Four weeks ago I started articling with Lake Ontario Waterkeeper. Articling is a 10-month apprenticeship that law students must complete after law school before becoming lawyers. One of my first projects at Waterkeeper is the Darlington relicensing process.
In case you haven’t heard, OPG is asking the Canadian Nuclear Safety Commission (CNSC) to renew the operating license for its Darlington Nuclear Generation Facility for another 13 years. Darlington’s plan is to replace their four reactors during this time so the plant can run until 2055.
One thing that law school impressed upon me was the importance of the process that surrounds legal decision making. If we want “decisions” to be fair, it is necessary to have a decision making process that is fair. What do I mean by process? I mean the collection of rules that govern how a court or decision making body operates. These include procedural and evidentiary rules which control who can appear before a court, what evidence they can present, and how that evidence can be “tested” by the opposing side.
Think of criminal law. In a criminal trial, evidence is collected by having witnesses provide their testimony, under oath, to the judge. Generally, witnesses can only state facts. “I saw x, I heard y.” They cannot give opinions. Experts are allowed to provide opinions, but only after they demonstrate to the court that they are duly qualified to do so. After a regular witness or expert is called by one side they can be cross-examined by the other. Cross-examination allows the opposition to ask the witness questions about their testimony. It is a vitally important process, almost like a form of quality control. The court has a chance to gauge the reliability of the evidence, since cross-examination tends to explore weaknesses, inconsistencies and gaps in a witness’s testimony, or expert’s conclusions.
I mention all of this to provide some context. We all know that criminal law has serious consequences. A guilty sentence can mean years in prison. This is why there are evidentiary rules to try and ensure that judges ground their decisions in reliable evidence.
Approving the refurbishment of a nuclear power plant is a major decision.
After Fukushima, regardless of your stance on nuclear, you will likely agree that nuclear power plants have the potential to pose serious risks. This is particularly true for the Darlington site, given its location, 60 km from downtown Toronto and right next to Lake Ontario – which provides drinking water to 9-million people.
August 19th was Day One of the CNSC’s ‘Two Day’ process for relicensing the Darlington Nuclear Power Plant. The terminology is a little confusing. The Day One hearing took less than a day – it began around 1:45pm and was over before 6:30pm. The hearing began with a presentation by the owner of the power plant (Ontario Power Generation, or “OPG”), followed by a presentation by the CNSC staff, and ended with questions from the panel members. The Day Two hearing will take place over a four day period in November. It will allow NGOs and members of the public to make short presentations about any concerns they have with the project.
Last Wednesday, the CNSC streamed the Day 1 hearing on their website. I was curious, would the structure of the hearing reflect the gravity of the decision being made?
The hearing began with an hour long presentation by OPG. They showed three short videos (mostly non-technical, with upbeat music and professional sounding narration), spoke of the plant's excellent operational record, and mentioned a number of reports demonstrating that the plant would continue to run safely. None of the statements were made under oath and none of the presenters established their expertise.
Next came the CNSC staff's presentation, which felt eerily redundant. It supported almost all of OPG’s claims, reviewed for a second time the location of the plant, its excellent operating record and suitability for refurbishment. The presentation concluded by recommending that the decision making panel relicense the plant.
This felt strange to me. What is the purpose in holding a hearing when both parties relay the same message? Perhaps the CNSC staff have rigorously examined OPG’s proposal and been unable to find any real concerns. But why were there a dozen intervenors who raised concerns about the project’s potential impact on the environment or public health during the Environmental Assessment process? Surely this indicates that there are some live issues to consider. If the CNSC staff are not willing to voice these concerns why not have a participant who is? Wouldn't it be helpful to have an independent party cross-examine OPG during the hearing? If there are any weaknesses in their proposal, or inconsistencies in the studies they rely on, shouldn’t this be explored in front of the decision making panel?
After the two presentations the panel members asked questions about the project. At times, it almost felt as if they were looking for assurance. Near the end of the hearing Dr. Binder, a panel member and the CNSC president said “I just want the record to make sure that there will be – in the refurbishment there is no more room for surprises, for unknown alpha, beta, neutron, any other isotope, that you would not surprise us.” It struck me as odd, but I couldn’t quite say why. Of course the panel members don’t want to be ‘surprised’. Of course they want to assure themselves that the project is a good one before approving it. But what felt strange was how assurance was sought; by asking the folks who were advocating for the project if some aspect of it was in fact well-planned, safe or feasible.
I think it is important for Canadians to ask: do we feel assured that this process will lead to good decisions? We don't convict someone of a crime unless the evidence against them withstands scrutiny. Witnesses can be cross-examined, experts must be qualified and their conclusions need to be explained. So I’ve been wondering, why approve a nuclear power plant without taking similar precautions?