The CNSC as a unique regulator

Introduction

The Canadian Nuclear Safety Commission (CNSC) has a 70-year history of regulating nuclear safety in Canada. The CNSC is Canada's nuclear regulator, responsible for regulating the use of nuclear energy and materials to protect health, safety, security and the environment; implementing Canada's international commitments on the peaceful use of nuclear energy; and disseminating objective scientific, technical and regulatory information to the public. In this capacity, the CNSC enjoys a unique position compared with other regulatory bodies, which affords significant advantages. The specific factors that set the CNSC apart are set out below.

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Sole nuclear regulator

When consideration was first given to regulating nuclear activities in Canada, nuclear regulation was recognized as an area of national interest. For this reason, it was made a federal power to be managed by a single entity. In many sectors, the production, use and disposal of the same substance or product may be managed by a different set of actors at each stage. By contrast, the fact that the CNSC is Canada's sole regulator for nuclear activities simplifies the regulatory landscape considerably for regulated parties and the public, makes it easier for issues to be addressed and prevents regulatory duplication. This runs counter to emerging regulatory areas where overlap between different regulatory bodies creates confusion, as in the case of regulating drones. Though Transport Canada is the lead regulatory body in this regard, regulators are also involved in other relevant areas such as consumer safety, spectrum management and cybersecurity, which complicate things from a regulatory perspective.

Tribunal process and public hearings

The CNSC has an independent, credible and expert administrative tribunal. The tribunal's expertise in the assessment and determination of nuclear safety matters was acknowledged in recent Federal Court of Appeal decisions. In particular, the CNSC was recognized for best practices established in regulating baseline characterization, waste management, characterization of releases and consideration of extreme events.

The CNSC's arms-length governance structure, in particular the Commission's arms-length decision-making authority, ensures that it remains independent from government, licensees and staff. The Commission does not report to a minister, but rather directly to the Parliament of Canada (through the Minister of Natural Resources). Decisions made by the Commission are not subject to government or political review and cannot be overturned by the Government of Canada. Only the Federal Court or the Supreme Court of Canada may review and overrule a decision made by the Commission.

The CNSC has a robust public participation program that includes a Participant Funding Program and public hearing process, which provide opportunities for public involvement commensurate with public interest, potential environmental effects, and project scope and complexity. Interested parties may register as intervenors or attend Commission meetings or hearings. Additionally, hearings are held in affected communities to make it easier for affected community members to attend. Educational meetings, known as "CNSC 101" sessions, are provided by CNSC staff in host communities and at other locations to educate the public on the CNSC's role in nuclear regulation in Canada.

The CNSC also leverages its regulatory tools, such as RD/GD-99.3, Public Information and Disclosure, which requires applicants and licensees to have public information programs. The public consultation process is built upon years of experience in local communities near nuclear facilities and activities, and enables the CNSC to invest resources to address known concerns. Very few other regulators have such a requirement for licensees to provide information to the public directly.

In addition, the CNSC recovers approximately 70 percent of its operating costs directly from licensees, which creates an additional measure of political independence from the federal appropriations process.

Licensing and the regulatory framework

Perhaps the most significant characteristic that sets the CNSC apart from other regulators is the use of licences. While other federal regulators do grant licences, their licensing regimes are typically much more limited in scope, pertaining to a relatively limited set of activities set out in regulations. The CNSC's licensing regime and regulatory framework cover the entire lifecycle of most projects, and are subject to the Nuclear Safety and Control Act (NSCA) and its regulations, which set out what information must be submitted as part of a licence application. This also gives the CNSC significant flexibility in developing a tailored regulatory approach for each project, since any information submitted in support of a licence application becomes part of the licensing basis, and therefore a legally enforceable requirement. As a result, regulatory documents prepared by the CNSC and standards developed by accredited standards groups become enforceable parts of the regulatory framework. This system is in contrast to the more common, "one-size-fits-all" approach of embedding requirements directly into regulations, which may not adequately consider the differences between various projects or the various levels of risk they may pose.

The CNSC is also one of the only federal regulators to regulate the entire lifecycle of a project, from resource extraction to decommissioning to waste management. The CNSC has multiple licensing phases (i.e., licence to prepare site, construct, operate and decommission) to ensure that the Commission can consider all necessary information prior to granting the applicable licences.

Aboriginal engagement

The CNSC has a proactive and transparent Aboriginal consultation policy and process, which continues throughout the lifecycle of a project. The CNSC has negotiated processes to engage Aboriginal groups to ensure that future consultations continue to be effective. A judicial review has identified Commission proceedings as an adequate means of discharging the Crown's duty to consult.

The CNSC also takes additional actions to consult with Aboriginal communities, particularly in areas of northern Saskatchewan, where many uranium mines and mills are located. This includes CNSC staff visits to communities to present information about the CNSC's role in regulating nuclear activity in Canada, such as the "CNSC 101" series of educational presentations.

The CNSC also sets out requirements and guidance in REGDOC-3.2.2, Aboriginal Engagement, for proponents to engage as early as possible with potentially impacted Aboriginal groups and report to the CNSC on engagement activities conducted to date, issues raised, proposed mitigation or accommodation measures, and future plans for engagement.

Expert staff support

The CNSC is an independent regulator with highly trained scientific and technical staff in a broad range of disciplines, including nuclear science and engineering, safety analysis, safety management, human factors, personnel training and certification, environmental and radiation protection, security, nuclear emergency management, safeguards, and nuclear non-proliferation. As a full-lifecycle regulator, the CNSC maintains a high level of competence in and knowledge of nuclear-related areas in order to achieve continuity and ensure robust science-based regulatory processes throughout the lifecycle.

CNSC technical staff work with project proponents to conduct technical assessments and reviews of project applications to ensure that requirements are met, even before an application for a licence comes before the Commission. These rigorous scientific and technical reviews make it possible for most projects to meet the Commission's requirements for safety, security and the environment, and to ultimately receive a licence from the Commission.

International activities

As a best practice, the CNSC submits to peer reviews and uses international benchmarks for good management practices. These include the International Atomic Energy Agency's (IAEA) Integrated Regulatory Review Service, which is designed to strengthen and enhance the effectiveness of national regulatory infrastructure for radiation, radioactive waste and transport safety; and the IAEA's International Physical Protection Advisory Service, designed to strengthen nuclear security.

The CNSC is also a member of the Nuclear Energy Agency and works to uphold Canada's commitments under the Convention on Nuclear Safety and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.

Rigorous compliance and follow-up process

The CNSC ensures that licensees comply with its regulatory framework through a range of compliance strategies such as compliance promotion, and verification and timely enforcement actions, including an extensive compliance and enforcement toolkit (e.g., administrative monetary penalties, orders). This process is used to ensure that environmental assessment (EA) follow-up programs are carried out effectively, and that adaptive management measures are put in place if necessary.

The CNSC's robust compliance programs include onsite inspections by site inspectors, regional office staff and subject matter experts, who inspect, enforce and report compliance matters. CNSC inspectors are designated and empowered under the NSCA to enforce regulatory requirements. CNSC-certified and trained inspectors have broad statutory inspection powers related to access to licensed facilities and activities. CNSC inspectors are permanently onsite at several major nuclear facilities and are therefore very familiar with site operations. Performance is summarized annually in regulatory oversight reports, which are presented before the Commission and made available to the public.

To complement existing and ongoing compliance activities, the CNSC also implemented its Independent Environmental Monitoring Program (IEMP) to verify that the public and environment around CNSC-regulated nuclear facilities are not adversely affected by releases to the environment. The CNSC conducts this verification through independent sampling and analysis. Results are publicly available and can be viewed on the CNSC's website.

Protection of the environment and health and safety of persons

Under the NSCA, the CNSC has a legislated mandate to ensure the protection of the environment and the health and safety of persons. For this reason, even for projects not in the Regulations Designating Physical Activities (regulations under CEAA 2012 that set out which projects require an EA), the CNSC undertakes robust EAs under the NSCA. As part of its mandate, the CNSC regulates all environmental stressors including radionuclides; non-radiological contaminants such as chemicals and heat; and physical stressors such as noise, sediment and dust.

The CNSC and its predecessor, the Atomic Energy Control Board, have completed over 70 environmental assessments (EAs) for nuclear projects over a period going back more than 30 years to when the first EAs were done in Canada. In fact, the CNSC has been solely responsible for conducting federal EAs of nuclear projects since 2000.

The CNSC's comprehensive environmental protection framework is well documented and well defined in REGDOC-2.9.1, Environmental Protection: Environmental Principles, Assessments and Protection Measures. The framework includes its legislative and regulatory basis, as well as a series of adopted CSA Group standards, and licensing and compliance processes.

A notable aspect of the CNSC's environmental protection framework is the flexibility of the NSCA to deal with environmental protection elements beyond those prescribed in federal EA legislation. Under the NSCA and its associated regulations, the CNSC can broaden the scope of assessment beyond the requirements of an EA as set out in the Canadian Environmental Assessment Act, 2012 (CEAA 2012) in support of achieving the "one-project, one-review" objective. The CNSC's environmental protection framework also provides the authority to adapt environmental protection measures to reflect changes in the environment and new science.

Scientific integrity

The CNSC takes several measures to ensure scientific integrity. CNSC staff publish a wide range of documents such as peer-reviewed articles in scientific journals, scientific reports and licensing process documents, and information products. The CNSC has a research and support program for studying and researching environmental protection topics. The CNSC invites experts to attend Commission hearings or provide technical support when needed. The CNSC has also established a union-management working group to ensure that the science used for regulation is of high quality and free from bias. Finally, the CNSC's decisions are based on science and evidence, including Indigenous traditional knowledge, and are made without political interference.

Transparency

The CNSC ensures that reporting is transparent by making all annual compliance reports and regulatory oversight reports available to the public. Further, CNSC staff with scientific and technical expertise present directly to the Commission at public hearings and meetings. In addition, all Commission proceedings are webcast and available for viewing by any interested parties.