Canadian Nuclear Safety Commission

Bruce Power nuclear plant, CNSC

What Happened

Members of the public have long been concerned over the independence, transparency, and accountability of the CNSC. In 2008, the Commission’s President Linda Keen was fired for refusing to permit a licensed nuclear facility to operate, on the grounds that it could failed to comply with the safety conditions specified in its licence. Since then, the CNSC and its new president Michael Binder, have systematically discredited critics of the Commission and nuclear industry, silenced the Commission’s own scientific staff, and actively sought to stifle public debate concerning potential health and environmental hazards of nuclear facilities and radioactive substances.

Background

The Canadian Nuclear Safety Commission (CNSC) was established between 1997 and 2000. Its predecessor, the Atomic Energy Control Board (AECB), had been established in 1945, declaring nuclear energy to be essential to the Canadian national interest and falling under exclusive federal jurisdiction. The AECB it was given the exclusive authority to control and supervise the development, application, and use of atomic energy. The history and development of the AECB from 1945 through the 1960s and 1970s illustrates its unusual role as a proponent and supporter of nuclear energy and an expanded nuclear energy sector – rather than merely serving as an independent, arms-length regulatory body. Several critics during this early period had concerns over the limited mandate of the AECB, its close relationship with the federal government and nuclear industry, as well as its lack of public transparency and accountability.

The CNSC’s new enabling legislation (the Nuclear Safety Control Act (NSCA)) emphasized the Commission’s duty to protect the public and environment in exercising its regulatory authority – something that was not as explicit in the former Atomic Energy Control Act. The NSCA requires the Commission to regulate the nuclear industry via the provision of licences to operate nuclear facilities. These licences must include specific conditions to ensure the safe operation of these nuclear facilities. While the CNSC grew in size and responsibility (compared to the smaller AECB), it retained many of the same staff, and public concern over its lack of independence, transparency, and accountability have persisted.

Many of these concerns gained prominence in 2008 when the CNSC’s president Linda Keen was fired for exercising her statutory duty to protect the public safety and enforce CNSC licence requirements for a medical isotope producing facility. The Atomic Energy Canada Ltd (AECL) produced 30-40% of the world’s medical isotopes, however it was one of the oldest nuclear facilities in the world, and built on a fault line experiencing seismic activity. When the CNSC learned that the AECL facility was not complying with important safety conditions of its licence, it closed the facility until the non-compliance could be satisfactorily remedied. The closure of the facility sparked indignation from the federal government, which pressured Keen to reverse the Commission’s decision. When she refused (on the grounds that to do so would be inconsistent with her position and the NSCA), the government passed special legislation to permit the facility to operate without complying with its CNSC licence.

Ms. Keen was ultimately fired one day prior to when she was scheduled to appear before a parliamentary committee investigating the incident – effectively preventing her from giving testimony in the investigation. Since then, strong evidence has come to light indicating that the incident was used as an excuse to fire Keen, who was intent on making CNSC regulations more stringent – against the interests, and lobbying of the nuclear industry. A legal report from the Nuclear Energy Agency has since highlighted conflicts within the CNSC presidents’ mandate and the position’s susceptibility to conflicting interests.

Since 2008 there have been repeated instances in which the Commission and its new president, Michael Binder, have shown considerable support for, and deference to, the nuclear industry. Significantly, in one of his first activities as CNSC president in 2009, Binder licensed a new AECL reactor, requiring approximately half a billion dollars in federal funds. Further, the CNSC and its president have attempted to systematically silence expressions of public concern over the unclear industry and nuclear regulation in Canada in several ways, discussed below.

Promoting nuclear power and the nuclear industry

In 2009, shortly after replacing Keen, President Binder attended a series of secret meetings with the Bruce County Council to discuss a proposed Deep Geological Repository (DGR): a facility designed to permanently store 200,000 m3 of low and intermediate level radioactive waste 690 m underground next to Lake Huron. Notes from that meeting (taken by the DGR’s proponent Ontario Power Generation (OPG) – a CNSC-regulatee) record Binder as saying he “hoped their next meeting would be at the ribbon cutting ceremony for the [DGR]”.

In 2013-4, a Joint Review Panel (JRP) of the CNSC and federal Ministry of Environment provided a preliminary approval of OPG’s DGR. Since being proposed, the DGR and its initial approval have raised serious concerns amongst members of the public who believe the project was subject to an insufficient review and who a perceived lack of independence and accountability of the JRP decision-makers. Concerns over the project review’s shortcomings led the new Minister of the Environment, Catherine McKenna, to reject the DGR’s preliminary approval in February 2016. She warned OPG that it needed to provide more information about the environmental impacts of the DGR and alternative locations of the project before she would consider any approval. Many have since found OPG’s responses to the Minister’s questions to be inadequate and obfuscating, exacerbating existing concerns about the project.

Discrediting critics

In 2015, Quebec’s Bureau d’audiences publiques sur l’environment (BAPE) released a report which expressed concerns over the safety of uranium mining operations in the province – the mines are regulated by the CNSC as uranium is a radioactive substance. Unlike the CNSC, the BAPE has a mandate that requires it to assist with Quebec’s transition to a more sustainable development. In response to the BAPE report, President Binder wrote to the Quebec Minister of Environment, David Heurtel condemning the report’s conclusions. In his letter, Mr. Binder asserted, “the decision of the BAPE to continue questioning the scientific principles and the proven safety record of modern uranium extraction boils down to misleading the people of Québec and Canadians”. Despite Binder’s assertions, there are several environmental organizations that still believe there is merit to persisting concerns with old mines and their remediation, and that this requires more proactive CNSC regulation and public transparency.

In addition to lashing out against Ministers and government agencies, the CNSC has actively refuted the concerns of individual independent experts. In January 2018, Frank Greening, a retired nuclear scientist and expert in radioactive chemistry, launched a suit against the CNSC alleging defamation, breach of confidence, and breach of privacy. Mr. Greening had intervened in licence hearings and other opportunities for public input by the Commission, and expressed concerns over the safety of these facilities and their oversight by the Commission. In his suit, Greening asserted the CNSC and its Vice-President Ramzi Jammal attacked his personal integrity and damaged his professional reputation in a release it posted to the CNSC website as well as an email listserv to approximately 2000 email addresses. The release included Mr. Greening’s home address and personal email information, which were later removed from the CNSC website due to the subsequent involvement of the Office of the Privacy Commissioner of Canada.

Silencing public debate

In 2011, President Binder appeared before a House of Commons Committee. At that session, he was asked to respond to concerns raised by members of the public about the shipment of radioactive steam generators through the Great lakes. Mr. Binder responded by discrediting these concerns asserting “This is not about safety… this is about anti-nuclear.” And accusing those expressing concerns as “professional” anti-nuclear activists spreading “misinformation and scaring the hell out of people”. Those who had been expressing concerns over the shipments included Michael Deslile, Grand Chief of Kahnawake, as well as the Sierra Club, Canadian Environmental Law Association (CELA) (which had brought a court action against the CNSC over environmental concerns with the shipments and approval process), the Bloc Quebecois, NDP, and several citizen’s organizations representing affected communities.

The CNSC has also developed a troubling pattern of dismissing other public expressions of concern over nuclear facilities via public statements posted to its website or published in newspapers. Between March and June 2018 alone, at least five such statements were published publicly refuting opinion letters or news articles expressing concerns over nuclear facilities.

In 2009, the Sierra Club released a report in which it issued a warning to the public concerning high levels of tritium (a radioactive contaminant from nuclear power reactors) measured in Lake Ontario and drinking water intakes. The CNSC issued a public statement in which it asserted elevated tritium concentrations were not a health hazard, and that the Sierra Club report was “junk science” and fundamentally flawed as it chose to “ignore the important benefits of nuclear technology”. Others have also noted their concerns over former CNSC President Binder’s classification of government agencies’ reports as “junk science” if they included critiques of aspects of nuclear energy in North America – even CNSC co-sponsored reports.

Another example of a more recent CNSC statement concerned a scientific report released in March 2018, and reported on by the CBC, describing thousands of litres of contaminated water from the nuclear power demonstration (NPD) reactor in Rolphton, ON. Environmental groups, Indigenous nations, and concerned citizens living close to the Canadian Nuclear Laboratories (CNL) facility, expressed their worries over potential impacts to aquatic ecosystems, which it appeared were not being effectively protected. The Commission published a response to the article in which it asserted that the CNL facility did not have a significant impact on the environment – a finding that had not yet been established in a hearing for the facility which had yet to take place.

Surveillance and intimidation of the public

In 2013, several local residents of Kincardine received house visits from the Ontario Provincial Police (OPP). Police made visits to all houses in which people had scheduled to present at an upcoming CNSC public hearing to consider OPG’s proposal to build the DGR. At these visits, police officers asked inhabitants whether they planned to stage any protests or demonstrations in advance of or during the hearings. Residents reported these visits were confusing and intimidating. While OPG initially claimed the CNSC and local municipalities had engaged the OPP to conduct these visits, CNSC representatives denied this.

CNSC staff expressing concerns about the Commission’s ability to protect public safety

In 2016, an anonymous letter that claimed to be written by specialist staff at the CNSC was sent to President Binder and two environmental groups. The letter discussed five separate cases in which Commission staff did not share information about regulated facilities’ non-compliance or risk of non-compliance – information which might have called the safety of these facilities into question. The letter’s authors explained they wished to remain anonymous as they did not have confidence in available whistleblower protections.

The letter continued, "Our primary concern is that CNSC commissioners do not receive sufficient information to make balanced judgments," and that "because insufficient information is made available, other branches of government cannot make informed decisions."

Theresa McClenaghan, Executive Director of CELA, which received a copy of this anonymous letter from its authors, said she had no doubt it was written by CNSC staff and explained, "We are often very concerned that commissioners are not getting the full story from the proponents or the regulatory staff," and that "In the hearings, we really do see a frustrating amount of apologetics for the industry going on by staff." Shawn-Patrick Stensil, Senior Energy Analyst with Greenpeace Canada, the second organization to have received the letter, noted it illustrated how the culture at the CNSC was more conducive to supporting the nuclear industry rather than merely being an independent regulator of it.

President Binder’s attitude toward the letter was dismissive and he ridiculed its contents and belittled the authors by doubting their competency. While an internal investigation was ultimately conducted by the CNSC (despite the letter’s request for an independent investigation), it found there were insufficient grounds to support concerns made in the letter. No public comments were accepted by the Commission relating to their investigation. At least two expert nuclear safety engineers subsequently spoke out against the Commission’s handling of the concerns contained in the anonymous letter, calling the lack of an independent investigation ‘distressing’, and noting that the findings of the internal investigation ‘display an ignorance of basic safety principles”. The Professional Institute of the Public Service of Canada also released a statement in which it expressed concerns held by its members over President Binder’s attitude towards the letter as well as the CNSC’s investigation of its contents.

No external review of CNSC on the horizon

In 2016 the federal government established an expert panel to review impact assessment legislation in Canada. In its 2017 final report, the expert panel noted pervasive concerns amongst members of the public about the “regulatory capture” of the National Energy Board (NEB) and the CNSC, and apprehensions of bias which eroded public confidence in the ability of these agencies to conduct independent assessments. While the NEB has since been subject to a federal review which has included recommendations to better ensure its neutrality, the CNSC has not been subject to any corresponding review. In fact, the CNSC has since advocated for newer Small Modular Reactors (SMRs) to be entirely exempted from independent federal impact assessments.

In March 2016, 14 environmental organizations including Greenpeace Canada, Ecojustice, CELA, Lake Ontario Waterkeeper, Northwatch, MiningWatch Canada, and others wrote a letter, expressing concerns over the CNSC’s lack of independence and requested a federal review and subsequent reform of the NSCA. Again, despite this letter and the Expert Panel’s findings, no such review of the Commission, its statutory powers, or oversight has been promised or initiated by the federal government.


Relevant Dates

  • 2008: Linda Keen fired from the CNSC for exercising her statutory duty to protect the public safety and enforce CNSC licence requirements for a medical isotope producing facility. Since then, strong evidence has come to light indicating that the incident was used an excuse to fire Keen, who was intent on making CNSC regulations more stringent – against the interests and lobbying of the nuclear industry.
  • 2009: The CNSC’s new president Michael Binder is appointed to replace Keen. He immediately licences a new AECL reactor, requiring approximately half a billion dollars in federal funds.
  • 2009: President Binder attends a series of secret meetings with Bruce County Council and OPG and is recorded saying he “hoped their next meeting would be at the ribbon cutting ceremony for the [DGR]”.
  • 2009: The Sierra Club releases a report in which it issues a warning to the public concerning high levels of tritium in Lake Ontario. CNSC asserts the report is a product of “junk science” and that it is fundamentally flawed as it chose to “ignore the important benefits of nuclear technology”.
  • 2011: President Binder belittles and dismisses widespread concern about the shipment of radioactive steam generators through the Great lakes before a House of Commons Committee, asserting: “This is not about safety… this is about anti-nuclear.” And accusing those expressing concerns as “professional” anti-nuclear activists spreading “misinformation and scaring the hell out of people”.
  • 2013: Local residents of Kincardine receive confusing and intimidating visits from police asking about their intentions to participate in a public hearing for the DGR. OPG states the police were engaged by the CNSC, the CNSC refutes this.
  • 2013: The new Minister for the Environment Catherine McKenna refuses the JRP recommendation to approve the DGR and requires a more thorough review of the proposed project.
  • 2015: President Binder writes to the Quebec Minister of Environment, David Heurtel condemning a report by the BAPE that discussed environmental concerns over uranium mining. In his letter, he asserts, “the decision of the BAPE to continue questioning the scientific principles and the proven safety record of modern uranium extraction boils down to misleading the people of Québec and Canadians”.
  • 2016: An anonymous letter is sent to President Binder and other stakeholders claiming to be from CNSC expert staff. The letter discusses cases in which Commission staff did not share information which might have called the safety of these facilities into question and asked for an independent investigation into their concerns. The CNSC conducts an internal investigation into the letter, finding it baseless.
  • 2016: 14 environmental organizations write a letter to the federal government expressing concerns over the CNSC’s lack of independence and request a federal review and subsequent reform of the NSCA. To date, no such review of the Commission, its statutory powers, or oversight has been promised or initiated by the federal government.
  • 2018: CNSC public statements and letter against critics reaches a peak - between March and June 2018 alone, at least five such statements were published publicly refuting opinion letters or news articles expressing concerns over nuclear facilities.

Role or Position

Members of the public have long been concerned over the independence, transparency, and accountability of the CNSC. In 2008, the Commission’s President Linda Keen was fired for refusing to permit a licensed nuclear facility to operate, on the grounds that it failed to comply with the safety conditions specified in its licence. Since then, the CNSC and its new president Michael Binder, have systematically discredited critics of the Commission and nuclear industry, silenced the Commission’s own scientific staff, and actively sought to stifle public debate concerning potential health and environmental hazards of nuclear facilities and radioactive substances.

Implications and Consequences

  • Freedom of expression: When environmental organizations, Indigenous leadership, governmental agencies, concerned citizens’ groups, and others express concerns over the potential environmental and health impacts of nuclear facilities and radioactive substances, they are systematically discredited, vilified, and silenced. The CNSC’s restrictions on public debate concerning nuclear energy effectively weakens Canadian democracy.
     
  • Transparency: The CNSC decision-making process contains impediments to public participation, including access to information and mechanisms to test evidence. These impediments in turn limit the transparency of the CNSC’s decision-making process. Given the context surrounding the firing of Linda Keen, and subsequent actions by Michael Binder and the CNSC, there is cause to fear that private interests (namely the nuclear industry) have a considerable and disproportionate influence on the CNSC’s review of project applications, as well as their attitude towards any public criticisms of the industry or its regulator.

 

Date of publication: 29 January 2019
Photo Credits: Fred Lum, The Globe and Mail

 

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