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Stan Berger

Canada Ratifies International Convention on Supplementary Compensation

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On Wednesday June 6, 2017 the Permanent Representative of Canada to the International Atomic Energy Agency (IAEA), Ambassador Mark Bailey, delivered the instrument of ratification to IAEA Director General Yukiya Amano at a ceremony at IAEA Headquarters in Vienna, Austria. Canada’s ratification follows the entry-into-force on January 1, 2017 of the Nuclear Liability and Compensation Act, domestic legislation that strengthened Canada’s nuclear liability regime and permitted Canada to ratify the Convention on Supplementary Compensation for Nuclear Damage. The United States, Canada’s closest neighbour, ratified the Convention in 2008. The implications are significant for Canada as Article XIII provides that with few exceptions, jurisdiction over actions concerning nuclear damage from a nuclear incident lie only with the courts of the Contracting Party within which the nuclear incident occurs. For foreign suppliers and contractors with assets for example, in the United States who are working on refurbishments of the Darlington or Bruce Nuclear Generating Stations in Canada, they are no longer exposed to lawsuits in the U.S. arising from a nuclear incident at either of these sites in relation to work they are doing in Canada.

CNLO MEMBERS INVITED TO WNA LAW GROUP APRIL 25

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Dear CNLO Members

As you may be aware, the WNA Working Groups will be meeting in Toronto on Tuesday, April 25, including the Legal Working Group (see details below). 
WNA has been kind enough to invite CNLO members to participate as observers in the WNA Legal Working Group meeting.  This is a unique and exciting opportunity for our members, as typically only WNA members are allowed to participate in the Working Group meetings, which are held in various international locations on a rotating basis.We believe this event would provide our members with an excellent opportunity to meet and benefit from the exchange of ideas with our international colleagues active in the nuclear law space.

Please advise Magda Hanebach, the CNLO Secretary (magda.hanebach@gowlingwlg.com) at your earliest convenience if you plan on attending. 

 

Best regards,

Ahab Abdel-Aziz

CNLO President

 

 
Law Working Group Meeting

Tuesday 25 April, Toronto 

Dear Colleagues,

Register now for the the Law Working Group Meeting, which will take place at 09:30 – 12:30 on Tuesday 25 April at the Delta Hotel Toronto, Canada 75 Lower Simcoe Street, Toronto, Canada MJ5 3A6. near Ripley’s Aquarium , off Bremner St. ,Toronto’s Rogers Baseball Stadium and the Entertainment District .  

The agenda is currently being finalized and will be circulated as soon as completed. Confirmed speakers to date include:

– Ahab Abdel-Aziz (Canadian Nuclear Law Organisation)

– Collen P. DeMerchant (Nuclear Insurance Association of Canada)

– Lisa Thiele (Canadian Nuclear Safety Commission)

The meeting will be followed by lunch.

Regards

Kangjun Lee

(Acting Staff Director to the Law Working Group)

Upcoming events
World Nuclear Fuel Cycle (conference co-organised with NEI) 25-27 April 2017, Toronto, Canada

 

World Nuclear Association Symposium 2017 13-15 September 2017, London, UK Save the date!

 

 

 

NEW CNLO BOARD MEMBER

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The CNLO is delighted  to announce that Evguenia Prokopieva, Senior Counsel at OPG is joining the CNLO  Board of Management . At the same time, Carlton Mathias , the current OPG member of the Board, is leaving to pursue his new responsibilities in OPG’s Office of Corporate Secretary. The CNLO will miss Carlton’s sage counsel and wish him well in his new role.

Supreme Court Denies Leave To Appeal Approval Of Darlington Nuclear New Build

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April 28, 2016

Despite a dissenting opinion in the Federal Court of Appeal, the Supreme Court of Canada today denied leave to appeal the Federal Court of Appeal’s  September 10, 2015 decision. That decision  overturned  the Federal Court Trial Division’s decision which would have  sent the environmental assessment (EA)  for the proposed Darlington Nuclear New Build Project back to the Joint Review Panel and invalidated  approvals rendered by the Governor- in -Council , the Canadian Nuclear Safety Commission (CNSC) ,  the Department of Fisheries and Oceans and Transport Canada.

The Trial Decision Trial Division Judge Russell had mistakenly  concluded that the Canadian Environmental Assessment Act S.C. 1992, c.37 (CEAA) requirements had not been met in three instances:

1. the Panel failed to fully  consider the environmental effects of  hazardous substance emissions , in particular liquid effluent and stormwater runoff and the sources , types and quantities of non-radioactive wastes to be generated by the project.

2, the Panel failed to consider radioactive waste management and more particularly the management of spent nuclear fuel off-site

3. the Panel failed to consider the effects of a common cause accident involving both the existing and proposed nuclear reactors , but left this issue to be addressed by the nuclear regulator prior to the actual construction some 8 years down the road.

The Federal Court of Appeal Decision The Appeal Court was unanimous in deciding that the waste management issue and the common cause accident had been adequately addressed by the Panel. The Terms of Reference did not require consideration of spent nuclear fuel off-site and the improbability of a common cause accident supported  the Panel’s deferral of the issue to a later date as a reasonable conclusion .

The Appeal Court had disagreed on the question of whether the effects of hazardous substances emissions had been properly considered. The majority found that there had been a reasonable  consideration and that was all that was required. The reasonableness of the consideration was found in the acceptance by the panel of the plant parameter envelope or bounding approach under which the proponent did not propose one design or technology but four separate ones . The distinct characteristics of each design giving rise to the greatest adverse effects set the boundaries for the environmental impact assessment. Without any firm design selection the full suite of effects could not be predicted fully at the assessment stage , but the majority of the court found that the approach was reasonable when accompanied by recommendations for further regulatory action if and when the project proceeded.

 The full appeal court decision may be found at 2010-09-10-federal-court-of-appeal-reasons. The Supreme Court provides no additional reasons.

IMPLICATIONS OF THE DECISION TODAY With the decision today by the Supreme Court of Canada and  the Federal Court of Appeal’s decision on April 13, 2016 upholding the environmental assessment for the refurbishment of Ontario Power Generation’s four Darlington reactor units, the ability to challenge the CNSC’s scoping of nuclear projects , or the  factors to be assessed as part of the EA, will now be limited to determinations of fact and law on issues central to the Commission’s  decision made without regard to evidence , in bad faith  or for an improper purpose. Deference to responsible authorities and joint review panels under CEAA has been reaffirmed.

FEDERAL COURT OF APPEAL UPHOLDS DARLINGTON REFURBISHMENT EA

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On April 13, ampoule 2016, the Federal Court of Appeal dismissed the appeal of the Federal Court decision to dismiss the application for judicial review of the environmental assessment (EA) decision on the refurbishment and continued operation of the Darlington Nuclear Generating Station.

The appeal was commenced in November 2014 by Greenpeace Canada, the Canadian Environmental Law Association, Lake Ontario Waterkeeper and Northwatch. They argued that the Federal Court erred in dismissing their application for judicial review because the Responsible Authorities unreasonably excluded severe low-probability nuclear accidents from the scope of the assessment. They also claimed that the Federal Court unreasonably failed to adequately consider the long-term management of nuclear fuel waste.

The Federal Court of Appeal did not agree. Its decision, among other points, stated that “…the Canadian Nuclear Safety Commission 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. It is therefore inappropriate for a reviewing court to second-guess these determinations through a detailed re-examination of the evidence as the appellants would have us do in the instant case.” [60]

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143472/index.do

More Information Sought on Low and Intermediate Level Nuclear Waste Repository

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The following news release appeared on the CNSC website on February 18, 2016 — The Minister of Environment and Climate Change, the Honourable Catherine McKenna, today requested additional information and further studies on the environmental assessment for the proposed Deep Geologic Repository (DGR) Project for Low and Intermediate Level Radioactive Waste in Kincardine, Ontario.

After considering the Joint Review Panel Environmental Assessment Report, the Minister has requested that the proponent, Ontario Power Generation, provide additional information on three aspects of the environmental assessment: alternate locations for the project, cumulative environmental effects of the project, and an updated list of mitigation commitments for each identified adverse effect under the Canadian Environmental Assessment Act, 2012 (CEAA 2012).

Ontario Power Generation has been asked to provide the Canadian Environmental Assessment Agency, by April 18, 2016, with a schedule for fulfilling the information request. The Minister will contact the Panel, at a future date, regarding its role in the review of the additional information and studies.

The Minister’s request for information from the proponent has paused the timeline for an environmental assessment decision to be issued, as per section 54(6) of CEAA 2012. At a later date, the Minister will seek a further timeline extension from the Governor in Council.