Nuclear Law Developments in Canada

Transcription

1 uclear Law Developments in Canada Jasmine Saric, Counsel Lisa Thiele, Senior General Counsel Canadian uclear Safety Commission uclear Law Committee Meeting uclear Energy Agency Paris, France ovember 16 17, 2016

2 Outline uclear Liability and Compensation Act (LCA) update The CSC s role in Canada s environmental assessment (EA) process Recent judicial review of CSC decision making: Darlington new build EA and licensing Darlington refurbishment EA 2

3 uclear 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 uclear 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 LCA) uclear Liability and Compensation Regulations Regulations finalized on May 6, 2016 and will come into force on January 1, designate nuclear installations setting classes of nuclear installations liability limits commensurate with their risk 3

4 uclear Liability and Compensation Act Authority of Minister of atural Resources over - designating nuclear installations in regulations - setting liability limits in regulations - accepting insurers Change to role of nuclear regulator under LCA - Canadian uclear Safety Commission (CSC) will act in an advisory role to the Minister of atural Resources on development of regulations with respect to designation of nuclear installations (subsection 7(1) LCA) Statutory obligation on insurers to report to Minister on suspension or cancellation of insurance (section 30 LCA) 4

5 CSC s Role in Environmental Assessment Integrates EA into regulatory process for nuclear projects Two statutory processes: Canadian Environmental Assessment Act (CEAA 2012) CSC 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 SCA follows uclear Safety and Control Act (SCA) CSC regulates to prevent unreasonable risk to the environment if project is not designated under CEAA 2012, SCA requires environmental assessment as part of licensing 5

6 CSC Environmental Assessments EAs for projects on the Regulations Designating Physical Activities: CEAA 2012 Project description EA Review (environmental impact statement) Commission hearing and decision Ongoing licensing, monitoring and compliance site/regional offices conduct inspections daily inspections at nuclear power plants EAs for projects not on the Regulations Designating Physical Activities and for Subsequent Licensing Phases Licence application including project description Review of licence application including EA review Commission hearing and decision Ongoing licensing, monitoring and compliance site/regional offices conduct inspections daily inspections at nuclear power plants 6

7 CSC Regulatory Process O G O I G P U B L I C I V O L V E M E T Licence (project) application Prepare site Construct Operate Environmental assessment Public hearing Licence Decommission Abandon Others Technical assessment for the life of the project E V I R O M E T A L M O I T O R I G 7

8 2016 Jurisprudence with respect to the CSC s Environmental Assessments Darlington new build Court review of EA and licence decisions on new PP project Canada et al. v. Greenpeace Canada et al., 2015 FCA 186, leave to appeal denied April 28, 2016 (SCC file no ). Darlington refurbishment Review of EA by CSC of proposal for PP life extension Greenpeace Canada et al. v. Attorney General of Canada and Ontario Power Generation Inc., 2016 FCA

9 Darlington ew Build Supreme Court of Canada Project was a proposal to build up to four new reactors at existing PP CSC was Responsible Authority under CEAA to conduct EA and to consider application for site preparation licence under SCA A 17-day public hearing in 2011 resulted in positive EA determination and issuance of licence to prepare site Four GOs challenged the EA and licence decision by the CSC GOs were successful at Federal Court level, unsuccessful at Federal Court of Appeal see uclear Law Bulletin o. 96, vol. 2015/2, at By decision dated 28 April 2016, the Supreme Court of Canada denied leave to appeal without costs, without reasons 9

10 Darlington Refurbishment Federal Court of Appeal l (see uclear Law Bulletin o.97, vol.2016/1, at Project to extend life of 4 operating reactors by 30 years CSC was Responsible Authority under CEAA to conduct EA; the project was then subject to licensing under SCA EA hearing resulted in the CSC finding there would be no significant adverse environmental effects Four GOs challenged this decision before licensing was considered; GOs were unsuccessful at Federal Court GOs appealed to the Federal Court of Appeal (FCA) CSC authorized the refurbishment by licence in late 2015 Federal Court of Appeal dismissed the appeal 13 April

11 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 CSC 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. 11

12 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 CSC explained in its decision o reviewable error in the application of the norm 12

13 Darlington Refurbishment at FCA (4) Long-term management of fuel waste Court found the CSC 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 WMO 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 CSC and found to pose no likely environmental risk. 13

14 Conclusions from Case Law Appellate court deference to the CSC 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 14

15 Questions? uclearsafety.gc.ca facebook.com/canadianuclearsafetycommission Youtube.ca/cnscccsn 15