Further to your letter of November 29, 2005, Lake Ontario Waterkeeper is submitting preliminary comments on the Canadian Nuclear Safety Commission's ("CNSC") Rules of Procedure and By-laws.
Waterkeeper supports the CNSC's vision of, "becoming one of the best nuclear regulators in the world." In our view, this vision confirms the public's belief that the CNSC is not currently a model regulator. Furthermore, we would encourage the CNSC to expand its vision and aim to be the best regulator in the world.
Regarding the By-Laws, Waterkeeper recommends amendments Section: 12, which states, "A member who participates at a meeting or in a decision of the Commission is deemed to have voted in the affirmative on any decision or action taken, or resolution or vote passed, unless the member enters a dissent or an abstention on the record." This Section is inherently flawed, in that it creates an assumption that every vote coming before the CNSC will automatically be approved. Further, this assumption in appropriately concentrates power in the hands of one or two more vocal and influential members. Waterkeeper recommends that Section 12 be amended to require every member to vote or abstain on the record, improving transparency and accountability.
Regarding the Rules of Procedure, Lake Ontario Waterkeeper has concerns and recommendations for Sections 3.(1), 5.(2) 6, 7.(2), 12, 18, 21.1(1), and Part 5.
Section 3.(1), which allows the CNSC to vary or supplement the Rules is too vague. The language should be amended to more clearly define the circumstances under which the CNSC can vary the Rules.
Section 5.(2) is particularly concerning, as it states that any participant who does not take full advantage of a procedural right is deemed to have waived that right. Such a rule is only appropriate in formal proceedings where participants are represented by counsel. In the interests of the public, this rule should be amended such that participants will be advised by the CNSC of their procedural rights and encouraged to take full advantage of them.
Section 6 states that time limits, "shall provide for as informal and expeditious a proceeding as the circumstances and the considerations of fairness permit." This Rule should be amended to ensure that participants are given ample time to provide comments, question other participants, address concerns, and offer improvements.
Section 7.(2) should be amended so that "must" becomes "should". The current language creates the possibility for documents submitted to the CNSC to be rejected due to a minor clerical error.
Section 12 deals with confidentiality. The issue is of particular concern now that more players in the Canadian nuclear industry are private companies. Waterkeeper refers the CNSC to the Guidelines for the Treatment of Filings made in Confidence published by the Ontario Energy Board. (Available online: http://www.oeb.gov.on.ca/documents/confidential_guidelines.pdf) This model provides a more thorough, transparent set of standards for dealing with confidential documents.
Section 18.(1)(b) unfairly requires participants to provide detailed written submissions to the CNSC 30 days in advance of a hearing. This rule negates the benefit of the 60-day notice. Statements of intent with an outline of the party's position and a general description of the information the party will provide, accompanied by a requested time allotment should suffice.
Section 18 in general does not reflect an appropriate scheduling process. The length of the hearing and the allotment of time to each party should be based on the party's needs, the public's interest, and the complexity or controversial nature of the subject-matter. Currently, the rules are arbitrary: for example, the one or two-day hearing models, the 10-minute allocations of time, and experiences such as the 17-hour hearing on Cameco Corporation earlier this year.
Section 21.(1) should be amended so that the CNSC "must" permit each participant to ask questions and respond to submissions. Further, all "information" presented at public hearings should be "evidence", given under oath.
Part 5 grants an opportunity for industry to appeal licence decisions, but no similar right is granted to members of the public who have participated in the hearing process.
Both the Rules of Procedure and By-laws are silent on the issues of lobbying and costs. Waterkeeper recommends that the CNSC develop rules for each of these.
Currently, there are a number of lobbyists on the Canadian lobbyist registry who focus their efforts on the CNSC (on the registry, "Atomic Energy Control Board"). Waterkeeper does not believe it appropriate for a regulator to be the subject of lobbyists.
Currently, there are no costs for members of the public who participate in sometimes complex, time-consuming regulatory processes. Particularly in cases where the application will result in economic development for corporations, the CNSC should encourage and reward public consultation. An example of cost-award guidelines is available on the Ontario Energy Board web site: http://www.oeb.gov.on.ca/html/en/industryrelations/rulesguidesandforms_regulatory.htm.
In addition to specific comments on the Rules of Procedure and By-laws, Waterkeeper has a few broader concerns about the CNSC and its public hearings.
Waterkeeper is concerned that the adjudicative functions of the CNSC are not separate from the administrative functions. The lack of separation may dilute the Commission's impartiality as a regulator.
Waterkeeper is also concerned that there is a financial incentive for private companies seeking licences, amendments, project approvals, etc. to participate fully. At the same time, there is a financial disincentive for members of the public who must travel to Ottawa, hire their own expert advice, and typically take time away from work and family to do so. Public hearings should be scheduled and located with this in mind, as should cost award guidelines.
Thank you for your consideration of our submission. Waterkeeper looks forward to the CNSC's formal amendment process.
Waterkeeper & President