
comment on the likelihood that its proposed siting process would actually
result in the selection of a site. The discussion of options in the site
selection process, it said,  should
include “potential availability of sites in Canada” (Guidelines, 35). It should also include
“an analysis of the uncertainties involved in the identification and
characterization of candidate sites . . . and the consequences of these
uncertainties” (Guidelines, 34).

AECL never clearly addresses the issue of
potential site availability. Its comments on the subject seem contradictory. On
one hand, it notes the historic unpopularity of the prospect of hosting a
disposal facility: “A 1984 survey showed that 14% of Ontario
residents (up from 8% in 1983) and 22% of northern Ontarians would favour a
disposal facility near their community, provided the disposal method was found
to be safe” (Social Aspects, 35).

The unpopularity of nuclear waste disposal
facilities does not, on the other hand, prevent AECL from assuming that its
proposed siting process will be successful: “The application of these
principles of safety and environmental protection, voluntarism, shared decision‑making,
openness, and fairness could result in a site for a nuclear fuel waste disposal
facility that is both technically and socially acceptable” (Social Aspects, 195). A process based on
these principles, it adds more confidently, “would be likely to succeed” (Social Aspects, 203). It even suggests
that the process may be too
successful – that it may produce multiple candidate sites (Social Aspects, 185, 188).

AECL does not, however, address the opposite
possibility. It completely ignores the likelihood or consequences of failure.
It suggests no course of action in the event that no community volunteers to
host a site. It hints at one option: “some people feel that some caution is
required in granting host communities the power to veto siting, arguing that if
all potential host communities voted against a site, the facility would have to
be imposed on some community, which may not be the safest or fairest method” (Social Aspects, 108). It says nothing
about the option of increasing the financial incentives offered to potential
host communities. And it doesn’t explore the possibility of exporting waste to
a volunteer community south of the border. That option it dismisses without any
discussion of the provisions of the Free Trade Agreement or examination of
whether Canada’s waste would be welcome in an American MRS facility: “Although
there is extensive co‑operation among nations producing electricity from
nuclear energy to exchange information on nuclear waste disposal, Canada cannot
expect to dispose of its nuclear fuel waste in another country” (EIS Summary, 6).

Ethical
Considerations

Individual
Rights v. Community Rights

In responding to the Panel’s request that its
discussion of options in the site selection process include “a framework of
ethical considerations for site selection” (Guidelines,
35), AECL examines several philosophical perspectives on the nature and extent
of individual rights. AECL’s comments on the issue can be found primarily in Social Aspects. There it presents the
debate as one between utilitarianism, egalitarianism, and libertarianism (xiv‑xv).
AECL admits that “there does not appear to be agreement on which ethical
framework is best suited to siting a nuclear fuel waste disposal facility”
(172). In fact, it suggests that competing ethical frameworks may be
irreconcilable, noting “a clash between at least two different value systems
(societal rights and individual rights), neither of which accepts the premises
upon which the other operates” (143). Regardless, AECL firmly rejects
libertarianism in favour of  a modified
utilitarianism.

AECL’s use of the libertarian label is
confusing: it could apply to all those who advocate individual liberty, or it
could apply only to those who embrace a particular political philosophy or
party. AECL limits its discussion of individual rights to contemporary
libertarian philosophers, giving no indication of the breadth or depth of philosophical
interest in the issue. It doesn’t, for example, even mention liberalism, whose
founder, the seventeenth-century English philosopher John Locke, drew on a
long-established legal tradition of respect for individual rights.

AECL fails to explain its dismissal of a siting
approach based on respect for individual rights. Although it suggests that a
rights-based approach could not account for the needs of future generations
(144), it neither supports this conclusion nor reconciles it with the inherent
respect for others’ rights
traditionally found in rights-based approaches. Nor does it explore siting
processes that respect individual rights, or give any indication of whether
such processes could fruitfully be applied to the siting of nuclear waste facilities.
Nowhere does it examine the possibility that a siting approach based on
individual rights might be more palatable and therefore more likely to succeed.

Posted in Nuclear Power, Nuclear Safety, Power Generation in Ontario | Leave a comment

China human rights fact sheet

March 1, 1995

Human rights violations in the People’s Republic of China (PRC) remain systematic and widespread. The Chinese government continues to suppress dissenting opinions and maintains political control over the legal system, resulting in an arbitrary and sometimes abusive judicial regime. The lack of accountability of the government and the Chinese Communist Party (CCP) means that abuses by officials often go unchecked. This fact sheet identifies the most common types of abuses, including arbitrary detention, torture and ill-treatment of prisoners, severe restrictions on freedom of expression and association and violations specific to women.

1. Controls on Expressions and Associations
2. Torture and Ill-Treatment of Prisoners
3. Lackof Judicial Independance and Due Process
4. Death Penalty
5. Tibet
6. Women
7. Resource List

Controls on Expressions and Associations

The PRC detains individuals for exercising their rights to freedom of association, freedom of religion and freedom of expression, including the right to impart and receive information, and other basic rights. The total number of persons in China detained without charge, sentenced administratively to reeducation or reform camps, or held by other means, solely for peacefully exercising these rights is unknown. However, that figure is estimated to be far in excess of the approximately 3,000 individuals that the PRC currently acknowledges imprisoning for “counter-revolutionary” or political crimes. Many of those detained are held under circumstances that constitute clear violations of due process. Such violations include lengthy detention without charge or trial and depriving defendants of access to legal counsel.

Restrictions on Independent Organizing: Although the Chinese Constitution guarantees freedom of association and assembly, national regulations severely limit association and give the authorities absolute discretion to deny applications for public gatherings or demonstrations. In practice, only organizations that are approved by the authorities are permitted to exist, and any organization that is not registered is considered “illegal.” In this manner, independent advocacy on labor, human rights, environmental, development or political issues is effectively outlawed. The CCP-controlled labor union and women and youth organizations are the only permitted avenues for organizing in these areas. Unofficial labor groups have been a particular target for suppression. In December 1994, the Beijing Intermediate People’s Court imposed severe sentences of between 15 and 20 years’ imprisonment on three prisoners of conscience, convicted of “leading counter-revolutionary organizations.” The sentences, based on the defendants’ alleged formation of non-government-approved organizations, were the harshest delivered to political dissidents in recent years.

On 4 June, 1994, the fifth anniversary of the Tiananmen Square crackdown, China promulgated new implementing regulations for the 1993 State Security Law. The repressive new measures threaten the few legal means of operation left to democracy and human rights activists, independent religious adherents and other independent voices, by criminalizing: contact with and funding from foreign organizations defined as “hostile”; the publication or dissemination of “written or verbal speeches” or “using religion” to carry out activities “which endanger state security;” and the creation of “national disputes.” The regulations also give state security officials virtually unlimited power to detain individuals, confiscate property and determine what constitutes a “hostile” organization.

Restrictions on Free Speech and the Media: Although the PRC’s 1982 Constitution guarantees citizens freedom of expression and of the press, its preamble mandates adherence to “four basic principles”– the CCP’s leadership, socialism, dictatorship of the proletariat and Marxism-Leninism Mao Zedong Thought. In practice, the PRC employs a wide range of controls that violate the right to free expression and interfere with independent media. These include severe restrictions on contact between foreign news media and Chinese viewed by the government as critical of the regime. An extensive censorship bureaucracy licenses all media outlets and publishing houses and must approve all books before publication.

The primary mechanism of control over the news media and publishing is self-censorship. Chinese journalists, editors and publishers are expected to make the information they disseminate conform to CCP Propaganda Department guidelines. For example, news coverage is required to be “80% positive and 20% negative.” Sanctions for infringements range from official criticism of the coverage to the demotion, firing or imprisonment of the individuals responsible and the closing or banning of the offending publication.

Dissidents who make their opinions known to the foreign media are often subject to threats, detention, harassment, intensive surveillance or imprisonment. During 1994, at least 20 Chinese writers, journalists, editors and publishers were persecuted in connection with their work. Also during the year, foreign correspondents from the British Broadcasting Corporation, Newsweek, Reuters, United Press International, The Wall Street Journal, The Washington Post, U.S. television networks (NBC, CBS) and other foreign media outfits were detained and interrogated by PRC police regarding their work as journalists, including the interviewing of Chinese dissidents and students and filming in Tiananmen Square. Police also banned broadcasts of CNN in Beijing hotels for five days surrounding the fifth anniversary of the 4 June 1989 military crackdown on democracy demonstrators.

Suppression of Religious Freedom: The PRC prohibits all religious activities outside establishments registered under the official branches of four state-recognized religions (Buddhism, Taoism, Christianity and Islam), established by the PRC government during the 1950s, through which Chinese and Tibetan religious adherents are required to practice their faith. Individuals conducting or participating in public worship without government authorization, including Catholics loyal to the Vatican and Protestants who worship in house churches, have been arrested, detained, placed under close police surveillance or internal exile, fined and, in some cases, tortured. PRC police have also confiscated religious literature and church property, and human rights organizations have documented the closure of hundreds of house churches since 1989.

China’s laws restricting contact with foreign coreligionists, prohibiting parents from exposing children under the age of 18 to religion, and outlawing nongovernment-controlled churches violate the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In January 1994, the PRC government increased restrictions on religious practice by foreigners in China through State Council Decrees 144 and 145. Decree 144 states that foreign nationals may bring in religious materials only “for their own use,” and bans materials deemed “harmful to the public interest.” The decree also prohibits evangelizing, establishing religious schools and other missionary activities. Decree 145 gives authorities substantial leeway in restricting religious activities deemed harmful to “national unity” or “social stability,” and limits the practice of religion by foreign nationals to state-sanctioned places of worship.

Torture and Ill-Treatment of Prisoners

Torture of detainees is endemic in Chinese detention centers and prisons. Although China became party to the UN Convention Against Torture in 1988, the government has not taken effective measures to diminish the risk of prisoners being tortured or ill-treated. Despite strong evidence of torture in several cases of death in custody, state prosecutors have refused to release autopsy results to families or to initiate investigations. In many detention centers, beatings, inadequate food and poor hygiene appear to be a routine part of the process of eliciting confessions and compliance from detainees. Such treatment is applied to ordinary prisoners as well as political detainees.

According to prisoner reports, methods commonly used by guards include: beatings using electric batons; rubber truncheons on hands and feet; long periods in handcuffs and/or leg irons, often tightened so as to cause pain; restriction of food to starvation levels; and long periods in solitary confinement. Furthermore, corrupt authorities at detention centers, prisons and labor camps have extorted large sums of money from families of detainees for the state’s provision of “daily supplies” and “medical expenses.”

Despite continuing efforts by the UN Special Rapporteur on Torture, the International Committee of the Red Cross and other humanitarian organizations, PRC officials have not agreed to allow open and unannounced visits to prisoners. PRC authorities acknowledge that there are some 1.2 million prisoners and detainees in China.

Lack of Judicial Independance and Due Process

Few legal safeguards exist in China to ensure fair trials, and the judicial system is controlled at every level by CCP political-legal committees that may determine the outcome of cases before the court hears evidence presented at trial. Legal scholars within China have called for an end to this widespread practice of “verdict first, trial second.” With the political-legal committees exercising extensive control, detainees are highly unlikely to receive fair, impartial hearings that are free from official manipulation.

China’s Criminal Procedure Law provides for detainees to have access to lawyers no later than one week before trial. However, even this minimal protection is not always observed. Prisoners typically cannot call witnesses for the defense or question witnesses against them. In politically sensitive cases, lawyers have been instructed that they may enter a not-guilty plea only if they get approval from the judicial administration. Even in death-penalty cases, appeals are usually cursory, and defendants may have only several days to file an appeal.

Arbitrary Detention: In addition to judicial convictions, PRC authorities consistently use administrative procedures to detain hundreds of thousands of Chinese and Tibetans each year.

Individuals sentenced administratively by police are not charged or brought before a judge, thereby denying them access to a lawyer and the right to defend themselves. The majority of these individuals are ordinary people, but democracy and human rights activists, independent religious adherents and worker-rights advocates are also frequently detained in this way.

The most common forms of administrative detention are:
1) “reeducation through labor,” under which police, without trial, can send individuals to labor camps for up to four years; and
2) “shelter and investigation,” under which police can detain people without charge or trial for up to three months, a time limit that is routinely ignored.

The UN Working Group on Arbitrary Detention has determined that the practice of “reeducation through labor” is “inherently arbitrary” when intended for “political and cultural rehabilitation.” According to PRC government sources, 100,000 people are sent to “reeducation through labor” camps and one million are “sheltered” each year.

Conditional Releases with Continued Deprivation of Rights: The PRC infrequently has released political prisoners of conscience before the completion of their sentences, predominantly as a result of international pressure. However, those released have been forced into exile, subjected to continuing police surveillance and harassment or, in some cases, detained again for alleged violations of the restrictive conditions of parole or new “crimes” of free expression. Many former prisoners of conscience are not granted the identity cards necessary to gain employment or travel without express official permission.

Death Penalty

During the past two years, there has been a dramatic increase in the use of the death penalty in China. This growth in the number of death sentences and executions is partly due to anti-crime campaigns launched by the government. Defendants can be put to death for criminal offenses, including nonviolent property crimes such as theft, embezzlement and forgery. In 1993, 77% of all executions worldwide were carried out in China. On a single day, 9 January 1993, 356 death sentences were handed down by Chinese courts; 62 executions took place that day. During that year alone, 2,564 people were sentenced to death. At least 1,419 of them are known to have been executed. The total number of death sentences and executions is believed to be higher. Defendants do not always have access to lawyers, and when a lawyer is available, he or she usually has no more than one or two days to prepare a defense. Death sentences have been imposed based on forced confessions and are often decided in advance of the trial by “adjudication committees,” thereby circumventing defendants’ rights to a fair and public hearing and presumption of innocence.

Tibet

In Tibet, hundreds of Tibetans have been incarcerated for peacefully expressing their political and religious beliefs. Conditions in prisons are reported to be dismal, with numerous accounts of torture and ill-treatment. In particular, PRC law enforcement officials have perpetrated violent acts against Tibetan women in detention centers and prisons. Buddhist nuns and lay women have been subject to torture or violent, degrading and inhuman treatment, including assault, rape and sexual abuse. In June 1994, one Tibetan nun died while in custody, reportedly as a result of a beating by guards. PRC authorities also have severely restricted religious practice; out of the 6,000 Buddhist monasteries that were destroyed by the PRC since its 1949 invasion of Tibet, only a few hundred have been rebuilt.

PRC policies, including population transfers of hundreds of thousands of Chinese into Tibet, threaten to make Tibetans a minority in their own land and to destroy Tibetans’ distinct national, religious and cultural identity.

Women

The Chinese Constitution and other laws provide equal rights for men and women in all spheres of life, including ownership of property, inheritance and educational opportunities. Equality between the sexes has been a part of the CCP’s agenda from its early days, and women’s rights are perceived to be in a separate category from human rights. Therefore, women’s organizations in China, even though they remain under CCP control, are able to advocate effectively on some issues involving abuses of women’s human rights. However, when women’s rights or interests conflict with Party or government policy, the latter takes precedence. This means, for example, that abuses related to the family planning policy are not reported in the media or discussed publicly. Information about other issues, such as the extent of domestic violence, trafficking in women or abuses directed at lesbians, is effectively prevented by the CCP’s injunction that most news should be positive. Thus, the controls on freedom of expression and association, which so affect democracy and human rights activists, have a strong impact on women’s human rights as well.

Violence Against Women: According to some researchers, spousal abuse is far too common and, in many parts of the country, still socially acceptable. However, comprehensive statistics about the extent of domestic violence are not available or have not been made public. The official All-China Women’s Federation (ACWF) has been studying this problem and seeking solutions.

Few battered women have the opportunity to escape abuse, because shelters and other resources are not available. Women are under considerable social pressure to keep families together regardless of the circumstances. Legal action is not taken against batterers unless the victim initiates it, and if she withdraws her testimony, the proceedings are ended.

Abduction and Trafficking of Women: Trafficking and sale of women as brides or into prostitution is a serious problem in certain parts of China, and Chinese women have been sold into brothels in Southeast Asia. The PRC government has enacted various laws to combat the sale of women, but the statistics released by the government do not reliably indicate the scale of the problem. PRC officials stated that there were 15,000 cases of kidnapping and trafficking in women and children in 1993. Yet according to one estimate, 10,000 women were abducted and sold in 1992 in Sichuan Province alone.

Until recently, the authorities have not prosecuted men who purchase women as wives; thus, the trade has continued unabated. Official action to rescue victims of trafficking is generally initiated only if a complaint is made by the woman or her family. Local officials often turn a blind eye, even formally registering marriages into which the woman has been sold.

Discrimination in Employment and Education: The PRC ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1980 and enacted the Law on the Protection of Women’s Rights and Interests in 1992. However, open discrimination against women in China has continued to grow during the period of reform of the last 15 years.

According to PRC government surveys, women’s salaries have been found to average 77% of men’s, and most women employed in industry work in low-skill and low-paying jobs. An estimated 70 to 80% of workers laid off as a result of downsizing in factories have been women, and, although women make up 38% of the work force, they are 60% of the unemployed. At job fairs, employers openly advertise positions for men only, and university campus recruiters often state that they will not hire women. Employers justify such discrimination by saying that they cannot afford the benefits they are required to provide for pregnant women, nursing mothers and infants.

The proportion of women to men declines at each educational tier, with women comprising some 25% of undergraduates in universities. Institutions of higher education that have a large proportion of female applicants, such as foreign language institutes, have been known to require higher entrance exam grades from women.

Although China has a law mandating compulsory primary education, increasing numbers of rural girls are not being sent to school. Rural parents often do not want to “waste” money on school fees for girls who will “belong” to another family when they marry. According to official statistics, about 70% of illiterates in China are female.

Violations Resulting from Family Planning Policy: The Chinese Constitution mandates the duty of couples to practice family planning. Since 1979, the central government has attempted to implement a family planning policy in China and Tibet that the government states is “intended to control population quantity and improve its quality.” Central to this initiative is the “one child per couple” policy. Central authorities have verbally condemned the use of physical force in implementing the one-child policy; however, its implementation is left to local laws and regulations.

To enforce compliance, local authorities employ incentives such as medical, educational and housing benefits, and punishments including fines, confiscation of property, salary cuts or even dismissal. Officials also may refuse to issue residence cards to “out of plan” children, thereby denying them education and other state benefits.

Methods employed to ensure compliance have also included the forced use of contraceptives, primarily the I.U.D., and forced abortion for pregnant women who already have one child. In Zheijang Province, for example, the family planning ordinance states that “fertile couples must use reliable birth control according to the provisions. In case of pregnancies in default of the plan, measures must be taken to terminate them.” As an official “minority”, Tibetans are legally allowed to have more than one child. However, there have been reports of forced abortions and sterilizations of Tibetan women who have had only one child. There are also reports of widespread sterilization of certain categories of women, including those suffering from mental illness, retardation and communicable or hereditary diseases. Under previous local regulations superseded by the 1994 Maternal and Infant Health Care Law, such sterilization was mandatory in certain provinces. Under the new law, certain categories of people still may be prevented from bearing children.

Violations Against Female Children: The one-child policy, in conjunction with the traditional preference for male children, has led to a resurgence of practices like female infanticide, concealment of female births and abandonment of female infants. Female children whose births are not registered do not have any legal existence and therefore may have difficulty going to school or receiving medical care or other state services. The overwhelming majority of children in orphanages are female and/or mentally or physically handicapped.

The one-child policy has also contributed to the practice of prenatal sex identification resulting in the abortion of female fetuses. Although the government has outlawed the use of ultrasound machines for this purpose, physicians continue the practice, especially in rural areas. Thus, while the average worldwide ratio of male to female newborns is 105/100, Chinese government statistics show that the ratio in the PRC is 114/100 and may be higher in some areas.

This fact sheet was prepared by the Robert F. Kennedy Memorial Center for Human Rights. It is based on information provided by Amnesty International-USA, the Committee to Protect Journalists, the Francois-Xavier Bagnoud Center for Health and Human Rights, Human Rights in China, the International Campaign for Tibet, the Puebla Institute and the RFK Memorial Center for Human Rights. The accompanying resource list provides contact information for these organizations.

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Decision on access to documents

Indexed as: Energy Probe v. Canada (Attorney General)
DRS 93-04397, Action No. 46878/90Q
May 1, 1992

Ontario Court of Justice – General Division
Toronto, Ontario
Jarvis J.

Heard: February 5 and March 24, 1992
Judgment: May 1, 1992
(7 pp.)

 

Practice — Discovery — Production of documents — Government documents — Cabinet documents — Defences — Crown privilege — Public interest privilege — Statutory limits — Division of powers.

Application for production of federal cabinet and interprovincial cabinet documents in a challenge of the Nuclear Liability Act.

HELD: Application dismissed. The tenuous relevance of the documents was insufficient to justify disclosure. To routinely order production of such documents because it could do no harm or merely because the documents were vaguely relevant would potentially do serious harm to the future of cabinet and intergovernmental discussions and would fly in the face of the test in section 37 of the Canada Evidence Act. There was no jurisdiction to order production of a Privy Council document, as section 39 provided that this was entirely within the Clerk’s jurisdiction.

STATUTES, REGULATIONS AND RULES CITED:

Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37(2), 39. Nuclear Liability Act, R.S.C. 1985, c. N-28.

 

Theresa McClenaghan, for the Plaintiff.
David Sgayias, Q.C., for the Defendant.
Neil Finkelstein and Jeff Galway, for the Intervenors.

——————————————————————————–

JARVIS J.:— This application initially proceeded before me on February 5, 1992. Involved was the production of Federal Cabinet and Inter-Provincial Cabinet documents regarding the question of nuclear energy in Canada. The action involves a challenge to the Nuclear Liability Act R.S.C. 1985, c. N-28, which came into force in 1970. Energy Probe alleges that the Act is ultra vires the legislative jurisdiction of the Federal Government and violates several of the protections of the Canadian Charter of Rights and Freedoms.

Energy Probe took the position that the documents are relevant to the issues in this action and should be produced. The Attorney General for Canada responded that the documents, while marginally relevant, ought not to be produced as a matter of Crown privilege. The reason advanced for non-production, as set out in the Attorney General’s factum, was the protection of the

public interest in maintaining the integrity of communications, discussions and deliberations between the provinces and the government of Canada and thereby encouraging relations between the two levels of government.

 

Disclosure of such documents is argued to be antithetical to the frankness and candour that is vitally important to such deliberations. In our present political climate the importance of these relations can not be ignored.

When the motion initially proceeded on February 5, 1992, counsel for Energy Probe advanced her argument for production of the documents without having had the benefit of access to the documents themselves. As her argument proceeded, it occurred to me that it might be more helpful if she had access to the actual documents. Eventually an agreement was reached whereby copies of the documents could be provided to her and to the Court on stringent terms as to their use. My order included terms that only the counsel actually engaged in this application on behalf of Energy Probe could have access to the documents and also that the documents would not be referred to in any way in written submissions to the Court.

When the matter returned before me on March 24, 1992, counsel for Energy Probe was able to argue her position with reference to the actual documents. Argument was thereby more focused than it could otherwise have been.

While there are many obvious situations in which interim production of privileged documents of this nature might not be advisable, it was beneficial in this case and I commend the use of this device where the Crown agrees.

The Test

The test for disclosure of documents, such as those in question, is set out in s. 37(2) of the Canada Evidence Act R.S.C. 1985, c. C-5. A court can order disclosure,

subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest. [emphasis added]

 

The Supreme Court of Canada in Carey v. The Queen, [1986] 2 S.C.R. 637, set out what factors the court is to consider when determining the public interest in disclosure and the public interest in Crown Privilege. These factors are:

1) the level of the decision-making process

 

2) the nature of the policy concerned

 

3) the particular contents of the documents

 

4) the time when disclosure is sought

 

5) the importance of producing documents in the interests of the administration of justice having regard to:

 

i) the importance of the case

 

ii) The need or desirability of producing documents to ensure adequately and fairly represented.

 

iii) the ability to ensure that only the particular facts relating to the case are revealed

 

6) any allegation of improper conduct by the executive branch towards a citizen.

 

In Leeds et al. v. The Queen in right of Alberta (1990), 69 D.L.R. (4th) 681 the Alberta Queen’s Bench held that the court should consider these same principles when making a determination under s. 37.

The Documents

The documents in question were styled “Cabinet Documents”. They were largely Minutes of meetings between Federal/Provincial ministry officials and correspondence passing between Ministers and their representatives on the nuclear issue. The date of origin of the documents ranged from 1978 to 1988.

Energy Probe claimed that the documents were relevant in the following ways:

– to reflect the Provincial concerns with respect to conflicting jurisdiction over this important question;

 

– to indicate that alternatives have been considered to nuclear power and that such alternatives, in fact, exist;

 

– to indicate that the Federal Government’s resolve to properly fund nuclear research and development was less than firm.

 

– to demonstrate that the review by the Federal Government of the Chernobyl nuclear disaster was inadequate.

 

In response, the Attorney General argued that many of the documents were too old to be of assistance, that they predated the legislation in question and were in no way part of the process which led to the passing of the Nuclear Liability Act. Some of the documents refer to other legislation which did not proceed. The Attorney General also submitted that many of the documents concerned continuation of the Candu reactor programme and that this was essentially irrelevant to consideration of the legislation in question. Insofar as Chernobyl was concerned, the Attorney General submitted that a review did, in fact, take place and the subsequent report is a public document. Any Minutes of discussions which might have taken place before the investigation was convened are of extremely limited utility. In addition, it was submitted that other evidence is available to support the argument of the plaintiff with respect to this issue.

In general, it was submitted that the relevance of the Cabinet documents to the issues in the action, and their utility, is so slight as to overwhelmingly militate in favour of non-production. In other words, the public interest in disclosure does not outweigh the specified public interest which is the protection of the sanctity of Federal/Provincial communications and negotiations.

Conclusion

On the basis of my own review of the case law and the documents for which production is sought and on the basis of the submissions made, I find that the Crown privilege should be honoured in the circumstances of this case. The documents are of tenuous relevance at best. It is trite to say that government funding of research and development is uncertain, that nuclear energy is dangerous in nature, that alternative energy sources are available and that arguments can be made to construe nuclear energy as an issue falling within the jurisdiction of either the federal or provincial governments. Confidential government documents are hardly required to demonstrate such assertions.

Counsel for Energy Probe did not attempt to make light of the importance of the confidentiality of Federal/Provincial ministry discussions. It was not suggested that I should not give serious consideration to this reality. I am convinced that to routinely order production of such documents merely because they can do no harm or merely because they are only vaguely relevant would potentially do serious harm to the future of such discussions and to fly in the face of the test set out in Section 37 of the Canada Evidence Act.

Evidentiary Questions

In addition, I was asked to rule on several disputes arising on the examinations for discovery. The document which purported to have originated with the Privy Council had been referred to in an article of the Toronto Globe & Mail. Energy Probe submitted that the privilege had been lost in view of the possession of the document by a third party. I take the view that I have no jurisdiction to order production of the document as this is a matter entirely under the jurisdiction of the Clerk of the Privy Council under Section 39(1) of the Canada Evidence Act. The Attorney General takes the position that the decision of the Clerk is final and I have no jurisdiction to go beyond it and I accept that proposition.

The final question arose on the examination for discovery of a representative of the Government of New Brunswick. That representative had refused to compare the plans of the Chernobyl plant and the plans of a New Brunswick facility and give an opinion as to whether or not the New Brunswick plant was built to withstand a greater force than that which occurred at Chernobyl. I take the view that this calls for an expert opinion based upon an hypothesis and for this reason the question was improper.

Order

For these reasons the application is dismissed. The
documents in the hands of Energy Probe shall be destroyed. I
may be spoken to regarding costs.

JARVIS J.

DRS/DRS/DRS

Posted in Nuclear Economics, Nuclear Plant Security, Nuclear Power, Towards Shutdown | Tagged | Leave a comment

Decision on access to documents

Indexed as Energy Probe v. Canada (Attorney General)

May 1, 1992

Between
Energy Probe, Plaintiffs, and
The Attorney General for Canada, Defendant, and
Ontario Hydro and New Brunswick Power Corporation, Intervenors

[1992] O.J. No. 892

DRS 93-04397
Action No. 46878/90Q

 

Also reported at:

10 C.P.C. (3d) 58

 

Ontario Court of Justice – General Division
Toronto, Ontario
Jarvis J.

Heard: February 5 and March 24, 1992
Judgment: May 1, 1992
(7 pp.)

 

Practice — Discovery — Production of documents — Government documents — Cabinet documents — Defences — Crown privilege — Public interest privilege — Statutory limits — Division of powers.

Application for production of federal cabinet and interprovincial cabinet documents in a challenge of the Nuclear Liability Act.

HELD: Application dismissed. The tenuous relevance of the documents was insufficient to justify disclosure. To routinely order production of such documents because it could do no harm or merely because the documents were vaguely relevant would potentially do serious harm to the future of cabinet and intergovernmental discussions and would fly in the face of the test in section 37 of the Canada Evidence Act. There was no jurisdiction to order production of a Privy Council document, as section 39 provided that this was entirely within the Clerk’s jurisdiction.

STATUTES, REGULATIONS AND RULES CITED:

Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37(2), 39. Nuclear Liability Act, R.S.C. 1985, c. N-28.

 

Theresa McClenaghan, for the Plaintiff.
David Sgayias, Q.C., for the Defendant.
Neil Finkelstein and Jeff Galway, for the Intervenors.

——————————————————————————–

JARVIS J.:— This application initially proceeded before me on February 5, 1992. Involved was the production of Federal Cabinet and Inter-Provincial Cabinet documents regarding the question of nuclear energy in Canada. The action involves a challenge to the Nuclear Liability Act R.S.C. 1985, c. N-28, which came into force in 1970. Energy Probe alleges that the Act is ultra vires the legislative jurisdiction of the Federal Government and violates several of the protections of the Canadian Charter of Rights and Freedoms.

Energy Probe took the position that the documents are relevant to the issues in this action and should be produced. The Attorney General for Canada responded that the documents, while marginally relevant, ought not to be produced as a matter of Crown privilege. The reason advanced for non-production, as set out in the Attorney General’s factum, was the protection of the

public interest in maintaining the integrity of communications, discussions and deliberations between the provinces and the government of Canada and thereby encouraging relations between the two levels of government.

 

Disclosure of such documents is argued to be antithetical to the frankness and candour that is vitally important to such deliberations. In our present political climate the importance of these relations can not be ignored.

When the motion initially proceeded on February 5, 1992, counsel for Energy Probe advanced her argument for production of the documents without having had the benefit of access to the documents themselves. As her argument proceeded, it occurred to me that it might be more helpful if she had access to the actual documents. Eventually an agreement was reached whereby copies of the documents could be provided to her and to the Court on stringent terms as to their use. My order included terms that only the counsel actually engaged in this application on behalf of Energy Probe could have access to the documents and also that the documents would not be referred to in any way in written submissions to the Court.

When the matter returned before me on March 24, 1992, counsel for Energy Probe was able to argue her position with reference to the actual documents. Argument was thereby more focused than it could otherwise have been.

While there are many obvious situations in which interim production of privileged documents of this nature might not be advisable, it was beneficial in this case and I commend the use of this device where the Crown agrees.

The Test

The test for disclosure of documents, such as those in question, is set out in s. 37(2) of the Canada Evidence Act R.S.C. 1985, c. C-5. A court can order disclosure,

subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest. [emphasis added]

 

The Supreme Court of Canada in Carey v. The Queen, [1986] 2 S.C.R. 637, set out what factors the court is to consider when determining the public interest in disclosure and the public interest in Crown Privilege. These factors are:

1) the level of the decision-making process

 

2) the nature of the policy concerned

 

3) the particular contents of the documents

 

4) the time when disclosure is sought

 

5) the importance of producing documents in the interests of the administration of justice having regard to:

 

i) the importance of the case

 

ii) The need or desirability of producing documents to ensure adequately and fairly represented.

 

iii) the ability to ensure that only the particular facts relating to the case are revealed

 

6) any allegation of improper conduct by the executive branch towards a citizen.

 

In Leeds et al. v. The Queen in right of Alberta (1990), 69 D.L.R. (4th) 681 the Alberta Queen’s Bench held that the court should consider these same principles when making a determination under s. 37.

The Documents

The documents in question were styled “Cabinet Documents”. They were largely Minutes of meetings between Federal/Provincial ministry officials and correspondence passing between Ministers and their representatives on the nuclear issue. The date of origin of the documents ranged from 1978 to 1988.

Energy Probe claimed that the documents were relevant in the following ways:

– to reflect the Provincial concerns with respect to conflicting jurisdiction over this important question;

 

– to indicate that alternatives have been considered to nuclear power and that such alternatives, in fact, exist;

 

– to indicate that the Federal Government’s resolve to properly fund nuclear research and development was less than firm.

 

– to demonstrate that the review by the Federal Government of the Chernobyl nuclear disaster was inadequate.

 

In response, the Attorney General argued that many of the documents were too old to be of assistance, that they predated the legislation in question and were in no way part of the process which led to the passing of the Nuclear Liability Act. Some of the documents refer to other legislation which did not proceed. The Attorney General also submitted that many of the documents concerned continuation of the Candu reactor programme and that this was essentially irrelevant to consideration of the legislation in question. Insofar as Chernobyl was concerned, the Attorney General submitted that a review did, in fact, take place and the subsequent report is a public document. Any Minutes of discussions which might have taken place before the investigation was convened are of extremely limited utility. In addition, it was submitted that other evidence is available to support the argument of the plaintiff with respect to this issue.

In general, it was submitted that the relevance of the Cabinet documents to the issues in the action, and their utility, is so slight as to overwhelmingly militate in favour of non-production. In other words, the public interest in disclosure does not outweigh the specified public interest which is the protection of the sanctity of Federal/Provincial communications and negotiations.

Conclusion

On the basis of my own review of the case law and the documents for which production is sought and on the basis of the submissions made, I find that the Crown privilege should be honoured in the circumstances of this case. The documents are of tenuous relevance at best. It is trite to say that government funding of research and development is uncertain, that nuclear energy is dangerous in nature, that alternative energy sources are available and that arguments can be made to construe nuclear energy as an issue falling within the jurisdiction of either the federal or provincial governments. Confidential government documents are hardly required to demonstrate such assertions.

Counsel for Energy Probe did not attempt to make light of the importance of the confidentiality of Federal/Provincial ministry discussions. It was not suggested that I should not give serious consideration to this reality. I am convinced that to routinely order production of such documents merely because they can do no harm or merely because they are only vaguely relevant would potentially do serious harm to the future of such discussions and to fly in the face of the test set out in Section 37 of the Canada Evidence Act.

Evidentiary Questions

In addition, I was asked to rule on several disputes arising on the examinations for discovery. The document which purported to have originated with the Privy Council had been referred to in an article of the Toronto Globe & Mail. Energy Probe submitted that the privilege had been lost in view of the possession of the document by a third party. I take the view that I have no jurisdiction to order production of the document as this is a matter entirely under the jurisdiction of the Clerk of the Privy Council under Section 39(1) of the Canada Evidence Act. The Attorney General takes the position that the decision of the Clerk is final and I have no jurisdiction to go beyond it and I accept that proposition.

The final question arose on the examination for discovery of a representative of the Government of New Brunswick. That representative had refused to compare the plans of the Chernobyl plant and the plans of a New Brunswick facility and give an opinion as to whether or not the New Brunswick plant was built to withstand a greater force than that which occurred at Chernobyl. I take the view that this calls for an expert opinion based upon an hypothesis and for this reason the question was improper.

Order

For these reasons the application is dismissed. The
documents in the hands of Energy Probe shall be destroyed. I
may be spoken to regarding costs.

JARVIS J.

DRS/DRS/DRS

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Allocating water for hydroelectric generation: Can the market do it?

(June 7, 1991) Energy Probe director of water research Elizabeth Brubaker presented a paper on allocating water to (and from) hydroelectric generation at the Waterscapes ’91 convention in Saskatoon.  Below is the full text. Continue reading

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Radiation Hormesis

(Feb 1, 1991) Discussions of possible stimulatory effects of low levels of ionizing radiation have recently become entangled with the separate but related question of whether a threshold dose level exists on the radiotoxicologic dose-response curve. This review summarizes some of the relevant historical and scientific data bearing on the question of radiation hormesis.

Continue reading

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