Response by J.A.L. Robertson to an “Invitation to Review a Proposed Process for Selecting a Site”

“Those who cannot learn from history are doomed to repeat it.” – George Santayana

I strongly support the proposed process in its broad scope but I consider that there are several areas deserving discussion.

The report claims (p.15) that “The proposed process… draws from experiences and lessons learned from past work and processes developed in Canada to site facilities for the management of hazardous material”. In this submission I identify areas where relevant lessons seem to have been ignored.

Most of my comments can be discussed within the agenda proposed for NWMO Multi-Party Dialogues planned for September. However, two fundamental questions need resolution before accepting an agenda based on the NWMO’s predetermined approach: these concern Compensation and Site Selection. These should be addressed in plenary session, either during the first evening or at the start of the day session.

A good background for these terms is available in the 1995 “Deep River Community Agreement-in-Principle” published by the Low-level Radioactive Waste Management Siting Task Force (STF) and the Corporation of the Town of Deep River.

• Mitigation includes protection of the water supply and control of noise and dust.

• Remediation compensates for negative effects that cannot be avoided.

• Compensation involves three components: 1) recognition of the principle that the community should finish better off than it was at the start, 2) recompense to the community for accepting a necessary task for the benefit of society as a whole but unattractive to many and 3) acknowledgement that the perception of a risk, however erroneous, can represent a harm.

I assume that mitigation and remediation would be agreed between the NWMO and the community at Step 5. The report contains no mention of compensation yet this, I submit, is vital to gaining the interest of communities (Steps 1, 2 & 3), communities’ willingness to accept the project (Step 5) and selection of the preferred site (Step 6).

The 2008 Annual Report (pp. 18 – 24) shows that the NWMO is already communicating its concept of the APM process widely. If compensation is not an integral part of this, communities and individuals may see nothing in it for them and be turned off at this early stage, Step 0.

Agreement on the need for compensation is essential for resolution of the second fundamental question.

Historically, governments having to locate an unpopular facility would select a site with little, if any, input from the affected community. This process has been characterized as the paternalistic DAD (Decide, Announce, Defend) approach. The usual reaction is antagonistic, NIMBY (Not In My Back Yard), protests, law suits and even civil action. More recently, the need to involve the communities in the decision-making has been recognized. The NWMO stresses the collaborative nature of the proposed process. However the report shows that the NWMO, in selecting between qualified communities (Step 6), intends deciding what is good for the communities. It even uses the term “… foster the wellbeing of the local community” reminiscent of paternalistic foster parents.

The assessment consists of two distinct parts, technical (Protecting Humans and the Environment, pp. 26 – 30) and social (Fostering Community Well-Being, pp. 31 – 32). The NWMO with its considerable technical expertise and access to expert reviews is best qualified to assess the technical factors: the community is best qualified to assess its own values and priorities.

Acceptance of the need for compensation allows an alternative selection process that is more democratic and more attractive to potential communities. At Step 5 each community would develop its proposal, effectively a bid, for what it requires, including compensation, to host the project. The NWMO in Step 6 would select between the bids considering both the ranking of technical factors (not just Go/No Go) and the costs of social factors.

This modified approach would address a serious omission from the Report – the need for cost-effectiveness. In the 2008 Annual Report President Ken Nash states: “Throughout the year, we remained accountable for the prudent management of the financial resources provided by the member companies for our operations.” However the NWMO has never demonstrated a commitment to seeking a cost-effective solution: it has given the impression of promising the “best” solution regardless of cost. Also, the funds of which it is custodian are from real electricity customers, only collected by the amorphous “member companies”. A page (p. 31) on “Ethical Framework” in the 2008 Annual Report commits the NWMO to economic feasibility but is silent on economic responsibility. A bidding process would help in this respect.

The need for compensation and the relative merits of the two approaches to proposal selection should be discussed before responding to the invitation to review the NWMO’s predetermined approach in the report. In the Agenda for forthcoming Multi-Party Dialogues, “Overview of the Project” “Q&A in Plenary” represents more paternalism, not dialogue. As a minimum, The NWMO should explain why it has ignored the alternative approach that has been recommended to it several times.

The importance of Step 1 should not be underestimated. Unless the NWMO succeeds in interesting some communities the process is dead before it starts. The NWMO must market its proposal effectively and to do this it should imagine itself in the position of a community – “What’s in it for us?”. This is one reason why the question of compensation is urgent. Communities should know from the start that compensation will be available and should be aware of the general nature and magnitude of the compensation.

The NWMO should recognize that the fear of radiation and all things nuclear is widespread in the public and that there is a very competent network that opposes nuclear energy in any form. The initial information package should therefore anticipate these reactions by clearly identifying and quantifying both the risks and the benefits, the measures to limit the risks, and the monitoring to ensure that that these measures are effective. One way to achieve this would be to provide an illustrative (“boiler-plate”) agreement. The Community Agreement-in-Principle between Deep River and the STF is one example.

The information package should provide a good balance between technical and social factors. The STF’s Community Liaison Group (CLG) received more technical reports (e.g., geology, engineering and pathways analysis) than its public wanted but could not obtain from the STF answers to the social questions (e.g., public communications, mitigation, remediation, compliance, monitoring and compensation) that it was asked. The CLG reported in its letter of unanimous resignation that at the end of its life: “We have as many unanswered questions today as we did when we started.” The information received on social questions was too little and too late. (For more lessons learned from Deep River’s experience with the STF see the Appendix to my submission dated 2004 October on “Understanding the Choices”.)

A lesson learned from the failure of the STF was that “The process fails to recognize that most people form their opinions on public issues at an early stage before enough information is available for what experts would regard as an informed decision. These early opinions are largely derived from existing mindsets and messages conveyed by the media. Once opinions are formed it is very difficult to change them: new information is either used to reinforce them, or is rejected. As a result of this and the lack of balance in available information … many people had decided at a relatively early stage to vote against the proposal, and so were unreceptive to new information available through the CLG.” Throughout the process, starting at Step 1, the NWMO should monitor the media, especially local media, for false or misleading items on the process and be prepared to respond immediately.

Even at this early stage the community needs to know if it would be eligible. The Initial Requirements (p.13) represent a good start but the NWMO should ensure that they are as complete as possible and should redraft them in more user-friendly terms. The first requirement, not mentioned, should be suitable geology, and the term should be explained. “Protected areas” and “heritage sites” should be explained and reference given to any relevant acts or regulations. The meaning of “groundwater resources” is unclear since all geological formations are liable to contain some water. Since some requirements are quantitative rather than absolute, this matter should be clarified.

One of the causes identified for the failure of the STF process was the lack of any “proponent or champion in the volunteer community to balance the opponents that come out for any such proposal. … The STF stated that it could not act as a proponent: its terms of reference consist of six actions but do not include the objective of securing a disposal site. The mandate of the CLG (Community Liaison Group) is to be a neutral two-way conduit for information between the community and the STF.” In its Final Report (p. 85) the STF acknowledged the need for a champion.

Despite a possible perception of conflict of interest – the NWMO is both proponent and arbiter – its primary responsibility is to secure a suitable site. To succeed it must provide champions for each interested community. At early steps one individual could serve several communities on a visiting basis: later a champion should be resident in each of the short-list communities.

Thus history teaches the needs for both consumer-friendly information and a champion; and that both should be available from the start.

The importance of knowing the NWMO’s position on compensation arises again in Step 5B. The NWMO apparently intends negotiating an agreement bilaterally with each community, at which stage compensation will be an issue. The Report states that the “NWMO and the community will work together” on developing the agreement. The integrity and the fairness of the process have to be questioned if the NWMO subsequently (Step 6) has to select between agreements in which the NWMO has been involved. At least in theory, the NWMO could manipulate the draft agreements to justify any desired selection. Later, the NWMO would be vulnerable to a legal challenge by a rejected community.

The alternative, repeatedly recommended to the NWMO and its predecessor, the Blair Seaborn Panel, but ignored in the Report, is for the NWMO to assist, not “work with” the community to develop technical aspects of its proposal then leave the community to form its own assessment of its priorities and the compensation it would require. The communities would then effectively be submitting bids permitting the NWMO to make a hands-off selection between the submissions.

The Report is silent on the role of costs in the proposed assessment and selection. In past Dialogues members of the public have demanded that the risk should be made as low as possible. Despite submissions showing that making any one activity much safer than others reduces the safety of society as a whole, because of the inefficient use of limited resources, the NWMO has not discussed this issue. It does not have a mandate to find a solution at any cost. The first Guiding Principle (p. 16) recommends that regulatory requirements be exceeded “if possible”. The International Commission on Radiological Protection (ICRP) is more responsible in its ALARA Principle that radiation doses should be As Low As Reasonably Achievable.

The NWMO does not own the funds that it disburses: it holds them in trust for Ontario ratepayers. It therefore has a duty to ensure that the selection is cost-effective. Thus the first stage of the selection should be to check that the proposals are adequately safe: then the lowest cost bid should be selected. Step 6A (p. 23) on how the NWMO selects the preferred site contains no mention of costs. Cost effectiveness should also be a factor in designing the demonstration facility so that, if it is successful, it can be expanded into the final facility: at least the surface facilities should be capable of servicing the final facility.

It is important that this aspect of the process be known from the start so that communities do not incorporate excessive safety in their proposals resulting in them being priced out of the competition. Should the NWMO reject this argument for adequate safety and decide to “evaluate” safety (pp. 28 – 31) the evaluation should be quantitative wherever possible. For instance, it is not enough just to ensure that “The volume of available competent rock … is sufficient” (p.28): the permeability of the rock must be known for comparison between sites.

Either proposed selection process could be applied to the case where the NWMO has to select one proposal from several technically acceptable ones. Both processes would have difficulty if there exists only one acceptable proposal so that the NWMO has to negotiate an agreement with little bargaining power. The Report fails to provide a contingency plan for this case. Even more difficult would be no technically acceptable willing community yet again the Report contains nothing on this contingency.

The agreement between the NWMO and the community will contain procedures for ongoing monitoring of the surrounding air and water even when the repository is closed. These should include two provisions:

• On-line measurements of radiation levels in the air and water should be displayed somewhere the public can readily see them, e.g., in the sort of time and temperature advertising signs of some stores.

• There should be predetermined and agreed actions, e.g., a shut-down of operations, should the measurements exceed predetermined levels.

These provisions are intended to increase the trust in operation of the facility. The question of trust is further addressed in the final section.

There is no recognition that the demonstration facility will probably require regulatory review.

The CNSC normally requires separate licences for construction and operation. In conformity with Adaptive Phased Management it would be wise to treat these as two distinct steps.

The Report’s failure to inform the public of all the work done on the responsible management of used fuel before the NWMO was created in 2002 (p. 9) is an insult to all those in the Canadian nuclear industry who had already provided the necessary research and development and who had been advocating a solution virtually identical to the NWMO’s Adaptive Phased Management for decades (see AECL Report AECL-5136 of 1975). Specifically, W.B. Lewis, “father of CANDU”, had initiated field trials of a potential means of safe disposal of the fuel-wastes in the early 1950s before any CANDU reactors were in operation.

The relevance of this to the NWMO is that it affects public trust, something that the NWMO rightly considers important. During NWMO Dialogues participants have expressed distrust of the Canadian nuclear industry based on a false belief that it had built nuclear reactors without having considered how to manage the wastes. It is in the interests of the NWMO as part of that industry to challenge such misunderstandings and certainly not to propagate them.

After Deep River and the STF agreed on a CAP the then federal Minister of Energy failed to endorse and implement it. This history may make communities reluctant to get involved in a protracted process that could prove futile. The NWMO has to assure communities that they can trust it to implement any agreement that is signed.

To gain and maintain public trust the NWMO’s publications must be unimpeachable. Unfortunately, many of its publications, notably Background Papers, contain statements that have been challenged without the NWMO taking any position. To help improve future publications the Appendix provides detailed comments on the Report, each trivial in itself.

2009 July 12

Appendix – Detailed Comments