Bruce Nuclear Waste Repository: The Wrong Place at the Wrong Time – Part I

As the second round of public hearings approaches the Panel examining the OPG proposal to establish a Deep Geological Repository to bury nuclear waste at the Bruce reactor site has become even more mired in an avalanche of crap. I won’t give into my inclination to compare the Panel to the inimitable Three Stooges but one of their lines (from the 1941 movie Time Out for Rhythm) is appropriate:

 “Stupidity!? We’re technical experts!”

As I noted in my November 11, 2013 post on this issue

 “psychological intimidation and harassment of hearing witnesses by the police was appalling… the Panel did a poor job of preserving the integrity of the process … I feel the hearings were badly flawed and the Panel’s conclusions should be considered as tainted.”

If that wasn’t bad enough I also pointed out OPG’s unilateral and previously unannounced intention to put long-lived decommissioning and refurbishment wastes in the DGR in addition to the relatively short lived operational wastes from reactor stations.

A lot has happened since the last round of hearings.

My previous post concerning the Federal Court decision on the bungling of the Environment Assessment for new reactor construction at Darlington argued that this ruling had focused a higher degree of legal scrutiny on CNSC decisions.  I suppose that an on-going process at this and other such hearings in the future will be looking for what lawyers call “grounds for appeal”  Again I repeat my regret that there is a legally amateur Panel rather than an experienced judge in charge of the hearings. I think it’s a safe bet that if the Panel approves the DGR then there will be an appeal to the Federal Court of Canada.

Another relevant but unrelated recent decision by the Supreme Court of Canada on First Nations land claims may also impact the hearings.  These claims span a large complex of issues in Canada and I don’t pretend to understand the decision. However, my interpretation is that it refers to aboriginal groups whose land claims have not yet been settled (“un-extinguished” in legal jargon). The Court held that bands in this position are entitled to be involved in and profit from the economic development of the claimed areas, even lands where nomadic tribes used to hunt and fish without necessarily establishing permanent settlements.  The Saugeen Ojibwa Nation (SON), the main band taking part in the DGR hearings, claims the Bruce nuclear site as traditional hunting and fishing grounds. I don’t know the status of SON land claims but I would think the Supreme Court decision will strengthen their already very strong position at the hearings.

The DGR has raised substantial protests from Great Lakes communities and from the state of Michigan in particular. The two US senators from Michigan are opposed and interestingly enough it is reported the state has a law that forbids nuclear waste storage within ten miles of the Great Lakes.  The international embarrassment the DGR has caused could be turned into a positive.  The Panel report has to be submitted to the federal government for a final decision on approval. Perhaps, cancelling of the DGR plan could be made a bargaining chip in getting US approval for the Keystone XL pipeline that Prime Minister Harper is pushing so hard. Cancellation might put two US Senators side for Keystone.

As I noted before, the DGR scheme is being pushed by local politicians from communities around the Bruce site. As a result of secret meetings with OPG that began in 2005 five local Bruce area municipalities agreed to support the DGR for a total payoff of $35 million between them to be paid over 30 years.  However, no evidence has come to light that individual politicians received personal pay offs.  Under the deal the local municipalities apparently won’t get the money if the DGR is not approved – a clear incentive for them to keep pushing it.  An independent investigation released last week showed that the municipal councils negotiated the deal in secret meetings with OPG that initially had no minutes and about which their citizens didn’t know. Voters only found out about this deal at the DGR hearings last year. The investigator concluded that this under-the-table proceeding was in clear violation of the Ontario Municipal Act. The gravity of this revelation is stressed in the Sun Times of nearby Owen Sound editorial of August 16.

“It was and remains a disgrace that a publicly owned corporation should effectively buy the influence of elected representatives and a disgrace that those municipalities allowed themselves to be bought off and still do to this day. “

If OPG management were smart, they would realize that these hearings are a continuing public relations disaster and they should use one of many possible excuses to gracefully withdraw the proposal.  They could then wait ten, fifty or even a hundred years to try again with no real harm to their corporate objectives. But in the last few years no one has accused OPG management of being smart.

The above has covered some non-technical developments since November 2013.  I intend to discuss technical issues in the next post.

 

 

Canada’s nuclear regulator gets spanked by the Federal Court

A recent Federal Court of Canada decision found that the license issued by the CNSC to construct two new reactors at Darlington was invalid because the required environmental assessment was incomplete.

First a little background might help. In 2008 the Ontario government was actively seeking to construct new reactors but hadn’t decided on what type of reactor to choose or on how many to build. Nonetheless they wanted to start environmental assessments right away and so they opted for a scheme that apparently some consultant convinced them had worked in the US.  This idea was to do a generic assessment in which the number or type of reactor to be built is not specified but based on keeping emissions to the environment, accident characteristics, and other factors within certain boundaries, later called a Plant Parameter Envelope (PPE) approach presumably to give it more technical credibility.

OPG (Ontario Power Generation) enthusiastically endorsed this concept. However, it was obvious even then that Ontario had again opted for political expediency over science.  In evidence I offer this quote from a post on this blog dated May 16, 2008:

“Generic environmental assessments of the new Ontario reactors to be located at the existing Bruce Power and Darlington nuclear sites are being organized.  The value of these assessments is questionable when the number and type of the reactors to be considered is unspecified. However, in an even more bizarre turn of events initial indications are that these reviews will be conducted by commissioners of the Canadian Nuclear Safety Commission (CNSC) who will in effect be reviewing their own licensing process. “

The Canadian Environmental Law Association (CELA) eventually took the CNSC to Federal Court after they granted a license to OPG to build two new reactors at Darlington based on a PPE-based generic environmental assessment (EA). The resulting court ruling of May 14, 2014 can be found at

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/71634/index.do

Interestingly, the Court did not find the EA to be flawed because of the PPE method per se but ruled that it failed to take into account differences in waste emissions, disposal of used fuel types and aspects of accident mitigation measures. As the Court pointed out the EA could be remade to be acceptable if it were revised to address these issues.

Like many other nuclear types this development surprised me. I suppose I’d always pictured the CNSC as all powerful in the nuclear field meaning “its word is law”.  Apparently this is not the case at all. On the contrary as this judgment shows CNSC decisions can be successfully challenged in court. Understanding what this means is well worth considering since it will have major consequences for the nuclear industry down the road.

At first sight some industry observers said the ruling didn’t matter since last October (2013) Ontario finally decided not to build any new reactors (after wasting a great deal of money and many people’s time). I think claiming this makes the ruling “moot” is a naïve reaction.

The main impact is that the Court has severely undermined the credibility of the CNSC and opens up its future licensing processes to protracted litigation. Precedent is a powerful concept in law. If you don’t believe that, just look through the ruling linked above which seems to refer to lots of what previous judges have said about EAs. From this time on important decisions of the CNSC (the significant ones involving an EA) will be questioned by law suits. The suits will probably start out by noting this ruling that effectively says the “CNSC blew an EA” with the implication it may well screw up others.  With this victory the courts have now become the new battleground for anti-nuclear groups and the only limitation I can see is how much money (or legal volunteers) these organizations have for legal work.

In recent years I have noted with dismay in this blog the CNSC’s increasing inclination to agree with most schemes proposed by OPG including the not-so-clever PPE approach. The tendency has been for them to come down full bore on small firms that use radioactive sources to show they are tough regulators but to essentially agree with anything OPG suggests however dumb presumably in a  “go along to get along” spirit. This may well be, as I’ve suggested in previous posts, because the CNSC has become the main promoter of nuclear power in Canada.  I think it’s high time the CNSC reconsider its too close relationship with OPG because this ruling in part resulted from that attitude.

Only a short time ago the federal government gave the CNSC full authority to conduct its own EAs of nuclear proposals only referring when needed to Environment Canada and other federal entities such as Fisheries and Oceans and Health Canada.  That had no sooner been done when this ruling made the CNSC look incompetent after one of its licences was bounced by the Federal Court because of a bungled EA.

To be slapped down by the Federal Court constitutes a severe embarrassment to the CNSC, itself a quasi-judicial federal tribunal.  I believe it’s time for far-reaching reforms at the Commission including a weeding out of its senior management.