Radioactive Contract

April 27th, 2014

The Canadian Nuclear Safety Commission (CNSC) is responsible for nuclear safety regulation in Canada.  Their current motto is:  We Will Never Compromise Safety.  Lovely motto, but their promise not to compromise has been compromised.

The CNSC has been paying the Canadian Standards Association (CSA) millions of dollars to develop nuclear safety regulations on its behalf.  That’s a problem because the CNSC is responsible for regulations, not the CSA, and because the CSA has no background whatsoever in nuclear safety.

Lets unpack this together.

According to the Nuclear Safety and Control Act, the CNSC was created “to regulate the development, production and use of nuclear energy” and, more specifically, they are to “make regulations” for the nuclear sector.  But they aren’t making them, the CSA is.

The CNSC contracted the CSA to draft nuclear regulations on its behalf.  As CNSC put it, “the CNSC participates in the [CSA Committee] because it has a strong interest in the development of safety Standards related to the nuclear industry.” 

Quoting the CNSC’s 2012 Evaluation Report; “The Nuclear Safety and Control Act and the federal Cabinet Directive on Streamlining Regulation establish and support the CNSC’s participation in the CSA Nuclear Standards Program.”  But neither the Act nor the Directive does any such thing.  The Nuclear Safety and Control Act states that “the objects of the Commission are to regulate” the nuclear sector and specifically to “make regulations.”  We take this to mean nearly all, if not all, of such regulations.  And the “Commission” is the CNSC, not the CSA.  Actually, this Act lists all of the regulations that the CNSC is supposed to make and its exhaustive, the list is thirty-six paragraphs long.  The whole point of the CNSC is to make regulations.

Worse, under Sec. 44 of the Act, any of the CNSC regulations that were drafted instead by the CSA can be amended by the CSA without CNSC review. So not only is the CNSC abrogating its mandated responsibilities to draft regulations, it has actually handed legislative authority to a completely different entity.

Should anyone question whether CSA “standards” are really “regulations,” the Statutory Instruments Act defines a regulation as any text “made in the exercise of a legislative power conferred by or under an Act of Parliament,” like the Nuclear Safety and Control Act, and “for the contravention of which a penalty, fine or imprisonment is prescribed”.  And the Act isn’t short of penalties.  In all, the Act contains forty-one paragraphs of prescribed penalties for “violation” of CSA standards-come-regulations.  So, clearly, these CSA inclusions are regulations rather than standards.

In May of 2013, RestoreCSA contacted the CNSC.  We wanted to know which CNSC regulations had been outsourced to the CSA and at what cost.  To our happy surprise, they furnished some data.  Here’s what we found therein.

Eighty-two percent of current CSA nuclear standards are included in the CNSC regulatory framework.  That’s a lot of outsourcing!  In trade for the use of CSA’s standards, the CNSC pays over $500k per year to the CSA.  But the CNSC also “contributes” 440 person days to the CSA’s nuclear committees.  We asked the CNSC if the cost of this contribution was included in the $500k per year figure.  The CNSC replied on May 30, 2013 that staff contributions are external to the $500k per year figure but they couldn’t tell us what the actual staff value was because “the financial value of the staff effort in Table 8 has not been calculated at this time.”  But the CNSC Evaluation Report notes that the “additional costs to Standards development borne by CNSC staff” was internally estimated at $495,563 in 2012.

In sum then, the CNSC is sending $1,008,888 to the CSA every year in payment for the CSA’s development of the CNSC’s nuclear regulations. 

But what about the 440 person days of CNSC staff time?  What do you suppose those CNSC staff are doing?  Lets recall that the CNSC is Canada’s nuclear regulator, they’re our national nuclear experts.  The CSA on the other hand, has no nuclear expertise at all.  In this context, on September 23, 2013, we wrote to the CNSC to ask some pointed questions.  What, exactly, are these 440 person days for?

The CNSC replied that their staff are working on new and amended nuclear regulations all the time.  “In general,” says the CNSC, contributed staff time “involves preparing for and participation in” the CSA’s nuclear committee.  And the CNSC has only one member on the CSA committee, officially anyway.  It hard to take CSA statements seriously, given the contradictions between them.  Anyway, one should keep in mind that the 440 figure is an annual figure, whereas according to the CSA their committees are in session every five years.  And there are 250 workdays in a civil service calendar.  In sum then, the CNSC is contributing 2,200 person days per regulatory cycle to the CSA.  In more relatable terms, the CNSC’s single member on the CSA’s nuclear committee is spending the equivalent of 8.8 years in full time “preparation” for each CSA committee meeting.  Does this seem reasonable?

It gets even less reasonable.  The CNSC admitted during 2012 that “the CNSC for the most part does not track its time spent on CSA activities as separate from regulatory documents.”  So the 440 person days figure is only the starting point.  It seems that the CNSC doesn’t even have a system to track its contributions to the CSA, in that “data on actual CNSC staff time spent on CSA activities was not available as the CNSC does not have a specific or consistent model for tracking staff time spent on CSA activities.”  Lovely.  “Additionally, the values for the planned and actual time spent on the implementation of CSA Standards into CNSC requirement and guidance documents are not available either.”  It seems that the 440 person days of CNSC contribution to the CSA is just the tip of the nuclear iceberg. 

We can assume then, that the actual CNSC contribution to the CSA is substantially higher than admitted in their documentation.  And given CSA’s lack of nuclear expertise, their contribution to the process is substantially lower than implied by the CNSC.  So where does that leave us?

Lets be blunt.  The CNSC isn’t “participating” in the CSA nuclear committee, the CNSC is drafting the nuclear regulations that the CSA committee will vote for.

Nuclear isn’t like accounting or farming in that nuclear is a lot more specialized, there are hundreds of accountants in Canada for every nuclear safety expert.  For argument, if we say that Canada has 10 renowned nuclear safety experts, and if the CSA assembled the nuclear experts for a committee, then presumably those 10 renowned experts would be on the committee.  Make sense?  Alright, what if instead the CNSC assembled the nuclear safety committee, which renowned experts would they call to their committee?  Well, there are only 10 in our example, so the CNSC would likely call the same 10 experts that the CSA has called.  If the CSA wasn’t involved at all, the same people would be crafting the same regulations in the same way and on the same schedule.  All that the CSA brings to the nuclear table is scheduling and compilation, or more succinctly, the CSA is secretarial in nature.

Briefly, to all those in the nuclear sector who take umbrage at that last line, I respectfully remind you that it was the CSA itself which described its own role in CSA committees as “administrative in nature”.  And the CSA made this claim in court and under oath.  Short of accusing them of perjury, RestoreCSA’s only option is to take them at their word.

In this context, consider how hard it is to schedule meetings.  Just the scheduling of them, mind you, not the taking part in them.  If you were asked to schedule one meeting per year, just to schedule it, how much time would you need to do that?  Ten minutes?  Actually, that’s awfully generous, don’t you think?  And how much should you be paid for those minutes of effort?

Well, the CSA is paid $513,325 per year to schedule meetings once every five years, so if their act of scheduling takes ten minutes, then for their effort the CSA is paid $51,332.50 per minute.  Nice work if you can get it.

Alright, if the CSA has no nuclear expertise whatsoever and only brings administrative assistance to the committee, if the CNSC would draw on the same nuclear expertise if they formed their own committee, if the CNSC is actually mandated by the Government to do all of this, and if the CSA’s administrative services are astoundingly expensive, then why is the CNSC washing regulations through the CSA?

Consider that the Nuclear Safety and Control Act contains the following provision:  “Nothing in this section relieves the [CNSC] of liability in respect of a tort or extra-contractual civil liability to which the [CNSC] would otherwise be subject.”  In contrast, the CSA has been repeatedly afforded broad immunities from civil litigation, well beyond those typical to the civil service.  Washing nuclear regulations through the CSA affords a greater degree of immunity to the CNSC for any liabilities associated with them. 

The CNSC’s efforts to justify the situation are quite amusing.

For instance, they acknowledge that “CNSC staff members are unaware of the distinction between the CNSC’s responsibility for setting regulatory requirements and CSA’s role in developing consensus industry standards.”  That’s because there is no distinction.  As the CNSC admits, eighty-two percent of CSA’s nuclear “standards” are actually the CNSC’s “regulations,” which the CNSA also describes as “requirements (i.e.: mandatory).”  And the Statutory Instruments Act defines these “requirements” as “regulations.”  The CNSC is dancing with semantics, their staff know very well that CSA is drafting the CNSC’s regulations.

In further example, the CNSC claims that effectively paying the CSA twice for the same regulations is “efficient and economical.”  How?  Well, they did a survey.  An internal survey, the best kind.  It turns out that “notwithstanding the lack of data,” the CNSC staff members thought the program was a “good investment” and was managed “in a cost-effective manner.”  Based on what even the CNSC admits is biased internal staff opinion and wholly devoid of any supporting data, the CNSC curiously concludes that doubling their payments to the CSA “is indeed achieving these factors” of efficiency and economy.

The CNSC also asked their own managers if the CSA nuclear committee was a good investment.  It turns out that 100% of their own management thought it was terrific.  Leaving aside for a moment the legitimacy of asking one’s own management whether or not to obey the Nuclear Safety and Control Act, typically in most democratic societies an opinion poll that scores a full 100% in favour of, really, anything is highly suspect. 

Then there’s the CNSC statement that “it would cost the CNSC much more to obtain the same benefits if it were to develop the Standards on its own.”  Wow.  Again folks, a CNSC nuclear committee would have the same people doing the same work in the same way at the same time.  The only difference between CNSC doing the job that it was created for, vs. abrogating their responsibilities to the CSA, is that the CSA charges as least double for the same service.

Finally, we have this gem:  “There were no unintended positive or negative outcomes experienced among any of the CNSC staff” stemming from CSA committee activity.  That’s suspect already, but its partly offset by the this quote, from the same CNSC document:  “The number of survey respondents who identified negative unintended outcomes was small (23%) compared to those who identified positive unintended outcomes (43%).”  Ah, consistency.

The CNSC is mandated by the Federal Government to “make regulations” yet they are refusing to do so.  Instead, they have outsourced their nuclear legislative responsibilities to the CSA, an entity without qualification to do so.  As a result, the CNSC is afforded increased liability protection, but at a cost.  In payment for this protection, the CSA receives over half a million dollars per year.  In consequence, the public is paying double for the same regulations.  Yet the CNSC’s motto still reads:  “We Will Never Compromise Safety.”

Our advice?  Just pull the “N”:  “We Will Ever Compromise Safety”