Nuclear Law
Developments in Canada
Jasmine Saric, Counsel
Lisa Thiele, Senior General Counsel
Canadian Nuclear Safety Commission
Nuclear Law Committee Meeting
Nuclear Energy Agency
Paris, France
November 16–17, 2016
Outline
• Nuclear Liability and Compensation Act
(NLCA) update
• The CNSC’s role in Canada’s environmental
assessment (EA) process
• Recent judicial review of CNSC decision
making:
• Darlington new build – EA and licensing
• Darlington refurbishment – EA
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Nuclear Liability and Compensation Act
• Comes into force on January 1, 2017
• Implements the provisions of the Convention on Supplementary Compensation
(CSC), permitting Canada to ratify the CSC
• Sets the absolute liability limit of an operator of a nuclear installation to an amount that
will gradually increase to $1 billion over 4 years – from $650 million at proclamation,
$750 million, $850 million, $1 billion
• Nuclear operators are absolutely and exclusively liable for nuclear damage
• Operators must carry financial security to address liability
• Form of financial security:
•
•
operators to cover liability amount with insurance from approved insurer
subject to Minister’s approval, operators permitted to cover up to 50 percent of their liability
with other forms of financial security (s. 28 NLCA)
Nuclear Liability and Compensation Regulations
• Regulations finalized on May 6, 2016 and will come into force on January 1, 2017
•
•
•
designate nuclear installations
setting classes of nuclear installations
liability limits commensurate with their risk
.
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Nuclear Liability and Compensation Act
• Authority of Minister of Natural Resources over
- designating “nuclear installations” in regulations
- setting liability limits in regulations
- accepting insurers
• Change to role of nuclear regulator under NLCA
- Canadian Nuclear Safety Commission (CNSC) will act in an
advisory role to the Minister of Natural Resources on development
of regulations with respect to designation of nuclear installations
(subsection 7(1) NLCA)
• Statutory obligation on insurers to report to Minister on
suspension or cancellation of insurance
(section 30 NLCA)
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CNSC’s Role in Environmental
Assessment
• Integrates EA into regulatory process for nuclear projects
• Two statutory processes:
– Canadian Environmental Assessment Act (CEAA 2012)
• CNSC is “Responsible Authority” to determine whether a designated
nuclear project is “likely to cause significant adverse environmental
effects”
• if the answer is no, licensing under NSCA follows
– Nuclear Safety and Control Act (NSCA)
• CNSC regulates “to prevent unreasonable risk to the environment”
• if project is not designated under CEAA 2012, NSCA requires
environmental assessment as part of licensing
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CNSC Environmental Assessments
EAs for projects on the
Regulations Designating
Physical Activities:
CEAA 2012
EAs for projects not on the
Regulations Designating
Physical Activities and for
Subsequent Licensing Phases
Project description
Licence application including
project description
EA Review (environmental impact
statement)
Review of licence application
including EA review
Commission hearing and decision
Commission hearing and decision
Ongoing licensing, monitoring and
compliance
Ongoing licensing, monitoring and
compliance
•site/regional offices conduct inspections
•daily inspections at nuclear power plants
•site/regional offices conduct inspections
•daily inspections at nuclear power plants
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CNSC Regulatory Process
Licence (project) application
P
U
B
L
I
O C
N
G I
O N
I V
N O
G L
V
E
M
E
N
T
• Prepare site
• Construct
• Operate
• Decommission
• Abandon
• Others
Environmental
assessment
Technical
assessment
Public hearing
E
N
V
I
R
O
N
M
E
N
T
A
L
M
O
N
I
T
O
R
I
N
G
Licence
… for the life of the project
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2016 Jurisprudence with respect to the
CNSC’s Environmental Assessments
• Darlington new build – Court review of EA
and licence decisions on new NPP project
Canada et al. v. Greenpeace Canada et al., 2015 FCA 186,
leave to appeal denied April 28, 2016 (SCC file no. 36711).
• Darlington refurbishment – Review of EA by
CNSC of proposal for NPP life extension
Greenpeace Canada et al. v. Attorney General of Canada and
Ontario Power Generation Inc., 2016 FCA 114.
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Darlington New Build
Supreme Court of Canada
• Project was a proposal to build up to four new reactors at existing
NPP
• CNSC was “Responsible Authority” under CEAA to conduct EA and
to consider application for site preparation licence under NSCA
• A 17-day public hearing in 2011 resulted in positive EA determination
and issuance of licence to prepare site
• Four NGOs challenged the EA and licence decision by the CNSC
• NGOs were successful at Federal Court level, unsuccessful at
Federal Court of Appeal – see Nuclear Law Bulletin No. 96, vol.
2015/2, at https://www.oecd-nea.org/law/nlb/nlb-96/
• By decision dated 28 April 2016, the Supreme Court of Canada
denied leave to appeal – without costs, without reasons
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Darlington Refurbishment
Federal Court of Appeal
l
(see Nuclear Law Bulletin No.97, vol.2016/1, at https://www.oecd-nea.org/law/nlb/nlb-97/)
• Project to extend life of 4 operating reactors by 30 years
• CNSC was “Responsible Authority” under CEAA to conduct EA;
the project was then subject to licensing under NSCA
• EA hearing resulted in the CNSC finding there would be “no
significant adverse environmental effects”
• Four NGOs challenged this decision before licensing was
considered; NGOs were unsuccessful at Federal Court
• NGOs appealed to the Federal Court of Appeal (FCA)
• CNSC authorized the refurbishment by licence in late 2015
Federal Court of Appeal dismissed the appeal 13 April 2016
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Darlington Refurbishment at FCA (2)
On the standard of review:
• “Where, as here, the issues at play involve detailed factual
findings and discretionary decisions within the heartland of
the tribunal’s expertise, the reasonableness standard requires
that considerable deference be given to the tribunal’s
determinations.”
• This is “particularly so when the issues under review concern
nuclear safety and the tribunal is the nuclear safety regulator”
• “the CNSC is much better placed than a reviewing court to
factually assess and determine what types of possible
accidents are likely to occur at a nuclear power plant and how
to conduct the assessment of the environmental impacts of
potential accidents.”
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Darlington Refurbishment at FCA (3)
On the severe accident threshold:
“… as concerns the allegation that the selection of the
probability threshold of one in a million per year is not
stringent enough, there is no basis to disturb the RAs’
selection of this threshold. […], CEAA 1992 does not
require that all accidents, no matter how improbable, be
taken into account in an EA or the process would be
interminable.”
• This threshold was the “accepted norm applied in these
sorts of assessments, as the CNSC explained in its
decision”
• No reviewable error in the application of the norm
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Darlington Refurbishment at FCA (4)
Long-term management of fuel waste
• Court found the CNSC had reasonably broadened the scope of the
project to include ongoing long-term onsite storage of spent fuel
• Requiring this contingency plan ensured that adequate provision was
made to store the spent fuel onsite for a longer term, and the EA
assessed the impacts of this contingency plan
• It was not unreasonable to exclude from the scope of the EA, the
permanent offsite storage of spent fuel:
“Indeed, to hold otherwise would mean that OPG could not
proceed to refurbish the Darlington reactors unless and until the
NWMO comes up with a solution for permanent storage of
nuclear waste in Canada. Forestalling the refurbishment on this
basis would not be a reasonable outcome when a workable
alternate solution was assessed by the CNSC and found to pose
no likely environmental risk.”
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Conclusions from Case Law
• Appellate court deference to the CNSC in its EA decision
making, as it is the nuclear regulator
• For the EA of a nuclear project, there must be a full
assessment of the project proponent’s plan for long-term
waste management
– this does not require there to be a permanent waste facility in
existence when a “workable alternative solution” was assessed for its
environmental impact as part of the EA.
• The choice as to what types of accidents should be assessed
for their environmental impact must be reasonable
– it is not reasonable to assess the potential impact of all accidents,
however improbable
– the threshold of one in a million probability is reasonable
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Questions?
Nuclearsafety.gc.ca
facebook.com/CanadianNuclearSafetyCommission
Youtube.ca/cnscccsn
twitter.com@cnsc_ccsn
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