On June 4th, 2002, Mrs. Cait Maloney, Director General of the Directorate of Nuclear Cycle and Facilities Regulation, Canadian Nuclear Safety Commission (CNSC) responded to questioning before the Standing Committee on the Environment and Sustainable Development in Ottawa.  Her appearance was requested by the Committee Vice Chair in response to concerns raised by Committee members.  The concerns arose during testimony by Normand de la Chevrotiere of the Inverhuron and District Ratepayers' Association (IDRA) and Environmental Defence Canada (EDC) lawyer Rodney Northey. 

The testimony of de la Chevrotiere and Northey suggested that Ontario Hydro (now Ontario Power Generation - OPG) and Atomic Energy Control Board (now CNSC) side-stepped public process in licensing construction of a high level nuclear waste storage facility at the Bruce nuclear site.  According to de la Chevrotiere and Northey, neither Hydro nor AECB gave public notice of "major changes" to the project design.  (see Bruce Centre IR 2002-09 ) 

Questioned by Windsor-St. Clair MP Joe Comartin, Mrs. Maloney denied that any change had been made to the design of the proposed high level waste storage facility (Dry Storage Project - DSP) at the Bruce nuclear site during the public comment period process of licensing of the facility.  (The DSP is expected to soon go into operation as “short term” storage - 50 to 80 year - of used nuclear fuel from the Bruce nuclear reactors, the most toxic substance known to humanity. Long term storage is considered to be 10,000 years and more.) 

The following statement, and all other statements quoted from the proceedings in this document, are taken from the unedited, unofficial transcript (or "blues") of the hearings: 

Mr. Joe Comartin:  Ms. Maloney, I think the aspect of the brief that we got from the Inverhuron ratepayers group, the most disturbing to myself was that the design changed midway through. I think specifically in August of 1998, Hydro told the then AECB that it would use the Pickering design. The environmental agency said that they would publish a notice, which they in fact never did, of that design change. 

First of all, are you aware that there was a design change midway through the public consultation process? 

Mrs. Cait Maloney: In fact, there was not a design change. Both those designs were available in the public documents at the time.

In the letters, both the operator and regulator would appear to acknowledge that public notification and comment should occur. The correspondence between Hydro and AECB surfaced during the discovery phase of Federal Court proceedings between the Inverhuron and District Ratepayers’ Association and respondents (Ontario Power Generation Incorporated, Atomic Energy Control Board, Ministry of Environment, Ministry of Fisheries and Oceans) in 1999.

What follows are excerpts from the chain of correspondence.  A copy of this information release and complete copies of the correspondence with summary comments can be found at the web site of the Bruce Centre for Energy Research and Information. http://www.friendsofbruce.ca/LetterTrail/Paper_Trail.html

The Letters
1.  October 9, 1998:   Hydro Acknowledges Changes and Promises Public Notification 
Letter from Ken Nash, Vice President, Nuclear Waste Management, Ontario Hydro to Mr. Don Howard, Wastes and Decommissioning Division, Atomic Energy Control Board (AECB). 
The letter describes a new design for the Bruce nuclear site Dry Storage Project.  The new design contains a number of significant differences when compared with the design option that had originally been studied and proposed by Hydro to AECB. Nash assures AECB that Hydro will make the changes known to the public as part of the required public process: “The new system design will be communicated to the public in BUFDSP Newsletter #6.”
No such communication occurred. 

2.  December 18, 1998:  AECB acknowledges Changes Should Key further Public Consultation
Letter from Bernard Richard, Program Analyst, Radiation and Environmental Protection Division, Directorate of Environmental and Human Performance Assessment, AECB to Mr. Cliff Barua, Commercial Chemicals and Nuclear Programs Section, Environment Canada: 
“The proponent, Ontario Hydro, has concluded their design system study and has indicated three major design changes:” 
Mr. Richard lists the three major changes and concludes that:
“The Atomic Energy Control Board, as the responsible authority for this project, in consultation with the Canadian Environmental Assessment Agency and the proponent (i.e. Hydro), has determined that a further public consultation period was warranted.  The intent would be to provide the public with information on the above-mentioned design changes and to address the concerns expressed during the initial public consultation period.” 
Three similar letters were sent at about the same time from the AECB to other government departments.

3.  January 25, 1999:  Hydro asks that no further Public Consultation on the Changes take place
Letter from Ken Nash, V.P., Ontario Hydro to Mr. Don Howard of AECB.  Nash asks AECB to intercede with the Canadian Environmental Assessment Agency to expedite approval of the construction phase of the Dry Storage Project without further public consultation: 
“The purpose of this letter is to request that the AECB formally request the Canadian Environmental Assessment Agency (CEAA) to proceed with completion of the recommendation process for Ontario Hydro’s proposed Bruce Used Fuel Dry Storage Project, leading to a decision by the Environment Minister as soon as possible.  As recently discussed with you and other staff of the AECB, the environmental assessment (EA) and licensing process is now on the project critical path.  The in-service date of July 2002 is essential to support the continued operation of the Bruce nuclear units.  Further review through the CEAA process (i.e.: public consultation) would put the in-service date at risk.”
Mr. Nash goes on to promise that Ontario Hydro “…undertakes to provide an additional (public) information document by February 28, 1999…”

4.  February 25, 1999:  Hydro puts conditions on its Public notification: presses AECB to pursue license without public notification : 
Letter from Ken Nash, V.P., Ontario Hydro to Mr. Don Howard of AECB.  Nash includes a copy of the promised February 28th information document (see above).  However there is a condition attached to the publication of the document. 
“A copy of this document is enclosed for the AECB’s information on the explicit understanding that Ontario Hydro will issue the document only after the CEAA process has been completed.” 
In other words, Ontario Hydro will issue the information document to the public only after the entire process is complete.  The document was released to the public over two months after the Minister of the Environment approved the project. 

5.  March 8, 1999:  AECB Gets the Message, By-passes Process and Fast Tracks Licensing of DSP
Letter from Don Howard of AECB to Ms. Marie-France Therrien of the Canadian Environmental Assessment Agency. 
“After careful review of the public comments, it is still the conclusion of the Atomic Energy Control Board that all potentially significant direct and cumulative environmental effects of the proposed project have been adequately identified and addressed in the Comprehensive Study and that the above-mentioned effects can be successfully mitigated through the application of proven engineering technology and environmental management practices.”

6.  March 31, 1999:  The matter is “Sent Upstairs” to the Minister of Environment.
Memorandum to the Minister of Environment, the Hon. Christine Stewart, from Sid Gershberg, President, Canadian Environmental Assessment Agency. 
Gershberg recommends the Minister inform the President of the Atomic Energy Control Board, Dr. Agnes J. Bishop, that : 
“…you have concluded that the project is not likely to cause significant adverse environmental effects and that you are referring the project back to the AECB for action under subsection 37(1) of the Canadian Environmental Assessment Act…(i.e.: licensing) 
“If you accept this course of action, a letter to Dr. Bishop has been prepared for your signature.” 
The minister signed the letter on April 14, 1999 and effectively the license for construction was granted without further public communication or comment under the Canadian Environmental Assessment Act. 

Again, complete copies of the complete letters with summary comments may be seen on the Friends of Bruce web site, http://www.friendsofbruce.ca/LetterTrail/Paper Trail.html

During the June 4th hearing of front of the Standing Committee on Environment and Sustainable Development, Committee Vice Chair, Liberal MP Karen Kraft Sloan, zeroed in on Hydro's failure to issue public notice (see points 3, 4 and 5, above). 

Karen Kraft Sloan:  ...We're talking about a new period of public comment--and there was also a requirement to disseminate new design information to the public. I'm wondering why that did not happen.

Mr. Larry Chamney (CNSC):  There was no agreement for that. There were discussions between agency staff and CNC staff as to the extent of public comments received and it was established that the existing documentation in the comprehensive study report was adequate.

Mrs. Karen Kraft Sloan: But if the proponent was willing to send out this information in this newsletter, why was it then--I have, on one hand, information that is telling me that the agency and AECB agreed to a new period of public comment and that new design information be disseminated to the public, so we have two different sides to a particular story here. But if the proponent had said it was willing to send out a newsletter with this information in December, then why wasn't it done?

Mr. Larry Chamney: The proponent conducts its public consultation and public information program continuously. It was used as part of the consultation on the comprehensive study, but it existed prior to the project and it exists today. It uses newsletters to advise the local communities of issues of importance to its facility. That was the purpose of the newsletter. The purpose of the newsletter was not to input into the comprehensive study report. That was a matter between the agency and the CNC staff.

      Mr. Gary Lunn: ...I'll just get down to one real brief question for Mr. Northey, and I had a few others.
      Basically this all comes down to as I see it and you've correctly outlined a number of discrepancies from
      the testimony of the Nuclear Regulatory Safety Commission. I sense the frustration throughout this
      whole process for your client, Mr. Chevrotiere (Inverhuron and District Ratepayer's Association - IDRA) ,
      that there was never a panel review. Is that a fair statement? 

      Mr. Rodney Northey: Yes. 

      Mr. Gary Lunn: I mean they (Inverhuron and District Ratepayer's Association - IDRA) weren't actually
      opposed to the project, they wanted a panel review to ensure they were getting the best technology, that
      the best processes were used to ensure they were doing it the very safest way for the protection of not
      only environment but also the residents of that area. 

      Mr. Rodney Northey: I think that's a very apt description. The way I put it is it's a world class scale
      facility, it deserves a world class scrutiny. 

The volunteer community group, Inverhuron and District Ratepayers Association (IDRA), under went 7 years of participation in public processes and litigation (including cases heard in the Federal Court and Federal Court of Appeal - the Supreme Court refused to hear an appeal).  The IDRA sought further information on the changes, as well as an independent expert and complete environmental assessment (EA).  The community group argued that an independent EA was clearly provided for under the Canadian Environmental Assessment Act, given the scope of the project alone.  The uncertainty surrounding the design changes should have absolutely brought about the independent environmental assessment, as described in the Act. 

In written judgments, both the Federal Court and Federal Court of Appeal said the court was not "an academy of science" and was not qualified to rule on the matter.  Nearly $100,000 in costs were awarded by the three courts (including the Supreme Court) against the IDRA in favour of the federal government and OPG.  The IDRA also incurred significant legal costs. 

During previous testimony, the Standing Committee Vice Chair of the day, Mr. Bob Mills, Canadian Alliance, Red Deer, expressed his incredulity over the process the IDRA was forced to endure.

The Vice-Chair (Mr. Bob Mills (Red Deer, CA) : I'm just following along on my colleague's comment. Again, I guess it seems kind of unbelievable to me that something of this magnitude...and as Mr. Reed said, once the 50 years is up, then they may apply for 100 years or whatever unless of course the technology becomes available to actually destroy these wastes. And I'd like to follow up on that, too. It would seem to be in all of our interests if we could do something about that. You mentioned the technology, that there is some work being done on it. 

But the real thing is the insignificance of cancer to those proponents, to those people who live there, those residents just can't be underestimated. It would seem to me that getting all of the facts on the table would have to be to your best interest, would have been to the power plant's best interest, to everybody's best interest to just have the review, look at the health situation, because as soon as you avoid a review it seems to me that you are trying to hide something and that you are in fact helping to hide what the residents of the area think may or may not happen to them. I'm no expert on that. I don't know.... But it would just seem to me it would have been in the best interest to have that review and I wonder why you fought them so hard through the court system. 

Normand de la Chevrotiere, President of the IDRA can be reached (519) 742-0730