Judge rules against Elliot Lake homeowners on radioactive waste rock issue

Three women who own properties in Elliot Lake, ON are disappointed and shocked after a federal judge rejected their appeal to order the removal of radioactive mine waste rock around their homes.

The city was once known as the uranium capital of the world.

The tidy homes, on quiet streets in what is now marketed as a desirable retirement community are well-cared for, but their owners say they harbour levels of radon gas and radiation that far exceed Health Canada limits.

Each of the women purchased their homes unaware that waste rock from nearby uranium mines was used as fill during the 1960s.

Radon is a radioactive gas resulting from the breakdown of uranium in soil and rock.

The Canadian Nuclear Safety Commission (CNSC) told homeowners Jennifer Carling, Lisa Speck and Kathleen Panton in 2023 that it was not responsible for ordering the current owners of the uranium mines to remove the radioactive backfill on their properties, even though the material originated from sites under its jurisdiction.

The uranium mines were operated by Rio Algom, decommissioned in the 1990's, and are now owned by BHP.

The women were seeking a judicial review of the CNSC's decision, but in a ruling late in 2024, Justice Ann Marie McDonald accepted the arguments from the CNSC that the rock was not part of the nuclear processing cycle and therefore, not regulated by the CNSC.

McDonald said she sympathized with the women, but that the CNSC's regulatory authority is only triggered if the nuclear substance arises from the development, production or use of nuclear energy.

She said that the rock in this case was not processed, and contained naturally occurring radiation and, while later moved off-site and used in construction, is not regulated.

Jennifer Carling, whose home recorded the highest levels of radiation, says she is infuriated by what she sees as lack of accountability.

"I fully agree that radiation is naturally occurring," she said. "But when you remove radiation from a site which is a mine site which has a higher concentration and move it to other areas which may have regular background radiation, you're compounding that issue. You are adding more radioactive material to already existing materials."

Carling re-located to Elliot Lake a few years ago when she and her late husband purchased a bungalow, only to later discover that the home had been moved into the town from a spot near a mine site in the 1960's, and waste rock used as fill in the re-location.

It was a similar situation for Kathleen Panton, now 85, who purchased her home with her late husband in 1999 as her retirement investment, but now won't let her grandchildren play in the backyard for fear of the health risk.

Lisa Speck purchased her home on the outskirts of the town as a vacation property in 2019 where some remediation had been done to remove waste rock used as fill, but where she said she has spent $25,000 of her own money to make it safer.

Speck said she and the others have been campaigning for changes that would address the legacy of mine waste and make companies accountable.

"The responsibility has been put on the homeowners to temporarily remediate the issue which we have been doing at our own expense, but a permanent solution needs to be implemented for the health and safety of this beautiful community," said Speck.

She says so far, politicians at all levels have been willing to listen, but she hasn't seen any action.

Lawyer, Kerrie Blaise, acting for the Canadian Environmental Law Association (CELA), represented the women.

She said she's deeply disappointed and feels the ruling opens a regulatory gap in the oversight of nuclear substances that could affect other communities across Canada.

"The repercussions of this are not just important for our clients who are themselves homeowners, but for any other host community, whether or not new nuclear operations are proposed in their community or, waste projects or waste disposal facilities," said Blaise. "I think it's a cautionary tale for any nuclear host community, whether it's Pickering, with existing nuclear operations, or whether it's communities in Ontario's northwest where it's been proposed that they would house Canada's used nuclear fuel rods."

Appeal an option

Blaise said she and her clients have until mid-January to decide whether to appeal the decision, but are still mulling it over.

The Canadian Nuclear Safety Commission said in a statement that it welcomes the decision and is reviewing it.

It also said it is dedicated to upholding the highest standards of safety in its work to oversee regulated activities and facilities to protect Canadians and our environment.