Lawyers argue about who is responsible for remediating mining waste used as fill at three Elliot Lake homes

Lawyers for the Canadian Environmental Law Association (CELA) and the Attorney General are arguing whether the Canadian Nuclear Safety Commission is responsible for removing uranium mine waste rock that was used as fill at three properties in Elliot Lake.

The case began July 3, 2024 before Justice AnnMarie McDonald in federal court in Toronto.

CELAand Blaise Law areadvocating for three Elliot Lake homeowners: 85 year-old Kathleen Panton, 74 year-old Jennifer Carling and 50 year-old Lisa Speck, who all own homes in Elliot Lake.

Last year, they retained CELA to ask the Canadian Nuclear Safety Commission (CNSC) to send an inspector and remediate their homes after independent experts found higher than acceptable levels of radon and gamma radiation in and around their homes.

Radon is an odourless gas that is a by-product created by the decay of uranium and is a leading cause of lung cancer.

The CNSC responded one week after their request in a letter dated June 20, 2023, saying, while it doesn't dispute that waste rock from nearby uranium mines was moved to those properties,it doesn't have jurisdiction to investigate or remediate.

That letter is the key element in this hearing.

The attorney general's lawyer, James Schneider, explained to the judge that the public doesn't have the right to request inspectors and the letter is not a reviewable decision.

However, he said even if the judge finds the letter fulfills the definition of a decision, the CNSC doesn't regard the uranium waste rock in this case to be something it regulates.

Schneider says the Nuclear Safety and Control Act defines uranium as a regulated substance, but he says the CNSC does not have jurisdiction over all uranium.

"The CNSC assesses that the materials in question were never chemically processed; they were simply broken up and moved a short distance from their place of origin," cites the letter. "This waste rock is naturally radioactive at levels consistent with the region; it was not subjected to any of the processes of the nuclear fuel cycle."

Schneider says the CNSC is not responsible for what falls under naturally occurring substances and doesn't see it as associated with the nuclear fuel cycle, therefore it's not regulated.

CNSC says homeowners should also contact Health Canada

Schneider also told the judge that the CNSC isn't the only group that regulates nuclear materials or radon in Canada and isn't the only agency that does remediation

He noted the letter recommended the homeowners reach out to Health Canada for advice on what they could do themselves to reduce radon in their homes.

He also suggested they should approach the province of Ontario which regulated uranium mines at the time the waste rock was moved to their properties prior to the creation of the CNSC.

In fact, Schneider says the CNSC doesn't have the same mandate and goals that its predecessor (Atomic Energy Control Board) did, when Atomic Energy Canada Limited was investigating high radon levels with a federal-provincial task force on radioactivity and did some remediation on homes in Elliot Lake in the 1970s.

As for a reference in the June 20, 2023 letter saying homeowners had signed contracts with AECL to be responsible for the long-term care and maintenance of radon mitigation measures in their homes, Schneider says he has no copies of such contracts but even if he did they wouldn't change whether waste rock is under CNSC jurisdiction.

Canadian Environmental Law Association targets definition of waste rock

Jacqueline Wilson for CELA took aim at the attorney general's argument that the waste rock is exempt from regulation because it was moved off site and had not been chemically processed saying that explanation was unreasonable.

Wilson says that would create a "perverseincentive" for mines to move mine waste rock off site to avoid scrutiny and oversight.

She delved into the Nuclear Safety and Control Act for definitions of and interpretations of nuclear substances..

Wilson argues the waste rock in this case, that is, rock that was removed to get to more economically viable uranium deposits, still contained enough uranium to be harmful to public health or deleterious to the environment.

Wilson calls it mineralized waste rock and says that's what is causing the radiation and radon gas in and around these homes.

Carling and Panton's homes were owned by Rio Algom and moved from the mine site in the 1960's to their current locations using waste rock as fill.

Rio Algom sold them in the 1980s, but by the time Carling and Panton bought the homes, their history had been obscured and they were unaware of the health risks.

Speck's home was built in the 1990s when the spot was outside municipal limits with mining waste rock from the now-closed Spanish American mine used as fill beneath it.

She says she has a document from the previous owner withAtomic Energy of Canada Limited, committing to raise the home and remove the waste rock, but that it was never acted on.

The three homeowners forwarded information from expert testing to the CSNC along with their request for investigation and remediation.

Wilson explained that one expert measured the radon in the form of becquerels per metre cubed in the homes to get a handle on the levels.

Two-hundredbecquerels is considered the limit for safety.

The reports found levels of724, at Carling's home,858 at Panton's home and 468 in a crawl space below Specks's home.

As for gamma radiation, another expert found elevated levels along the driveway and foundations of two homes and in the crawl space and water pit of the third.

Wilson says that belies the argument that the waste rock consists of naturally occurring nuclear substances that fall outside the CNSC's regulatory authority.

As a final indicator of public harm, CELA had a doctor calculate radiation exposure amongthe three homeowners.

The safe dose per year is considered one millisievert.

Wilson says the doctor conservatively found Panton was exposed to 12.7, Carling received 15.1 and Speck, 8.2.

CELA says CNSC has mandateto investigate to protect health, environment

In an affidavit, an official with the CNSC admitted it has never done any testing on the homes, even after receiving the reports that CELA provided and did not order an investigation before replying in the June 20 letter.

Wilson turned to the Nuclear Safety and Control Act to emphasize the obligation of the CNSC to investigate when it receives information about potential radioactive substances

She says it allows for inspectors to take any measure they believe necessary to protect the environment and health and safety of people

She brought up entries in Hansard, when politicians were proposing the legislation.

They outlined that the new commission would have the power to order remediation where necessary and to act quickly where liability could threaten public health and the environment. Wilson then noted that three days after the applicants requested investigation and remediation and CELA forwarded the alarming information about radon and gamma levels, the CNSC wrote to the current owner of the former Rio Algom mines, BHP, that the CNSC only orders investigation as a last resort and told BHP it doesn't have regulatory oversight over homes.

Wilson says the CNSC is acting unlawfully and unreasonably by refusing to investigate and remediate the three properties.

She is asking the judge to quash the decision outlined in the letter and refer the matter back to the CNSC for a new decision that better reflects the Nuclear Safety and Control Act.

The hearing continues in federal court at 9:30 a.m. in Toronto on July 4.