Sudbury News: Judge Set to Rule Quickly in Elliot Lake Homes Contaminated with Radioactive Rock

A federal appeal hearing for three Elliot Lake, Ont., homeowners seeking to remove radioactive rock from their homes ended Thursday.

Federal Court Judge Ann Marie McDonald has been hearing the appeal in a Toronto court for the past two days.

The homes were built in the 1950s and 1960s from waste rock from a nearby uranium mine, then owned by Rio Algom. The rock was used in crawl spaces and driveways in the homes and has since been tested for dangerously high levels of radiation.

The homeowners asked the Canadian Nuclear Safety Commission (CNSC) to inspect their homes and order the rocks to be removed, using its powers under the Nuclear Safety and Control Act.

Although the mine has since closed, the property is now owned by BHP, which will be responsible for any cleanup work ordered by the CNSC.

However, the commission found it did not have jurisdiction to issue such an order because, by definition, rock used in homes is not waste rock associated with nuclear energy production.

The homeowners are appealing the decision with the assistance of lawyers from the Canadian Environmental Law Association. The CNSC was represented by lawyers from the Attorney General of Canada.

Both sides agreed that the rock was waste rock from the mine after it had been separated from uranium ore. The parties also agree that it contained high levels of radiation.

One property was found to have radon levels of 858.7 Bq/m³. By comparison, Health Canada’s radon exposure guideline is just 200 Bq/m³. (Photo from the video)

The disagreement centers on the definition of nuclear mine waste. Attorney Jacqueline Wilson, representing the homeowners, argued that because the rock was mined and separated from the ore, it qualifies as waste rock under the legislation.

However, lawyers defending the CNSC argued that the commission only has authority over mining waste that is actually produced during the mining process, such as mine tailings.

In this case, the fact that the rock is radioactive is irrelevant.

“Natural Radiation”

“These rocks already showed some natural radiation,” attorney James Schneider said.

“It is not related to nuclear energy production… Naturally occurring substances are not subject to the jurisdiction of the CNSC.”

Schneider argued that to come under CNSC control, the rock must be chemically treated during the mining process.

“It’s a question of what’s natural and what’s not,” he said.

Schneider relied on Article 10 of the Act, which exempts from registration materials that are “naturally occurring nuclear substances other than those that are or have been related to the development, production or use of nuclear energy.”

But Judge McDonald said the case was not that simple.

“It does not exempt you from that obligation in as obvious a way as you suggest,” she said.

“What is in the truck, whether it is a nuclear substance, no one can answer that question without investigating.”

Nuclear cycle

However, Schneider said the rock in the Elliot Lake homes “was never intended to be used in the nuclear cycle.”

“This is known as gangue,” he said. “It’s been broken up and moved around, but never processed for the nuclear cycle.”

He also argued that the public has no formal right to force the CNSC to conduct an inspection.

Comparing this to the police’s right to decide whether to investigate a complaint, he said the commission had the right to conduct an inspection, “but it had no obligation to do so.”

Lawyer Margaret Cormack, also defending the CNSC, said the case largely centres on whether the commission’s decision not to open an investigation was unreasonable.

There is a high bar for a decision to be considered unreasonable, Cormack said. In this case, she said, the issue is whether the rock was used to produce nuclear energy.

And that only happens through a chemical process that the rocks in question never went through. They were only transported a short distance to be used in homes.

“This is the totality of what happened to these rocks,” Cormack said.

“These are not rocks that were intended to be processed for nuclear fission or transmutation… It is on this basis that the CNSC makes its decision.”

In her response, Wilson argued that there is no mention anywhere in the legislation that the rocks must be subjected to a chemical process to be classified as nuclear waste.

“Never before has such an argument been made in interpreting Article 10,” she said.

Wilson argued that they were trying to rewrite the law to include the term “chemically processed,” but the statute itself does not contain those words.

In fact, she added, “the gangues are never chemically treated.”

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Looking closely at the bill’s language, Wilson said it’s clear it regulates mineralized waste rock because of its potential to harm human health, like the ones at Elliot Lake homes.

“There is real danger here,” she said. “There is real concern.”

McDonald deferred making a decision on the matter, saying she hoped to issue a written decision soon.