Surface Disposal of Radioactive Waste

Normtek Radiation Services is an Alberta company in the business of removing naturally occurring radioactive materials (NORMs) from equipment used in resource development, and then disposing of NORMs in accordance with national and international radioactive waste guidelines and best practices. Normtek sought to participate in the assessment of an application made to Alberta Environment by the owner of a landfill seeking regulatory approval for the surface disposal of equipment contaminated with NORMs. Alberta Environment refused Normtek’s request to participate in the assessment, and subsequently issued the landfill approval in 2016 without any opportunity for public input on the health and environmental risks associated with this type of disposal.

Normtek retained the Clinic as legal counsel to represent and advise Normtek on seeking to appeal the Alberta Environment decision at the Alberta Environmental Appeals Board (Board) under the Environmental Protection and Enhancement Act (Alberta). The Board denied Normtek standing to appeal the landfill approval on the basis that Normtek was not ‘directly affected’ by the Alberta Environment approval. Normtek sought judicial review of this standing determination, arguing that the narrow reading of ‘directly affected’ employed by the Board to determine who may challenge an Alberta Environment decision is inconsistent with the participatory objectives of the Environmental Protection and Enhancement Act and the rule of law. The Chambers Justice rejected these arguments and dismissed the judicial review application. The appeal of the Chambers Justice’s decision was successful, and in December 2020 the Alberta Court of Appeal found in favour of Normtek and ordered the Board to reconsider Normtek’s standing to challenge the landfill authorization. The Clinic served as legal counsel to Normtek in these judicial proceedings.

In Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456, the Court of Appeal rejected a rigid and narrow interpretation of ‘directly affected’ and ordered the Board to give an interpretation that reflects the wide range of concerns that may arise in relation to an environmental decision, including environmental, social, economic, cultural, property, human health, safety, and regulatory. This decision reversed almost two decades of jurisprudence in Alberta on how to interpret ‘directly affected’ and has the potential to significantly broaden the entitlement for public participation in environmental and resource development decision-making.

The substantive dispute concerning the landfill authorization was resolved using the Board’s mediation services in the summer of 2022. The resolution of this matter has led to more stringent conditions on the acceptance of NORMs at the subject landfill, as well as a commitment to pursue the development of a regulatory framework in Alberta for the surface disposal of radioactive waste.