Feds tried to order nuclear regulator to bend rules

OTTAWA - The Conservative government issued a cabinet order last week to federal nuclear regulators in an apparent effort to pressure them into letting medical isotope production resume at the Chalk River nuclear reactor.

But the directive, dated Dec. 10, failed to resolve a dispute between Atomic Energy of Canada Ltd., which operates the reactor, and the Canadian Nuclear Safety Commission which sets licensing, health and safety rules.

The government brought in emergency legislation the next day that made a temporary end run around the rules to enable isotope production to resume.

Tory insiders cite the earlier order as proof that the government had tried to solve the problem through normal bureaucratic channels but was rebuffed by the commission.

"This was a confrontation between incompetence and intransigence,'' said one Conservative who asked not to be named. "The incompetence was on the AECL side and the intransigence was on the regulatory side.''

The Dec. 10 cabinet order was drafted in broad policy terms for legal reasons, but it was clearly aimed at getting the Chalk River reactor back into operation after it had been shut down because of concerns that it lacked a backup system for cooling pumps designed to prevent a core meltdown in the event of an accident.

The text of the cabinet order, made public only this week, directs the safety commission "in regulating nuclear substances to take into account the health of Canadians who for medical purposes depend on nuclear substances produced by nuclear reactors.''

The shutdown at Chalk River had cut off about half the world's supply of radioactive isotopes used in the diagnosis of cancer and heart ailments, provoking what the government viewed as a public health crisis.

The Tories tried at first to get opposition consent for an all-party motion in the House of Commons calling for a resumption of operations at Chalk River, but the Liberals balked at that approach.

Omar Alghabra, the party's critic on the issue, said Tuesday the Liberal position was that politicians couldn't intervene in a specific case on which an independent regulatory body had already ruled.

"Instead of working with AECL to accommodate the commission's requirements, they felt the way to do it was to pressure the regulator,'' said Alghabra.

"We felt that it was inappropriate . . .It would be like picking up the phone and calling the judge (in a court case).''

Alghabra acknowledged that it's permitted, under the federal Nuclear Safety and Control Act, for the government to issue broad policy directives without referring to specific cases.

But he maintained that, under the circumstances, it was still wrong for the Conservatives to put out the cabinet order they eventually devised.

"They chose to put the blame, wrongly, on the commission to cover for the failures of AECL and the government's mismanagement of this file.''

Aurele Gervais, a spokesman for the safety commission, said it appears the directive issued by cabinet was a proper one under the law governing the regulatory body.

But he couldn't explain why that wasn't enoughy to resolve the issue without recourse to emergency legislation and couldn't say exactly what impact the directive will have on future regulatory operations.

"We're still in the process so studying it,'' said Gervais.

The commission required AECL, as a condition of its last licence renewal, to upgrade safety systems at the 50-yer-old reactor. Gervais said AECL later notified the regulators, in a letter sent in December 2005, that all the upgrades had been completed.

But when the rector was shut down for routine maintenance last month, inspectors found the backup system for the cooling pumps had not actually been installed. AECL then decided not to re-start the reactor, a move that would have put it in violation of its operating requirements.

Prime Minister Stephen Harper, during heated debate last week in the Commons, blamed the "Liberal-appointed'' safety commission for refusing to recognize the overriding need to resume isotope production.

Other Tories pointed out that Linda Keen, chair of the commission, was a senior bureaucrat at the Natural Resources Department when Liberal Ralph Goodale was minister there. Keen retorted that as a civil servant she was non-partisan.

Ironically, Harper has since appointed a new chair of AECL, Glenna Carr, who held senior bureaucratic posts in the Ontario government under former NDP premier Bob Rae and Liberal David Peterson. The Prime Minister's Office has offered no explanation of why that work record was acceptable but Keen's was not.

Carr replaces Michael Burns, a former fundraiser for the Canadian Alliance, a predecessor of the present Conservatives. He resigned abruptly last Friday in the wake of the furor over Chalk River.