Judge aims to issue a quick decision in case of northern Ont. homes contaminated with radioactive rock

A federal appeals hearing ended Thursday involving three homeowners from Elliot Lake, Ont., seeking to have radioactive rock removed from their homes.

Federal Court Justice Ann Marie McDonald heard the appeal in a Toronto courtroom over the last two days.

The homes were built in the 1950s and 1960s using rock waste taken 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 tested for dangerously high levels of radiation.

The homeowners appealed to the Canadian Nuclear Safety Commission (CNSC) to inspect their homes and order the removal of the rock, using their authority under the Nuclear Safety and Control Act.

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

However, the commission ruled that it doesn’t have the jurisdiction to make such an order because, under its definition, the rock used in the homes isn’t rock waste associated with the production of nuclear energy.

The homeowners are appealing that decision, aided by 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 taken from the mine after it was separated from uranium ore. They also agree that it contains high levels of radiation.

One property tested positive for radon with a level of 858.7 Bq/m³. To put that in perspective, Health Canada's guideline for radon exposure is only 200 Bq/m³. (Photo from video)

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

But lawyers defending the CNSC argued that the commission only has authority over mining waste that actually goes through the mining process, such as mine tailings.

In this case, the fact the rock is radioactive doesn’t matter.

'Natural radiation'

“These rocks already had some natural radiation,” said lawyer James Schneider.

“It’s not associated with the production of nuclear energy … Naturally occurring substances are not under the CNSC jurisdiction.”

To be under the control of the CNSC, Schneider argued that the rock had to be chemically treated in a mining process.

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

Schneider was relying on Section 10 of the Act, which exempts material that is “naturally occurring nuclear substances, other than those that are or have been associated with the development, production or use of nuclear energy.”

But Justice McDonald said the matter wasn’t that simple.

“It doesn’t exempt it quite as clearly as you suggest,” she said.

“What’s sitting in the truck, whether it’s a nuclear substance, no one can answer that without looking into it.”

The nuclear cycle

But Schneider said the rock in the Elliot Lake homes “was never intended to enter the nuclear cycle.”

“It’s known as waste rock,” he said. “It had been broken up and moved, but never processed for the nuclear cycle.”

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

Comparing it to the police’s right to decide whether to investigate a complaint, he said the commission has the power to do an inspection “but there is no obligation here.”

Lawyer Margaret Cormack, also defending the CNSC, said the case largely centred on whether the commission’s decision not to investigate was unreasonable.

There is a high bar for ruling a decision is unreasonable, Cormack said. In this case, she said the issue is whether the rock was used in the production of 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 away to be used in the homes.

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

“These are not rocks that were going to be processed for nuclear fission or transmutation … It’s on that basis that the CNSC is making its decision.”

In her reply, Wilson argued that nowhere in the legislation does it say the rocks have to go through a chemical process to be considered nuclear waste.

“This is not an argument that has ever been made in interpreting Section 10,” she said.

Wilson argued that they were trying to rewrite the legislation by adding the “chemically processed” provision, but the Act itself doesn’t contain those words.

In fact, she said, “waste rock is never chemically processed.”

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If you examine the language of the Act, Wilson said it’s clear that it regulates mineralized waste rock because of its potential to cause harm to human health, as is the case in the Elliot Lake homes.

“There’s a real danger here,” she said. “There’s a real concern.”

McDonald reserved her decision in the case, saying she hoped to issue a written decision soon.