Questions and Answer about the NSDF Hearing
What’s the decision that the CNSC must make?
The CNSC must issue a decision statement under section 54 of the Canadian Environmental Assessment Act, 2012 as to whether the designated project is likely to cause significant adverse environmental effects.
Environmental effects are defined in section 5(1) and 5(2) of CEAA 2012:
Environmental effects
5 (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are
(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
(iv) any other component of the environment that is set out in Schedule 2;
(b) a change that may be caused to the environment that would occur
(i) on federal lands,
(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or
(iii) outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage,(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
Exercise of power or performance of duty or function by federal authority
(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account:
(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and
(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage, or
(iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
What’s the CNSC’s authority to decide an EA?
Canadian Environmental Assessment Act, 2012 (“CEAA 2012”), designated the CNSC as a ‘federal authority’ for carrying out environmental assessments. CEAA 2012 has since been replaced by Impact Assessment Act (“IAA”), however, a number of projects started under CEAA 2012 remain active and under review of the CNSC.
How is an EA different than nuclear licensing?
Licensing is a regulatory process under the Nuclear Safety and Control Act
This is a narrower framework and not equivalent to impact/environmental assessment law, which requires an upfront examination of ecological, socio-economic and sustainability impacts spanning the duration of the project.
What should EA accomplish?
- Protect high value ecosystem health and public health
- Avoid or eliminate (significant) adverse effects
- Provide basis for sustainability into the future (framed as “sustainable development” since the Bruntland report Our Common Future)
- Avoid imposing costs on future generations
- Cost savings by avoiding “ill-conceived and unnecessary projects”
- Follow precautionary principle and other major environmental principles such as polluter pays and intergenerational equity
- Allow for creative and broadly supported solutions to the identified problems
- Refuse projects that benefit a few and impose costs on many
Blog: Day 1 – Hearing for Radioactive Waste Dump Commences for Chalk River Laboratories Site
Photo: Ottawa River, Ottawa, ON
* This is the first in a series of blogs by CELA’s summer law students, Rebecca Waxman and Adam Meadows, live from the CNSC hearing room. Check back every day as they share reflections and reactions from the nuclear licensing hearing. Read the full series here
PEMBROKE, ON – Canada’s nuclear regulator, the Canadian Nuclear Safety Commission (CNSC), has commenced a five-day public hearing to consider a request by Canadian Nuclear Laboratories to amend its nuclear research and operating licence for the Chalk River Laboratories site, to authorize the construction of a proposed near-surface disposal facility (NSDF) for low-level radioactive waste. Prior to granting the licence, the NSDF is required to undergo a federal environmental assessment (EA) under Canada’s predecessor EA legislation, the Canadian Environmental Assessment Act, 2012.
Central to this week’s hearing, is the urgency of finding a permanent solution to over 70 years of radioactive waste that currently sits at the Chalk River site, in surface level, interim storage. CNL has proposed the NSDF as the way to clean up the Chalk River Laboratories site, reduce federal nuclear liabilities, and house radioactive waste from new activities at the site. The estimated cost for the NSDF is $750 million. The disposal facility is proposed to be operational for 50 years and then enter a closure phase, where it would be under “institutional control” until released from institutional control by the CNSC..
The five-day hearing has consolidated the EA and licensing matter, with each day having a dedicated “theme.” The theme for Day 1 was “Environmental Assessment.” Throughout the day, the CNSC heard from 17 industry, government and public interest intervenors. Each intervenor was allocated 10 minutes to present their oral remarks. The proponent, CNL, and the Commission’s Staff, have oral submission opportunities to start each of the five-days of hearing – causing public interest intervenors to question the balance of procedural rights.
On Day 1, the Canadian Environmental Law Association (“CELA”) appeared before the Commission. “The CNSC has been tasked with making a determination as to whether or not the NSDF project is likely to cause significant adverse environmental effects,” noted legal counsel Kerrie Blaise. “CELA and our experts found substantive deficiencies in CNL’s EIS’s, including their consideration of the purposes of CEAA 2012 and the factors that must inform an EA. Because of significant information gaps, and a failure to address the scientific uncertainty pertaining to the proposal, we have argued that the CNSC can only find that the project will cause significant adverse environmental effects.”
CELA also communicated their concern about CNL’s failure to devote appropriate attention to retrievability in the design of the project, especially considering the long-lived nature of the radionuclides destined for the mound and the potential for environmental contamination. As CELA had set out its written submission, CNL’s final EIS must incorporate a discussion about how the NSDF’s disposal cell system will be designed to ensure that present and future generations will be able to retrieve the waste.
“It would be unjust to shift the burden of considering retrievability on future generations who have neither created nor benefited from the any activities that created this inherited waste,” noted CELA’s sustainability expert, Dr. Tanya Markvart. “CNL ought to have examined retrievability, to lessen the already toxic burden on future generations, should there be a need to access the stored nuclear waste for whatever reason, including to undertake repairs or monitoring.”
The Sierra Club Canada Foundation (“Sierra Club”) was also among the Day 1 intervenors, and raised several concerns over the proposed NSDF that will remain toxic for hundreds of years. The group referenced the CEAA 2012 requirement to assess alternative sites for large scale proposals, outlining the concern over the current site plan. Throughout the day, many other intervenors raised similar concerns over the proximity of the proposed NSDF to the Ottawa river– a water source for millions of Ottawa residents. Groups questioned why this site was selected for the proposed NSDF, given the potential risk it poses to the Ottawa River watershed.
Excerpt from the slides of the Sierra Club of Canada
Another theme which ran strongly throughout the day was the issue of low level waste classification and its safe disposal. The Sierra Club raised concerns about cobalt-60 and tritium, two radionuclides to be disposed of in the NSDF, which could be defined as intermediate level waste by definition. As they noted in their presentation, “Disused cobalt-60 sources are dangerous and require lead shielding. CNL seems intent on putting large quantities in the NSDF even though the IAEA [International Atomic Energy Agency] considers them intermediate level because of their intense radioactivity.”
Further concerns of the risks posed to the watershed were raised as the day progressed. The Ottawa Riverkeeper questioned several of the monitoring methods and called for more stringent standards to protect the Ottawa River, to ensure it can continue to safely provide 5 million citizens with safe drinking water. The group proposed adding safeguards such as including more stringent wastewater treatment protocols, including monitoring to include chemical waste, as well as requesting independent reviews of the monitoring program for the duration of the NSDF’s operation.
Tomorrow, the hearing will continue and you can tune in live online.
Questions and Answer about the NSDF Hearing
What’s the decision that the CNSC must make?
The CNSC must issue a decision statement under section 54 of the Canadian Environmental Assessment Act, 2012 as to whether the designated project is likely to cause significant adverse environmental effects.
Environmental effects are defined in section 5(1) and 5(2) of CEAA 2012:
Environmental effects
5 (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are
(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
(iv) any other component of the environment that is set out in Schedule 2;
(b) a change that may be caused to the environment that would occur
(i) on federal lands,
(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or
(iii) outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage,(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
Exercise of power or performance of duty or function by federal authority
(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account:
(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and
(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage, or
(iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
What’s the CNSC’s authority to decide an EA?
Canadian Environmental Assessment Act, 2012 (“CEAA 2012”), designated the CNSC as a ‘federal authority’ for carrying out environmental assessments. CEAA 2012 has since been replaced by Impact Assessment Act (“IAA”), however, a number of projects started under CEAA 2012 remain active and under review of the CNSC.
How is an EA different than nuclear licensing?
Licensing is a regulatory process under the Nuclear Safety and Control Act
This is a narrower framework and not equivalent to impact/environmental assessment law, which requires an upfront examination of ecological, socio-economic and sustainability impacts spanning the duration of the project.
What should EA accomplish?
Rebecca Waxman is a JD Candidate (2024) at the Schulich School of Law at Dalhousie University. She has a strong interest in environmental and administrative law and is currently Co-Chair of Dalhousie’s Environmental Law Students’ Society. Rebecca’s summer role at CELA is generously funded by the Schulich Academic Excellence Internship program.
Adam Meadows is a JD Candidate (2023) at Osgoode Hall Law School. He has a particular focus in Indigenous and Environmental law, recently completing an Intensive Program in Indigenous Lands, Resources, and Government at Osgoode.
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