April 11, 2002
Re: FEAI #: 30619
Title: Draft Scope of the Environmental Assessment for the Port Hope Long-Term Low-Level Radioactive Waste Management Project
This submission is made with respect to the above-noted request for public comments on the Draft Scope of the Environmental Assessment for the Port Hope Long-Term Low-Level Radioactive Waste Management Project on behalf of Lake Ontario Keeper and Energy Probe.
Lake Ontario Keeper and Energy Probe are charitable organizations representing individuals in communities throughout Canada, and both are projects of Energy Probe Research Foundation. Lake Ontario Keeper works to protect Lake Ontario and the interests of the communities in its watershed through the enforcement of environmental laws. Energy Probe is a research-based consumer, environment and energy public-interest group with a long history of involvement in nuclear issues and radioactive contamination in the Port Hope and Port Granby region.
In response to the Draft Scope, Lake Ontario Keeper and Energy Probe request that the following considerations be made:
1. That the Responsible Authorities request the Minister of Environment refer the EA to a review panel in accordance with Section 25(a) and (b) of the Canadian Environmental Assessment Act;
2. That all restrictive pre-conditions be removed from the Draft Scope; and,
3. That the scope of the assessment be expanded to explore key issues of concern in the Port Hope region.
1. Request for referral to a review panel under the Canadian Environmental Assessment Act (CEAA)
The description of the Port Hope Project Environmental Assessment (EA) found in the Draft Scope raises a number of concerns regarding the ability of the process to "achieve or maintain a healthy environment" - one of its primary functions as stated in CEAA Section 4(b).
Factors which restrict the EA's effectiveness include:
A. The EA is limited to the preparation of a screening report. This process is the lowest level of due process possible under CEAA.
B. Independent review and decision-making elements are absent. This is significant because the Port Granby Project funder (NRCan), project overseer (CNSC), regulators (NRCan, DFO, CNSC), proponent (LLRWMO), and Responsible Authorities who ensure a sound process and assess environmental impacts (CNSC, NRCan, DFO) are all representatives of the same body (the Federal government).
In our extensive experience in the assessment of the impacts of nuclear undertakings - including those involving nuclear wastes - independent panels and the public as a whole consistently take a rather different view of these impacts than officials of CNSC, governments, and nuclear utility companies.
Indeed, our most recent experience with an independent panel review of a nuclear undertaking - the so-called "Seaborn Panel" review of the federal government's concept for deep geological disposal of high- level radioactive waste - showed that such panel reviews have the potential to make rather large steps away from nuclear-establishment's "business as usual" approach and toward the kind of wisdom that we must develop to deal properly with nuclear materials.
The nature of the material in question (i.e., radioactive waste) and the gravity of the concern shared by members of the Port Hope community regarding its past, present, and future effects create a strong argument in favour of referring the EA to a review panel under Section 25(a) and (b) of CEAA.
We would also like to note that an Ontario hazardous waste siting project such as the Port Hope Project would ordinarily require a Certificate of Approval from the Ontario Ministry of Environment and be subject to a Part V hearing pursuant to the Ontario Environmental Protection Act (EPA). In this case, however, the Federal government has claimed jurisdiction over nuclear waste, thereby exempting itself from this process.
This exemption significantly reduces applicable standards for assessing and mitigating adverse environmental impacts of the project, since even the most stringent process for environmental review pursuant to the CEAA does not meet the lowest standards of Ontario's EA requirements.
Section 3.3 of the Draft Scope notes that the Ontario Ministry of Environment (MOE) will not apply EPA requirements to the project but does not provide the opinion or reasons for that decision. This decision contradicts the Ontario government's earlier position, as outlined in a 1994 letter by Minister Bud Wildman to Mark Mattson, lawyer for Energy Probe. Responding to questions about the Federal government's intent to locate high-level nuclear waste in Ontario, Minister Wildman states:
We share your concerns about the limitations of the federal environmental assessment process . . . [T]he most rigorous examination of any proposal would be required in Ontario before any decisions are made.
Minister Wildman's application of Ontario standards to radioactive waste is not without precedent - traditionally, Ontario's EPA also encompassed radioactive substances:
Waste disposal is traditionally a provincial concern. An argument could be made that the AECB's jurisdiction extends to approving designs for waste disposal sites and giving licences to approved designs; but that construction and operation of the sites are within provincial jurisdiction. If so, s. 33a, b, and c of the EPA would apply - a public hearing must be held where a hazardous waste site is to be established or extended. Hazardous is defined in Regulation 824 under this Act to include radioactive substances. Regulation 824 gives no standards for the management of radioactive waste sites. (Estrin, David and John Swaigen. Environment on Trial, (1978). Page 306, Footnote 99.)
There is precedent, therefore, for the province to assume a role in the disposal of radioactive waste and for such a project to be subject to standards higher than those in the Draft Scope for the EA screening. While the Ontario government has not yet declared its interest in the Port Hope Project, the potential impacts of the project, the concerns arising within the community, and the precedents set by previous radioactive waste projects should compel federal Responsible Authorities to adopt a framework more likely to reflect due process and fairness.
By invoking the most stringent level of due process under CEAA, the Port Hope Project EA is more likely to incorporate quasi-independence, public accountability, and transparency.
2. The impact of pre-conditions on the proposed Environmental Assessment (EA)
One of the primary functions of the EA is to "encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment." (Canadian Environmental Assessment Act, Section 4(b)). A number of pre-conditions built into the Draft Scope, however, severely limits the potential for the Port Hope Project Environmental Assessment to satisfy this function.
Pre-conditions included in the Draft Scope limit the ability of the EA process to fully evaluate the impacts of the project. They also restrict the likelihood that the analysis conducted can be used to design the most environmentally, economically, and socially beneficial/appropriate project possible.
These pre-conditions include:
A. The lack of a proper review of alternatives to the project, or need; and,
B. The assessment methodology.
A. Lack of a proper review of alternatives, or need
Section 5.0 of the Draft Scope states that alternatives to the Port Hope Project will not be factors in the screening and defends this omission by reminding us that efforts over the course of the last thirty (30) years to find suitable alternatives have been unsuccessful. While a review of alternatives is not essential to the assessment of the potential physical impacts of the Port Hope Project itself, such a review is critical to the decision-making process by which such a project is approved.
In effect, the Port Hope Project as outlined in the Draft Scope is treated as a fait accompli and the EA as a mere formality. To protect community, environmental, and economic interests, the Draft Scope should be expanded to include criteria for assessing whether the Port Hope Project should proceed at all.
The Draft Scope document addresses the "Historical Context and Need for the Project" in section 6.2, beginning on p. 7. That section suggests that the need for the project flows from the failure of earlier processes - specifically the Low-Level Radioactive Waste Siting Task Force - to find a willing host community outside of Port Hope. But that history neither establishes the need for this project, nor does it suggest that this project is acceptable.
Briefly, that history is as follows: The federal government and its federal Crown Corporation, Eldorado Nuclear Limited, proposed to site a new radioactive waste disposal facility near Port Granby, and established an Environmental Assessment Panel to review several alternative sites. In response to intense political embarrassment, the federal government canceled the EA process entirely and established the Low-Level Radioactive Waste Siting Process Task Force, to examine "less confrontational" ways to site such facilities. That Task Force provided specific process guidelines, based on relatively modern principles of voluntarism and informed consent. For example, those guidelines - which were subsequently adopted by the Federal Government in the establishment of the subsequent Low-Level Radioactive Waste Siting Task Force - ensured that no Town Council could accept a radioactive waste repository on behalf of its citizens without its citizens endorsing that acceptance in a referendum or similar process. After fourteen (14) Ontario communities expressed initial interest in entering the process as candidate host communities, thirteen (13) of the fourteen (14) withdrew from consideration, and one (Deep River) accepted on terms so unreasonably demanding that the Federal Government refused to conclude an agreement.
That history (a) committed Canada to modern and enlightened principles of voluntarism and informed consent and (b) established that no Ontario community was willing to voluntarily host these wastes without a level of compensation that the Federal Government was unwilling to provide. That history clearly does not establish that the citizens of Port Hope have volunteered or consented to site such a repository, but it does strongly suggest that the present contract between Port Hope and the federal government - an agreement that has not been tested or endorsed by the citizens of Port Hope in a referendum or similar process - cannot be considered a legitimate basis to proceed in a modern democracy like Canada.
In the absence of any legitimate evidence of voluntary and informed consent by this community to this facility - legitimate as judged by the Federal Government's own standard, as set out in the Task Force process - it is absurd to argue (as the Draft Scope proposes) that that process proves the need, or the acceptability, of this process. And the decision to further deny the citizens of this community access to an independent EA review panel seriously compounds that affront.
Of course, it is entirely possible that the citizens of Port Hope would join their compatriots in the rest of Ontario in withholding their informed consent to these waste facilities. Such an outcome obviously points to the need to search harder for alternatives to this project - whether by way of additional environmental protection or additional compensation or in other ways. By totally avoiding the discussion of alternatives to this process, this screening review gets us no closer to a legitimate solution to the problem.
B. Assessment methodology
By addressing only incremental harm arising from the Port Hope Project and not addressing the effects fifty (50) years of radioactive waste have had on the region, the EA will not objectively define "healthy environment" and is therefore restricted in its ability to achieve or maintain such a goal.
Furthermore, this approach relies on current conditions to provide a baseline for determining environmental impacts and governing the project's course of action. Since the health of the citizens of Port Hope and their environment are questionable, and on the basis of active dispute between local citizens groups and the federal government, this baseline is insufficient.
The decision to leave the radioactive waste in the Port Hope community - and the resulting suggestion that current environmental conditions are acceptable standards - also curtails the ability of the Port Hope community to seek full redress for damages that may already have been inflicted on it by the siting of nuclear waste in the region.
By building these pre-conditions into the Draft Scope, the Federal government and the Canadian Nuclear Safety Commission (CNSC) - its designated representative for regulating the use of nuclear energy and materials - decided without full public consultation that the Port Hope community is the best permanent site for the radioactive waste without evidence to demonstrate the validity of such a decision.
Accordingly, the Environmental Assessment for the Port Hope Project can be of limited comfort to the community of Port Hope unless it takes into account a review of alternatives, the need for the project, and the historic impacts of nuclear waste in the region.
3. Scope of the assessment
The scope of the assessment proposed in the Draft Scope requires increased specificity in order to ensure that key issues important to the community of Port Hope are explored.
A. Environmental Effects of Radioactive Waste in Port Hope Harbour
The most complete and up-to-date public study of radioactive waste in the Port Hope Harbour is found in the Port Hope Harbour Remedial Action Plan Stage 1: Environmental Conditions and Problem Definitions, published in 1990. The RAP report was prepared by a Steering Committee and a RAP team, which included representation from Environment Canada, Environment Ontario, Health and Welfare Canada, and the Low Level Radioactive Waste Management Office. (Pg. vii - viii)
The RAP report discusses the 90,000 cubic meters of sediments located in the Port Hope Harbour prior to some small remediation efforts during the 1990s. The sediments were found to be contaminated by uranium and thorium series radionuclides, as well as heavy metals and PCBs. The contamination was believed to be the result primarily of waste management practices associated with radium and uranium refinery operations in the town of Port Hope. (i-ii) Other studies have indicated that contamination is also discharging from the Harris Ponds (located on private property on Bedford Road in Port Hope) that drain into the Ganaraska River in Monkey Mountain waste site discharges.
Impact on fish
The 1990 RAP report found levels of radionuclides in Port Hope Turning Basin benthos and stated that radioactive contaminants in the sediments were also bioaccumulating in the benthic biota. A detailed bioassessment of sediment toxicity was not undertaken however. (p.65)
It is also significant to note that the RAP report recognized Port Hope Harbour as waters frequented by fish and cited 1984/1985 studies finding the presence of radionuclides in fish taken from the Turning Basin. (p. 66-68) The accompanying analysis in the RAP report, however, concludes that there is little impairment to potential beneficial users despite the presence of radionuclides.
Reasons for this conclusion include:
i. the main impairments to eating fish in the Harbour were caused by environmental conditions and sources not attributable to the harbour. (pg.ix)
ii. there had been no complaints regarding tainting of fish flavour. (pg. ix)
iii. conditions are not good for fish habitat within the Port Hope Harbour due to shallow depth and configuration resulting in high summer water temperatures, low dissolved oxygen and murky waters. (p. 66)
For the purposes of the Port Hope Project Environmental Assessment, the studies conducted in the 1990s regarding the impacts of contaminated harbour sediments on fish, fish habitat, fish consumption, and the benthic community need to be updated and expanded.
This process should include, but is not limited to:
i. The conclusions drawn by the RAP team should also be reassessed to reflect the objectives of the Environmental Assessment;
ii. New tests not conducted by the RAP team are performed to ensure that an accurate and
detailed understanding of the extent to which the Port Hope Harbour sediments are toxic to fish and the benthic community is achieved; and,
iii. Fisherman in the area should be solicited for complaints about fish tainting and fish consumption in order to assess the state of the problem and what remedial actions can and should be taken.
We would also be remiss if we did not point out that there seems to be contradictory evidence in the public domain with regards to the state of the Port Hope fisheries. The Ganaraska River and Port Hope Harbour region - identified in the RAP report as places where only "some" fishing occurs (pg. ix) - are in fact widely lauded throughout the sportfishing and tourism worlds:
"The fishing opportunities in the Port Hope area are truly outstanding The Ganaraska draws people from great distances to fish There is world class fishing for the Bow's upstream " (http://www.town.porthope.on.ca/fish.htm)
"Other popular areas include Port Hope's legendary Ganaraska River." (http://www.outdoorcanada.ca/best_pacific_salmon.html)
Even the Ganarask Region Conservation Authority - a government agency - recognizes the region as a popular place for sportsfishing (http://www.grca.on.ca/clm.htm).
An accurate evaluation of the health of the fisheries in the area is needed in order to protect human health. The results of such an evaluation will also legitimize statements as to the risk and use impairment impacts of contamination in the Port Hope Harbour.
In the RAP document, the team members conclude that the impact of the harbour's contaminated sediments on wildlife consumption and flavour is not relevant, as "hunting is not permitted in the area." This type of logic should be discouraged for the purposes of the Port Hope Project Environmental Assessment, as it undermines any legitimate attempt to evaluate the environmental impacts of contamination in the region.
The most prevalent wildlife in the Port Hope Harbour - other than fish - are the migratory birds that fly into the area. Geese and ducks are found throughout the Turning Basin and West Slip, and many of these birds nest on the shores and banks of the Harbour. Because these birds are migratory (and therefore fly in both localized zones and over large areas), the fact that hunting is not permitted in the area is irrelevant. While hazardous waste management may not directly effect the local community in this case, managers of the hazardous material should not be permitted to thrust negative impacts, use impairments, and other associated risks on other regions.
Application of Environmental Laws
The Port Hope Project must take into account potential impacts on regions outside the local community and ensure that government standards - particularly Federal laws such as the Migratory Birds Act and the Fisheries Act - are enforced. These laws provide a clear set of standards by which to measure the performance of project managers.
Furthermore, continuing discharges from any waste site or industrial process discovered during the EA must be forced into compliance with the Fisheries and Migratory Birds Acts. If compliance does not result, charges against the offenders should be pursued.
B. Radioactive Contamination in Port Hope
There must be a full and complete assessment of all contaminated wastes in the Town of Port Hope, completed using the best available technology.
As recently as last summer, the Town of Port Hope unexpectedly uncovered radioactive waste in a town park. Similar surprise discoveries must not continue to occur. The EA process should conduct a complete and detailed evaluation of all contamination in town, identifying contaminated regions, informing property owners of suspected areas of contamination originating on their land, informing the general public of suspected areas of contamination located on publicly owned or accessible land, and instigate remediation of the problems.
The Ontario MOE soil study done in the Town of Port Hope in the 1980s should be updated to compare and contrast data, to determine whether or not a continuing problem exists, and to identify what actions, if any, are required to deal with contaminated soils in the town.
Finally, the contamination in the Harris Ponds and on adjacent property needs to be assessed and remediated. Environmental impacts of contamination originating from the Monkey Mountain waste site should be assessed.
Issues of property de-valuation, tax assessments, and re-sale values of property contaminated by radioactive or hazardous waste should also be addressed in the EA.
While the 1990 RAP report states that "No beaches are located in the Area of Concern," - thereby dismissing the risk of potential health risks or use impairments - there is a large, popular beach located just a few metres from the Port Hope Harbour. The Port Hope Project Environmental Assessment should include an evaluation of the historic, current, and potential effects of contaminated soil and sediment on this (and other) known public bathing areas.
C. Health study
The Port Hope Project EA should require that a full health study be conducted to ensure adequate measures are being taken to protect the community from hazardous waste disposed of in Port Hope. This study should be deemed a significant element in the assessment of cumulative harm.
Of primary concern to Lake Ontario Keeper and Energy Probe is that the Environmental Assessment for the Port Hope Project be fair and transparent and that it provide a legitimate opportunity for public participation. Our recommendations, as stated above, reflect a number of changes that should be made to the Draft Scope in order to ensure that the process fulfils these standards.
Lakekeeper & Counsel
Lake Ontario Keeper
Director, Nuclear Research
Energy ProbeKrystyn Tully
Lake Ontario Keeper