End of the Legal Line

IR 2002-04
March 13, 2002
Supreme Court of Canada Will not Hear “Nuclear Waste” Appeal

The Supreme Court of Canada announced late last week that it would not hear an appeal from the Inverhuron and District Ratepayers’ Association (IDRA). The IDRA had sought to appeal previous rulings the Federal Court of Canada and the Federal Court of Appeal made against the volunteer community group and in favour of Ontario Power Generation (OPG), Atomic Energy Control Board (AECB), the Minister of Fisheries and Oceans and the Minister of the Environment. The Supreme Court gave no reason for refusing to hear the appeal.

“Of course we’re disappointed,” said Normand de la Chevrotiere, President of the IDRA. “This brings us to the end of a very long legal road that has taken a huge toll on our community.”

The IDRA litigation focused on a nuclear waste storage facility, the world’s largest to date for highly radioactive used fuel bundles. The facility is now being built by Ontario Power Generation at the Bruce nuclear site in Inverhuron, Ontario, on the Lake Huron shoreline. The IDRA argued that the design of the facility was never rigorously studied by OPG or AECB.

In fact, the design originally submitted by OPG for public comment and regulatory approval by AECB was changed by OPG during the public comment period, without informing the public. The federal regulator, AECB, noted at the time that the design changes were “major” and told OPG that these changes would require further public comment and study. OPG responded to AECB in a letter pointing out that “further review through the Canadian Environmental Assessment Act process would put the in-service date (of the waste facility) at risk.” No further public comment or study occured and, ultimately, the AECB granted a license to OPG to build the facility.

Litigation Process Begins with Surprise
“We only discovered the design changes and the paper trail of letters between OPG and AECB when the litigation process started and certain documents became available,” said de la Chevrotiere. “Frankly, we saw it as a kind of ‘bait and switch’ in which OPG presented a design for the Bruce site to the public and to AECB and then changed a number of critical components of the design without telling us.” OPG asserted to AECB that the effects of the new design would be within the range of the results expected by the original design. “Given the extent of the changes and the fact that there appeared to be no detailed study on the new design, we wondered how OPG could make this assertion,” said de la Chevrotiere.

The volunteer group was also concerned that the design changes could have a negative impact on public health. To underline that this concern was not without reason, the IDRA commissioned an affidavit by U-S cancer expert Dr. David Hoel who examined the significance of a previous AECB study. That study indicated that levels of childhood leukemia deaths were well above provincial average in the populations around the Bruce and Pickering nuclear plants. However, the Federal Court of Canada did not allow the affidavit to be introduced into evidence, in large part because of a late filing by the IDRA.

Rulings and Cost Awards
In rulings against the IDRA handed down in 2000 and 2001, the Federal Court of Canada and the Federal Court of Appeal each said that the court was not an “academy of science” and was not equipped to rule on the technical and scientific arguments the IDRA had presented. Both rulings included awards of costs against the IDRA totaling some $70,000, to be paid to OPG and the federal government. In deciding not to hear an appeal, the Supreme Court of Canada awarded further costs against the IDRA, as requested by OPG.

IDRA was notified yesterday that OPG’s lawyers are now seeking payment of OPG’s cost awards, with interest. It is not known at this time if the federal government will seek to enforce their cost awards, and if so, to what extent.

Concerns Remain
In its application to the Supreme Court, the IDRA lawyers argued that the case raised issues of public health, the academy of science argument, significant access to justice issues for citizen groups and “the important question whether environmental assessment legislation requires proponents to provide relevant and recognized scientific data to support the predictions they make about the environmental effects of a particular project.”

“These decisions don’t lessen our concern that the design changes could potentially have a serious impact on our community, our children, workers in the plant and our environment in general,” said de la Chevrotiere. “We know Canada has a huge problem with storage of deadly radioactive waste materials. Ottawa has not been able to come up with a permanent solution to nuclear waste storage, and the piles of highly radioactive used fuel keep growing bigger at Bruce. We just asked for an independent environmental assessment of OPG’s new plans. We’re trying to cope with living next to this waste facility and trying to do the best that we can for our children and their children’s children. What more could be reasonably expected of a volunteer citizen’s group?”

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