Roger M. Macklis and Beverly Beresford
The Journal of Nuclear Medicine Vol.32, No.2
February 1, 1991
Jack Doyle
Multinational Monitor
October 1, 1990
The television commerical could easily be mistaken for a pitch to join an environmental organization. It features barking sea lions, playful otters, jumping dolphins, waddling penguins. The world as seen through the camera lens is clean and fresh, brilliant and invigorating. With a full orchestral score of Beethoven’s Ode To Joy welling up in the background, the feeling is overwhelmingly buoyant.
As the 30-second spot opens, we look out across a coastal shoreline to the distant horizon where sea meets sky. There, barely visible in the late afternoon light, is a tiny sliver of a ship.
“Recently,” intones the narrator, as a lone sea lion looks out toward the ship from its perch on the rocky shore, “Du Pont announced that its energy unit would pioneer the use of double- hulled oil tankers [pause] … in order to safeguard the environment.”
Up comes the triumphant Beethoven score as a sequence of shrewdly anthropomorphized waterfowl and marine mammals appears on screen: happy ducks flapping their wings, ecstatic sea lions clapping their flippers, a blissful whale jumping for joy.
“The response …” continues the narrator, “has been overwhelmingly positive.”
On cue, frolicking dolphins flash past. Beethoven revs up again behind shots of more sea lions clapping, penguins flapping, a cloud of flamingos leaping into the sky, a trio of jumping dolphins. The spot ends with a crowd of sea lions applauding as the sun sets behind them.
Then the tag line of the ad familiarly known as “Applause” appears: Du Pont: Better Things for Better Living.
Du Pont’s Conoco division may deserve some applause for being the first big oil company to break with the Brotherhood of Oil by explicitly adopting a double-hull tanker policy, but even that should be tempered by recognition of numerous misrepresentations and omissions in the ad. While Conoco does plan to put two double-hulled tankers in the water in 1992, the rest of its six-ship fleet (one of the smallest in the industry) won’t be double-hulled until the year 2000. The ad fails to note that Conoco’s double-hull vessels will operate primarily (possibly exclusively) in the Gulf of Mexico, where there are no penguins–nor sea otters, seals or sea lions, all of which are explicitly depicted as the beneficiaries of Conoco’s double-hull policy. Nor does the ad mention the economic protection double- hull construction brings to Conoco: 80 percent of tanker accidents in the Gulf of Mexico involve side collisions or groundings (accidents in which double-hulls could help control damage), and the cost of double-hull construction is only 15 percent greater than building single-hulls.
Whatever credit Conoco deserves for its double-hull policy, Du Pont certainly does not deserve the warm and fuzzy environmental glow that the “Applause” advertisement bestows upon it. Du Pont’s environmental problems are too enormous, too far- reaching, too globally destructive to be hidden behind a few double-hulled oil tankers.
Corporate polluter No. 1
Du Pont is the single largest corporate polluter in the United States. In 1989, the latest year for which data are available from the U.S. Environmental Protection Agency (EPA), Du Pont and its subsidiaries reported discharging more than 348 million pounds of pollutants to land, air and water. And Du Pont’s total reported discharge in 1989 was about 10 million pounds greater than in 1988.
Du Pont, in fact, produced more chemical pollution in 1989 than Allied-Signal, Ford Motor Co. and Union Carbide combined. Du Pont’s total reported pollution was 14 times that of Dow Chemical, 20 times that of Chrysler and 30 times that of Mobil– all companies that are themselves among the top 100 U.S. polluters.
Years of Du Pont waste disposal at numerous dump sites across the country are also becoming a problem. Du Pont and Conoco have been designated “potentially responsible parties” under the federal Superfund law and related state laws for liability and clean up of all or part of approximately 50 waste sites in 22 states.
Much of the company’s current waste is disposed of by deep-well injection. Du Pont leads all other companies in the use of this technique, injecting 254.9 million pounds of toxic wastes into underground geologic formations in 1989.
The operating premise of underground waste disposal is that a porous geological zone deep below the earth’s surface (2,500 to more than 10,000 feet down, far below any aquifer) is “sealed” above and below by impenetrable strata, and waste injected through a tubular well shaft to this porous zone will be safely contained within the formation for a very long time–10,000 years, according to EPA requirements.
But underground injection is an uncertain science at best. “Operators of injection wells may know where the wastes are injected,” a Congressional Office of Technology Assessment staff memorandum noted in 1983, “but they do not know with confidence where the wastes will ultimately end up…. [T]here is relatively little detailed information on the long-term effectiveness of injection wells to safely contain and isolate toxic wastes.” Thus far, the U.S. General Accounting Office reports, there have been at least 23 cases in which drinking water contamination is known to have been caused by deep-well-injected oil and gas wastes.
Du Pont has had operational problems with deep-well injection. For example, at the company’s Ingleside, Texas facility, there has been repeated plugging of the injection zone sands in four wells, reportedly caused by injection of unfiltered or incompatible wastes. Acid waste corrosion of well casings and weldings has also been reported at some of Du Pont’s Ingleside wells.
Pollution by design
A number of Du Pont’s products are themselves toxic and environmentally hazardous. One of the most indefensible is lead additive for gasoline [see “Poison Petrol: Leaded Gas Exports to the Third World,” Multinational Monitor, July/August 1991]. Though lead additive is banned in the United States, until recently the company produced it for export at its Chamber Works plant in New Jersey. That plant has been closed, but Du Pont continues to produce lead additives in Mexico–and exports them for sale throughout Latin America in partnership with Pemex, the Mexican national oil company.
The hazards of lead are widely recognized. The World Health Organization has concluded that chronic exposure to low levels of lead had been linked to reduced birth weight, impaired mental development and hearing and other childhood development problems. Dr. Herbert Needleman, a University of Pittsburgh psychiatrist who has studied the effects of lead on children for two decades, condemns the export of lead additives, “These kids’ brains are no different from American kids’ brains. We are exporting a brain poison that our country says is not safe.” Carl Hutter, Du Pont lead additives products manager, offers this response: “If we felt that this was a hazard to people, not only here but in any country, we wouldn’t export it. We don’t export hazards.”
In fact, the company may have exposed people in the United States to illegal levels of lead as well. In December 1988, the U.S. Department of Justice filed suit in a U.S. District Court in New Jersey, seeking to collect $9.2 million from Du Pont for illegally blending excessively high levels of lead into gasoline between 1983 and 1985 at the company’s Carteret, New Jersey facility. According to Rich Kozlowski, EPA’s lead-standards enforcement chief, gasoline blends produced at the Carteret refinery contained lead levels up to four times higher than the permissible limit. The heavily leaded gasoline was sold throughout the Northeast United States.
Pesticides are another line of Du Pont products which are harmful to human health even when used as intended. Some of the most harmful effects of Du Pont’s pesticides occur in the Third
World, where the company markets several pesticides which have been removed from use in the United States and sold others without proper warnings. During Senate hearings on the export of pesticides in March 1990, for example, Senator Patrick Leahy, D- Vermont, chair of the Senate Agricultural Committee, presented damaging evidence that Du Pont’s Benlate pesticide was being packaged without warning labels about the chemical’s potential health and safety effects. “I have a photo of a package of Benlate that was sent to Papua, New Guinea,” Leahy stated. “The EPA considers benomyl to be a possible human carcinogen and mutagen, and the packaging on the pesticide does violate the FAO [United Nation’s Food and Agricultural Organization] International Code of Conduct. It merely states a list of some [of Du Pont’s] products. It does not talk about the problems associated with benomyl.”
One of the most disturbing elements of the company’s agrochemical plans is its hope to market genetically engineered crops that will be resistant to, or tolerant of, DuPont- manufactured herbicides. For example,in 1984, Du Pont scientists developed experimental tobacco plants that were genetically resistant to the company’s Glean herbicide–in fact, 100 times more resistant than normal plants. Now the company is field- testing a variety of crops genetically engineered to be “herbicide resistant,” hoping to guarantee a healthy market for Glean and other herbicides with the new genetically engineered seed.
The fundamental problem with such efforts is that “it diverts us from the paths that really could lead to reduced chemical dependency in agriculture,” argues “Biotechnology’s Bitter Harvest,” a 1990 report of the Biotechnology Working Group, a coalition of environmental, farm, church and consumer organizations. “At a time when pesticide residues are being found increasingly in the food supply, in drinking water, and implicated as a source of farmer and farm worker poisonings, it is both inexcusable and unacceptable that biotechnology be used to further pesticide use in agriculture,” the report states.
The ozone game
It is for producing chlorofluorocarbons (CFCs)–the chemicals which destroy the earth’s protective ozone layer-that Du Pont is most infamous, however. The latest predictions from the EPA are that increased exposure to ultraviolet rays brought on by ozone destruction will resulting 200,000 additional U.S. skin cancer- related deaths over those previously expected during the next 50 years.
Du Pont is perhaps most culpable for stringing out the CFC era for its own business reasons and for delaying a shift to safe alternatives.
Beginning in 1931 and continuing for more than 40 years, Du Pont enjoyed a near-monopoly position in many of its CFC lines. And it held a dominant position in CFC production as a whole, accounting for half of the U.S. market and, at times, more than a fourth of the global market.
During the scientific and regulatory debates that followed the discovery of ozone depletion in 1974, Du Pont played a prominent role, routinely challenging scientific findings, arguing for “further study” and orchestrating a political campaign to forestall regulation.
Even while it downplayed the ozone problem, however, Du Pont had begun researching CFC alternatives as early as 1975. By 1979, several promising candidates had been identified. The main problem was that none of them could be produced as cheaply as the company’s largest selling CFCs.
Two years later, Du Pont abruptly de-escalated its research, ostensibly because scientific concern about CFCs was diminishing–and because market surveys indicated little interest in using more expensive alternatives.
Although scientific concern about the ozone had not in fact diminished, one thing had: the threat of federal regulation. The Reagan Administration was now in power. After spending $3 to $4 million a year on CFC substitutes in the late 1970s, Du Pont spent “practically nothing” on substitutes from 1981 to 1985, according to a Harvard Business School case study, “because it doubted that further regulatory restrictions on CFCs were forthcoming, and because the substitutes were uniformly more expensive.” But more definitive data on ozone depletion continued to mount.
In 1988, after dramatic new scientific evidence was revealed that ozone depletion was worse than previously believed–and after negative media coverage on Du Pont’s stonewalling–the company did an about face, announcing a phase-out of CFCs. The Du Pont phase-out, however, was specifically designated for “fully halogenated CFCs,” a scientific term that came to determine which chemicals were given specific phaseout deadlines under the 1987 international agreement regulating CFCs known as the Montreal Protocol. Some observers speculate that industry– with government complicity–deliberately redefined the formerly singular universe of “chlorofluorocarbons/fluorocarbons” into three new chemical categories. These “new” categories became the basis for differentiating which chemicals would be phased out and which would become the “officially sanctioned” substitutes [see “Du Pont’s Duplicity: Profiting at the Planet’s Expense,” Multinational Monitor, March 1990]. The new categories, HCFCs and HFCs, also damage the ozone layer, but not as severely as CFCs.
By 1988, it was generally believed that CFC replacements would sell at prices three to five times that of existing CFCs.
For Du Pont, the Montreal Protocol has become a godsend. First, by imposing production limits that provided much-needed price increases, the Protocol gave a boost to the company’s CFC business, which had begun declining in the 1970s. Second, it sanctioned a specific group of substitute chemicals that Du Pont was already prepared to deploy, giving them international environmental acceptability and a guaranteed market.
Thus assured, Du Pont began to execute its game plan, securing major commitments from industrial customers, such as a January 1991 commitment by General Motors to use HFC-134a in its 1994 automobile air conditioners. All of this, of course, had the effect of weaving Du Pont’s CFC replacements inextricably into the fabric of the world’s economy.
Du Pont has insisted throughout the CFC debate that the only alternatives available for most CFC applications are those it is currently pursuing. Yet, since 1988, research and development of other alternatives has made impressive progress.
In the electronics solvent market, for example–where Du Pont and others predicted that coming up with an acceptable CFC replacement would be all but impossible–at least three alternatives are now being used successfully: warm soapy water (IBM); terpenese from orange rinds (AT&T); and circuit board production that doesn’t need solvents (Apple, Northern Telecom).
The artful dodger
Du Pont is very adroit in dealing with the new realities of environmental issues. The company is usually one step ahead of its adversaries in strategic thinking and public-relations planning. Many times Du Pont has been able to outgun and outmaneuver its critics and competitors, taking control of what might otherwise become troublesome environmental issues.
In legislative battles, Du Pont typically looks for what it can live with, generally embracing the broad concepts that make the headlines while fighting doggedly over details and technical issues that the public rarely hears about. Those details, however, usually determine how effective new laws and regulations will be. Du Pont has used this political technique time and time again, influencing the final versions of the Clean Water Act, the Toxic Substances Control Act, the Oil Spill Prevention Act of 1990 and others.
In the long battle over the Superfund law, Du Pont supported the idea of creating an industry pool of money to pay for cleaning up hazardous waste sites.
The compromise measure that passed provided $1.6 billion over a five-year period, with 88 percent of the money coming from the chemical industry. Some industry leaders thought Du Pont had sold them out. In fact, Du Pont’s then-CEO, Irving Shapiro, had negotiated a quid pro quo of immeasurable value not only for Du Pont but for the entire chemical industry. In return for getting a commitment from industry to fund cleanup operations, pro-Superfund senators agreed to drop several liability provisions, one of which would have allowed victims of toxic wastes to sue chemical manufacturers in federal court.
Shapiro then went to the White House and had his picture taken shaking President Carter’s hand at the Superfund signing ceremony.
Fighting to the death over liability has, in fact, become something of a Du Pont specialty. Whether in oil spill legislation, consent decrees with EPA or the Department of Justice or settlements with citizen groups, liability is the one issue that Du Pont treats as virtually crucial.
“Better things” … and embedded pollution
Du Pont inventiveness has brought the world a long line of “Better Things for Better Living,” as the company’s 1990s slogan boasts. While Nylon, Dacron, Teflon and an impressive array of other materials have changed the way hundreds of millions of people live, they have also taken a heavy toll on the health of the planet.
Not only have the obvious pollution costs resulted, but huge energy costs and capital costs have also become apparent. Du Pont’s wonder materials and chemical inventiveness produced a new kind of industrial infrastructure, one with a huge appetite for energy and water as well as an enormous outflow of hydrocarbon and other gases.
Du Pont facilities nationwide, for example, consume nearly 1 percent of all the electricity generated in the United States, according to the Wall Street Journal. And the company’s coal, oil and natural gas operation contribute to the release of hydrocarbon gases both in the extraction phase and the consumption phase.
Like Du Pont’s famous synthetic fibers, which are now found woven throughout the world’s apparel economy, Du Pont’s contributions to the planet’s environmental problems are woven deep into the fabric of the world’s economic system. Recapitalizing, reconfiguring and redirecting that system to ameliorate or reverse long-standing emissions and energy requirements will not be easy. Although Du Pont has now embarked on a much publicized pollution-reduction crusade, that alone will do little to alleviate the embedded environmental and energy costs of plastics, synthetic fibers, CFCs and other such substances.
Because Du Pont has played such a major role in creating and deploying these “ever-giving” substances, the level of responsibility and resources it must now commit to extricating the global economy from this embedded pollution should be commensurate with the market share that the company has enjoyed in these arenas for the last 50 years or more. This article is based on the Friends of the Earth report Hold the Applause.
Norman Rubin
Energy Probe
December 31, 1989
After 10 years and many millions of dollars, our case to strike down the Nuclear Liability Act is over. Our decision to call a halt to the proceedings in this long, long saga, which had at least another two years to run and possibly ten, was not easy — we have a strong case and a history of winning in the higher courts. But it was inescapable. Along with our co-plaintiffs, the City of Toronto and Dr. Rosalie Bertell, we have called it quits.
In the end, we were outmaneuvered. The lawyers for our opponents — the federal government, Ontario Hydro and New Brunswick Power — were able to transform our request for a simple and inexpensive clarification of the law into one of the largest and most expensive civil trials in Canadian history. Because of brilliant legal techniques that forced us to legally prove the most obvious of facts — even facts conceded in their own evidence specifically prepared for the trial — the last round alone required months of discoveries followed by more months in court, generating over 2,000 pages of transcripts and over 1,000 supporting exhibits.
To our surprise, and with the generous help of our legal team, which waived most of their usual fees, we were able to fund the research necessary to parry their legal arguments, and to win our share of the victories. But their breathtaking spending on $400 an hour lawyers and consultants racked up millions in fees that — under the trial judge’s ruling — become the responsibility of the losing side. The court case turned into a poker match in which the big spending federal government, and especially Ontario Hydro, were able to up the ante to stratospheric levels.
And that’s what did the case in. Under the original agreement between Energy Probe and the City of Toronto regarding the sharing of court costs, Energy Probe would provide the research and arrange for the lion’s share of the legal fees, and, if we ultimately lost and were unable to pay the other side’s court costs, the City would advance the monies, and we would then pay the City back. This arrangement worked fine until it became clear that the federal government and Ontario Hydro had spent millions — and planned to spend millions more. That spending meant that we could not, if we lost, ever reimburse the City, as we were committed to, no matter how long the terms might be. We advised the City that we would not be able to honour our commitment in the event of an ultimate loss, leading to a joint decision to end the case. The defendants in the case readily agreed to settle. The financial upshot of all this, after 10 years in the courts? The City of Toronto will have spent $350,000, Energy Probe about $1,000,000, and the taxpayers and ratepayers of the federal government, Ontario Hydro and NB Power many
times that amount. Ironically, Energy Probe has been paying its legal expenses as it went along, and avoided any debts by setting aside money. The federal government, Ontario Hydro, and NB Power, in contrast, all went deeper into debt while spending millions on this case, forcing tax payers and rate payers to pay for the trial for years to come.
I personally regret not being able to carry the case through to completion. Having lived and breathed this case for a decade, I would like nothing more than to strike down this awful law, which protects the likes of Ontario Hydro, GE and Westinghouse in the event of a catastrophic accident, even one they cause, at the expense of those who would lose their homes and livelihood without any entitlement to fair compensation.
But I also recognize that the case has largely served its purpose, and in more ways that one. Impartial Canadians apprised of the facts no longer defend the nuclear industry. When we first launched our case in 1986, the nuclear industry was expanding with no end in sight. Today, in part because our activities helped inform the general public and shake some sense into government leaders, it is being phased out. Even the judge at the last trial, though he preferred the government’s arguments to ours, was very clear on two points: the possibility of a catastrophic nuclear accident in Canada exists, and the continued operation of Canada’s nuclear reactors “would be in jeopardy” without the special protection of the Nuclear Liability Act. We were beaten in the court system, but it’s the nuclear industry that is bowed.
I offer my sincere gratitude to the many thousands of Canadian citizens, and the foundations and agencies, whose contributions have so generously supported this trial. I hope you all agree with the decision we took, and that you are proud of the trial’s accomplishments. We had no other reasonable option. And now let me tell you about one of the biggest dividends to come from the trial — the reams of secret nuclear safety documents that, thanks to the court system, the federal government and Ontario Hydro were forced to release. These official documents, made exhibits at trial, show that nuclear reactors are more dangerous, and that government regulators are more lax, than even we at Energy Probe had recognized. With them now public, we have our most potent weapons yet to force improvements, and to show that an orderly and prompt phaseout of existing nuclear power plants is the only logical course for Canadian society. We have already begun turning our attention to this urgent goal.
Sincerely,
Norman Rubin
Director, Nuclear Research
Ontario real Estate Newsletter
November 1, 1989
Just imagine that, against all calculated odds, a fairly serious accident occurs at one of Ontario Hydro’s nuclear power generators at Pickering. Radioactive contamination is released and everyone living or working within a 15 km radius is ordered to evacuate. The affected area includes all of Pickering, Ajax, Whitby, plus the east end of Scarborough. After living in tent cities and school gymnasiums for a month, the victims are told that, although there is no real danger and just to be on the safe side, no one can be allowed back into the affected area for another two months (to give army decontamination crews time to hose down the buildings and generally flush radioactive dust into Lake Ontario). Of course children should stay clear for at least a year! In the meantime, while Toronto real estate will have taken a serious nose dive, property values in the affected area will be worth about zero on the open market. So who pays for lost equity (not to mention lost business and wages)? Well, Ontario Hydro will be liable for a maximum of $75 million – say two hundred dollars per person affected. If property owners want more they will have to look to the federal government for compensation. Who knows, they might eventually get as much as fifteen cents on the undepreciated dollar (if they are lucky).
Of course, Ontario Hydro would argue that the possibility for such a serious nuclear accident to occur at one of their CANDU plants is simply too remote to be taken seriously. However, Canadian insurance companies refuse to take the nuclear industry’s assurances seriously. They specifically exclude coverage for nuclear accidents from property insurance policies. Like insurrection and war, nuclear accidents are considered by the insurance companies to be so potentially catastrophic that they are too risky to insure. Canada’s Nuclear Liability Act was brought into force in response to that attitude. According to David Poch, lawyer for Energy Probe, the Nuclear Liability Act “guarantees suppliers in the nuclear sector protection from claims of victims in the event of a nuclear accident”, and limits the financial liability of plant operators to a token $75 million.
Unhappy with the situation, Energy Probe, the City of Toronto, and 11 individuals have challenged the legality of the Nuclear Liability Act. Ontario Hydro, NB Power and the Federal government tried to stop them getting the case to court but last month they lost that fight. The utilities and the federal government had argued in the Ontario Court of Appeal that there was no reason to hear the case in court, that it was all academic until there was a meltdown. The Court disagreed. It accepted Energy Probe’s argument that the case should be heard because the Act may discourage safety consciousness on the part of the private sector nuclear parts suppliers. The Court agreed that the Act subsidized the industry, and could affect the likelihood of future plants being built. The government and the utilities tried again, this time appealing to the Supreme Court. On October 13th the Supreme Court of Canada refused to hear the appeal. So the nuclear industry will face trial on the liability law.
According to Clayton Ruby, the lead counsel for the plaintiffs challenging the Act, “The Act’s very existence exposes the industry’s own fears of catastrophic accidents. The industry wants financial protection from nuclear accidents. We will argue that government should be protecting the public from the industry, not the other way round.”
We agree with Mr. Ruby and believe it is in the interest of property owners to support this challenge to the Nuclear Liability Act. Most car owners carry $1,000,000 in public liability. The public liability of a nuclear power plant operator should not be limited to the insurance equivalent of 75 automobiles.
Christie McLaren
Equinox
November 1, 1989
For 10 years, studies from, Great Britain and the United States have reported that children and young adults living near nuclear facilities have higher rates of leukemia – a nine fold increase in one case – than expected. Now, research into the incidence of childhood leukemia in Ontario has provided disquieting evidence that a similar tragedy could be unfolding closer to home.
Preschool children born near the Bruce Nuclear Power Development, on Lake Huron. have developed leukemia at twice the expected rate and have died from the disease at 3.5 times the normal rate, according to a $69,000 study for the federal Atomic Energy Control Board (AECB). The children were born within 15 miles (25 km] of the eight-reactor station, which produces 30 percent of the province’s electricity.
Medical records for hundreds of children also revealed slightly higher-than-expected leukemia rates near the Port Hope uranium refinery, the Pickering Nuclear Generating Station, east of Toronto, and the Elliot Lake uranium-processing facility, while rates were slightly lower than expected near the Chalk River research laboratory.
While the researchers, led by Aileen Clarke of the Ontario Cancer Treatment and Research Foundation, say the current numbers are too small to be certain that a problem exists and await the second phase of the study, which will examine children 5 to 14 years of age, the agency responsible for regulating the Canadian nuclear industry has declared that there is no cause for concern. “We don’t have a big problem in Canada,” says Robert Potvin of the AECB. “We definitely do not have a situation like that in Britain.”
But by denying that there is any reason for concern, federal nuclear officials “did their usual 1950s job of putting happy faces on bad news,” according to Norm Rubin, director of nuclear research for Energy Probe in Toronto. Although not scientifically proven, the study “indicates strong grounds for concern that… the CANDU stations in Canada are causing illness and death around them.”
Residents living in the shadow of the nuclear plant have also been slow to draw conclusions. “We are very concerned, and we want the thing monitored,” says Ron Andrews, reeve of Bruce Township. “The results to date are not conclusive enough to make hard-and-fast statements.” Even if they are inconclusive, the Ontario findings, like those in the United States and Great Britain, have important implications for thousands of Canadians living near nuclear facilities in Manitoba, Ontario. Quebec and New Brunswick. And they may fuel the relatively new theory that continued exposure to low levels of radiation can weaken the human immune system, perhaps even in the womb.
Inspired by Canadian scientist Abram Petkau, researchers in the United States have recently been urging further studies into the health effects of low-level radiation. Working out of Atomic Energy of Canada Ltd.’s research facility in Pinawa, Manitoba, Petkau has suggested that continued exposure to low levels of radiation can be more destructive to immune-system cells than a short-term, higher exposure.
While AECB hopes that phase two of the leukemia study, to be completed by March 1990, will put the matter to rest, Reeve Andrews favours a long-term approach. Recalling that workers were exposed to asbestos for 30 years before health problems started to turn up, he says it will be years before studies can conclude how peoples’ health is affected by living near nuclear-power plants. “I think there is a parallel to be drawn,” he says. “If there is validity to the argument that living close to a nuclear plant is going to cause a higher [leukemia] rate, it would take a significant number of years for it to show up.”
Linda McQuaig
The Globe and Mail
October 10, 1989
The nuclear industry greets almost any question about a nuclear accident with the quick assurance that the chances of such a mishap are so small as to be infinitesimal.
But companies that manufacture parts for nuclear-power plants will not sell their equipment to plant operators unless they are granted immunity from lawsuits over damages that could result from an accident.
The manufacturers’ insistance on this led Ottawa, in 1970, to pass the Nuclear Liability Act, under which the Industry is completely off the hook for damages in the event of a nuclear accident – even if an operator is negligent.
Almost 20 years later, with the reputation of nuclear energy tarnished by Three Mile Island and Chernobyl, a coalition of energy critics, scientists and the City of Toronto has launched a court challenge under the Charter of Rights and Freedoms to strike down the law.
The Supreme Court of Canada is expected to announce on Thursday whether it will uphold a lower-court ruling that would allow the case to proceed.
The coalition, led by the environmental group Energy Probe, argues, that the act reduces incentives for the industry to design safe equipment, limits the rights of victims, and leads to false conclusions about the real risks and costs of nuclear energy.
“The industry, perhaps more than anyone else, realizes the extraordinary risks we’re dealing with,” said David Poch, a lawyer with Energy Probe in Toronto. “They just aren’t prepared to shoulder the financial risks.”
Mr. Poch said that, like other governments around the world in the early days of nuclear power, Canada was so keen to build reactors that it agreed to the industry’s demand for a blanket exemption.
Ian Wilson, vice-president of the Canadian Nuclear Association, which represents the manufacturers and suppliers of nuclear equipment, said an accident at a reactor could lead to damages that would be “quite horrendous.”
Mr. Wilson added: “It’s impossible to have the suppliers accept that level of responsibility.”
The act places some liability – for a maximum of $75-million – on the Crown corporations, such as Ontario Hydro, that operate nuclear-power plants.
Mr. Wilson said this amounts to a no-fault insurance scheme, under which victims would be automatically compensated.
But Mr. Poch estimates that if there were a nuclear accident at Hydro’s reactor at Pickering, near Toronto, the $75-million would provide about $20 each to residents, who might face damages including lost relatives, cancer, and the permanent loss of the use of their properties.
By comparison, he notes, the Soviet Union has already spent $12.8-billion compensating the families of victims, relocating 25,000 survivors and cleaning up the environmental disaster caused by the 1986 fire and explosion at the nuclear plant in Chernobyl. Yet even the $75-million limit set by the Canadian government for nuclear operators caused the insurance industry to balk when it was called on to provide coverage.
Although the Nuclear Liability Act was passed in 1970, it was not proclaimed until 1976 because of problems in negotiating insurance coverage, and the insurance industry’s unwillingness to insure the full “span of risks”, according to a discussion paper prepared by the Atomic Energy Control Board. Canada’s nuclear-regulatory agency.
Mr. Wilson, from the nuclear industry association, acknowledges that the costs of a nuclear accident are “unthinkable”. But he argues that the Nuclear Liability Act does not limit the compensation of Canadians to $75 million. He notes that it leaves open the door for Parliament to provide, additional funds, although there is no guarantee of such funds.
The impact of this would be to, transfer the burden onto the taxpayer.
Mr. Poch said that this passing of the buck to the federal government helps mask the true cost of nuclear power.
He said that if there was no protection against lawsuits, the industry and the Crown corporations operating the plants would face such massive insurance premiums – if they could get that much insurance – that nuclear energy would suddenly seem like a far less cost-efficient form of energy.
He also notes that the act provides a protection for private companies that is not available to companies in other industries.
Ontario Hydro, the largest nuclear-power operator in Canada, argues that the special protection provided for the nuclear industry has been essential for the development of nuclear energy in Canada.
Hydro, which is strongly committed to the development of nuclear power, has intervened against Energy Probe’s court challenge, and has gone to the Supreme Court in an attempt to block the environmental group from proceeding with the case.
In an affadavit filed with the court, Lorne McConnell, a nuclear engineer and Hydro vice-president, said striking down the act would have “a serious commercial effect upon Ontario Hydro.”
He said that, without some sort of blanket exemption for the industry, most of Hydro’s suppliers and contractors would simply refuse to supply and service the corporation in the future.
For Energy Probe, this only confirms suspicions that the risks of a nuclear accident are greater than the industry lets on.
Olivia Ward
Toronto Star
June 4, 1989
It’s a nuclear nightmare not even the staunchest critics of atomic power like to visualize: radioactivity spewing from a molten reactor core into the atmosphere, the soil, the water supply, the food we eat and the air we breathe.
It might never happen – and nuclear power officials say it won’t. But others who watch accidents here and around the world say that if it did, areas as large as 1,500 kilometres (932 miles) around the accident area would be contaminated, with possible billions of dollars in damages.
But under an obscure federal law called the Nuclear Liability Act, operators of nuclear plants only have to pay a total of $75 million to people suffering loss or injury.
The companies that supply the hardware for nuclear plants don’t pay a cent.
That’s unsettling to people looking south to Three Mile Island in Harrisburg, Pa., where 10 years of damage claims from North America’s worst nuclear accident resulted in $41 million in compensation for evacuation expenses alone, an additional $14 million paid out for “emotional stress” and multimillion-dollar lawsuits circulating in the courts.
Future in question
In Ontario, where 20 out of the country’s 22 reactors are found, the chance of a nuclear accident is highest. So the City of Toronto, Energy Probe and 11 concerned citizens are taking the federal government, Ontario Hydro and the New Brunswick Power Commission to court to change the law which they say exposes people living around reactors to uncompensated damages, and encourages power station operators to be apathetic about nuclear safety.
If they win, the era of cheap atomic energy might be over for Ontario ratepayers – and the future of nuclear power in question.
Hydro is appealing the Ontario Court of Appeal’s decision to let the case go to court. And officials say the idea of making the corporation more responsible by pricing insurance out of the market is ridiculous.
“Our people are members of the community,” says Hydro’s general counsel, Lawrence Leonoff. “They go to the plant. To think they or the manufacturers will be lax just because of an insurance sum is spurious.”
David Poch, a lawyer for the Energy Probe think tank group, disagrees.
“The law gives the nuclear industry a licence to lie, or cheat, or sell faulty products, even if they know they’re faulty,” he says.
“If a company like Union Carbide injures you or your property, they have to pay you for it. With this double standard, the nuclear companies can walk away.”
Poch argues that even though Canada’s nuclear accident record is good compared with some other countries, we’re not immune to a potential Three Mile Island or Chernobyl-style disaster. If one occurred, citizens would have little defence in the law.
Here’s what would happen after a nuclear accident, under the current law:
· Damage victims immediately lose the right to sue for compensation. Instead the government sets up a claims commission of three or more members.
· The commission hears cases, gets medical or other evidence, and decides whether the claims should be paid.
· Compensation orders go to Ottawa, where the cabinet decides how to dole out the $75 million fund. (If claims appeared massive, the only change in the fund total would be by act of Parliament.)
· After three years, health claims would be hard to make, because the law says they must not be filed “after three years from the earliest date upon which the person making the claim, had knowledge… of the injury.” However, victims of slow-developing cancer or genetic mutations have no way of knowing when the damage begins.
Clay Ruby, arguing the case for Energy Probe, says the process set up by the Nuclear Liability Act is wrong because it discriminates against potential nuclear accident victims, who aren’t allowed to go to court as other damaged groups are, to have their cases decided on individual merit.
“What the law is saying is that nuclear victims are different, and that’s okay. We agree that the purpose of the law is to discriminate, but we think that’s wrong.”
Hydro’s Leonoff says the law is in line with those of all nuclear power countries, which shield their atomic industries from potentially crippling payouts.
If the suppliers of nuclear hardware weren’t protected from damages, Hydro wouldn’t be able to cover their losses. And the suppliers themselves would have to opt out.
The nuclear industry has stayed out of the lawsuit. But, says the Canadian Nuclear Association’s vice-president for technology, Ian Wilson, “We’re observing with great interest.”
Wilson argues that the industry gets no free lunch from the liability act – it just pays in other ways.
“Our real premium is the containment systems and safety measures we’re required to use under licence by the Atomic Energy Control Board. The industry is subjected to regulation all the time. And a utility that’s building a nuclear plant has to have confidence in its suppliers. We aren’t foolish enough to squander that away.”
Wilson says it’s the ratepayers, not the industry, getting a free ride on nuclear power. “They have the insurance without paying the premium.”
And, he says, people who suffer damage from a nuclear accident are at an advantage under the liability act: “They don’t have to go to court to get compensation.”
The City of Toronto isn’t convinced. City officials believe that in an accident the Metro area, with its high-density 3 million population, would account for the biggest portion of claims.
And, says U of T law professor Michael Trebilcock, “The liability limits of the act are significantly less than the potential consequences of a nuclear accident.”
‘Human frailties’
In the U.S., nuclear liability has been raised to $7 billion, and each power plant operator has to carry a $63 million insurance policy. According to the Nuclear Regulatory Commission, it’s a cost-sharing arrangement that lets victims claim sums up to $7 billion in case of a serious nuclear accident.
And, say critics of Canada’s law, the large amounts of stored radioactive material that might be released by an accident in this country would cause damage well beyond $75 million.
There are no Canadian studies on nuclear accidents, and the industry maintains the Canadian Candu reactor has a very low probability of disaster.
But a 1976 Greenpeace study of Candu operating hazards points out safety failures and concludes: “These examples reveal nothing more than the simple fact that Canadians working in the field of nuclear reactor safety are prone to the same human frailties that one finds from Chernobyl to Harrisburg (Three Mile Island).
“The Candu is not immune from large and uncontained fuel melting accidents.”
Tom Claridge
The Globe and Mail
April 14, 1989
The Ontario Court of Appeal cleared the way yesterday for a constitutional challenge of a federal law that limits the liability of Canada’s nuclear power utilities in the event of a major accident.
In a unanimous decision, three judges of the court overturned a judge’s summary dismissal of the proposed action on grounds it was premature and as such had no hope of success.
Speaking for the court, Mr. Justice James Carthy said he had concluded that there was “some chance” that the would-be plaintiffs – Energy Probe, 11 individuals and the City of Toronto – could prove their allegations.
At a three-day hearing last November, the appellants argued that provisions in the Nuclear Liability Act violate the equality-rights section of the Charter of Rights and Freedoms.
Lawyer Clayton Ruby had concentrated his attack on provisions limiting over-all liability from a single accident to $75-million, requiring claims against a utility to be launched within 10 years of the cause of action, and insulating component suppliers and designers from suit.
He buoyed his case with fresh evidence not available at the earlier hearing before Mr. Justice Robert Montgomery of the Ontario Supreme Court. It included an affidavit from Energy Probe researcher Norman Rubin asserting that the challenged law amounts to a subsidy that will encourage Ontario Hydro to build more nuclear plants as the cheapest option for added capacity.
The affidavit also cited new legislation in the United States raising the compensation available there in the event of a nuclear disaster to $7-billion.
The appellants argued that the federal law discriminates unconstitutionally between nuclear victims and plaintiffs in other lawsuits by imposing the recovery ceiling and short limitation period; between victims of the same accident who seek compensation before the $75-million ceiling or 10-year limit is reached and those who do so later; and between victims of catastrophes and relatively minor nuclear accidents.
Observing that the Charter’s Section 15 on equality rights was recently re-interpreted by the Supreme Court of Canada in a decision that struck down British Columbia’s bar against non-citizens becoming lawyers, Judge Carthy said: “I cannot conclude with confidence that the appellants may not succeed with these arguments.”
And in rejecting a conclusion of Judge Montgomery that the proposed action was premature, in that there had been no serious accident, Judge Carthy said the appellants argued there was “a present harm – more nuclear plants and more risk.”
The judge said the court “should be vigilant to assure that curious bystanders and busybodies do not take up its precious time with hypothetical questions,” but found that was not the case here.
“When I see serious individuals such as the appellants in this case presenting concerns that are of fundamental significance to all citizens, I have no hesitation in concluding that this is not an abuse…”
Wise News Communique (314.2145)
June 16, 1988
The accident at Chernobyl pointed out very clearly that accidents at nuclear power plants can cause immeasurable damage. The accident at Chernobyl pointed out very clearly that accidents at nuclear power plants can cause immeasurable damage to the environment. How, and to what extent, is this kind of damage compensated?
To address this the Treaty of Paris was concluded and signed in 1964 by the following countries: West Germany, Austria, Belgium, Denmark, Spain, Finland, France, Greece, Sweden, Great Britain, Portugal, Holland, Italy, Norway and Turkey. Under the treaty, operators of nuclear installations could only be held liable for a fixed amount of money in the event of an accident. The reason for limiting the liability is explained in the joint comments in the text of the Treaty: “The very large financial costs, which could be the result of unlimited liability, could severely endanger the development of the nuclear industry.”
The Treaty states further: “There must be a decision as to which part of the damage caused by a nuclear accident should be paid by the operators… and which part should be paid by the victims and finally how much of the compensation should be borne by the Government.” The basic point here is that the victims themselves must bear financial responsibility for a part of the damage done to them, in addition, of course, to having to bear the effects of the accident itself.
Indeed, “…on the one hand the public needs, for legal and psychological reasons, the insurance of certain protection against unknown dangers; on the other hand the development of the nuclear industry must not be obstructed by too heavy a liability.” In other words, liability has to be limited, otherwise the development of nuclear power will be endangered…
Meanwhile, the countries which are members of the Treaty of Paris have worked out, each on its own on a national level, the maximum financial coverage (see chart). But what is clear is that the Treaty is not protecting the victims of a nuclear accident, but the nuclear industry.
Click here for the Full Report.
Joseph Palca
Nature Vol 322
March 31, 1988
Washington – The Price-Anderson Act, the law that defines industry liability in the event of a nuclear power plant accident, is lurching towards renewal in Congress. Attempts to revive it before it expired last summer failed, as did those shortly afterwards. But now the Senate has passed and will shortly send to the House of Representatives its version of the new legislation, and observers from industry, environmental groups and congressional staff agree that final passage appears inevitable.
The Price-Anderson Act was created in 1954 to protect a fledgling nuclear industry from devastating liability claims in the event of a nuclear accident. The law created a pool into which all nuclear power plant operators would make contributions in the event of an accident. Liability limits crept up over the years, so that by the time the act expired last August utilities were required to carry $160 million in insurance for each power plant they owned, and to be prepared to contribute $5 million to the coverage pool. That amounted to a total industry liability of around $700 million, far below even the most conservative damage estimates for any major accident.
The Senate version of Price-Anderson would raise the contribution to $63 million per reactor, amounting to an industry wide liability of more than $7,000 million, a tenfold increase. Environmental lobbies have seen this as a tremendous victory, and the industry – aware that liability limits had been unreasonably low in the past – was happy to stave off unlimited liability that some had been pushing for.
Price-Anderson also covers Department of Energy contractors whose work deals with fissionable materials. Without Price-Anderson, DoE contractors were threatening to refuse to sign contracts. But last year, the University of California agreed to continue to operate the DoE national laboratories at Livermore. Los Alamos and Berkeley under the terms of the War Powers Act, and a crisis was averted (see Nature 330, 103; 1987). The next major problem for DoE will be to find a contractor to run the weapons production reactor at Savannah River. DuPont has already told DoE it wants out, but now that Price-Anderson appears likely to gain approval, finding a replacement should be easier. Contractors are also covered up to about $7,000 million in the event of an accident, but the government picks up the tab.
Environmental groups had sought to make contractors liable for damages if negligence contributed to an accident. But Price-Anderson will in essence retain its ‘no-fault’ approach, although the Senate agreed to permit DoE to assess penalties against contractors found negligent, in much the same way that the Nuclear Regulatory Commission may fine nuclear power plant operators.
An odd sticking-point may hold up final passage of the bill. In the Senate, an amendment was added that would extend Price-Anderson coverage to manufacturers of radiopharmaceuticals. That industry has had problems obtaining insurance, and some saw Price-Anderson as a convenient vehicle for providing that coverage. But the leadership in the House of Representatives does not agree, and a battle may be fought in conference between the two houses over this seemingly irrelevant point.
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