Ontario Power Generation Inc. v. Greenpeace Canada

Ontario Power Generation Inc. v. Greenpeace Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2015-09-10
Neutral citation
2015 FCA 186
File numbers
A-282-14, A-283-14, A-285-14
Decision Content
Date: 20150910
Dockets: A-282-14
A-283-14
A-285-14
Citation: 2015 FCA 186
CORAM:
TRUDEL J.A.
RYER J.A.
RENNIE J.A.
Docket: A-282-14
BETWEEN:
ONTARIO POWER GENERATION INC.
Appellant
and
GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
AND BETWEEN
ONTARIO POWER GENERATION INC.
Appellant
and
GREENPEACE CANADA and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
Docket: A-283-14
AND BETWEEN:
CANADIAN NUCLEAR SAFETY COMMISSION
Appellant
and
GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
Docket: A-285-14
AND BETWEEN:
ATTORNEY GENERAL OF CANADA, MINISTER OF THE ENVIRONMENT, MINISTER OF FISHERIES AND OCEANS and MINISTER OF TRANSPORT
Appellants
and
GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
and
AND BETWEEN
ATTORNEY GENERAL OF CANADA
Appellant
and
GREENPEACE CANADA and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
Heard at Toronto, Ontario, on June 2, 2015.
Judgment delivered at Ottawa, Ontario, on September 10, 2015.
REASONS FOR JUDGMENT BY:
TRUDEL AND RYER JJ.A.
DISSENTING REASONS BY:
RENNIE J.A.
Date: 20150910
Dockets: A-282-14
A-283-14
A-285-14
Citation: 2015 FCA 186
CORAM:
TRUDEL J.A.
RYER J.A.
RENNIE J.A.
Docket: A-282-14
BETWEEN:
ONTARIO POWER GENERATION INC.
Appellant
and
GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
AND BETWEEN
ONTARIO POWER GENERATION INC.
Appellant
and
GREENPEACE CANADA and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
Docket: A-283-14
AND BETWEEN:
CANADIAN NUCLEAR SAFETY COMMISSION
Appellant
and
GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
Docket: A-285-14
AND BETWEEN:
ATTORNEY GENERAL OF CANADA, MINISTER OF THE ENVIRONMENT, MINISTER OF FISHERIES AND OCEANS and MINISTER OF TRANSPORT
Appellants
and
GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
and
AND BETWEEN
ATTORNEY GENERAL OF CANADA
Appellant
and
GREENPEACE CANADA and CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Respondents
REASONS FOR JUDGMENT
RENNIE J.A. (dissenting)
[1] These are consolidated appeals from a decision of the Federal Court (2014 FC 463) that granted, in part the respondents’ judicial review application of an environmental assessment conducted by a Joint Review Panel (the Panel) appointed pursuant to the Canadian Environmental Assessment Act, SC 1992, c 37 (the Act).
[2] For the following reasons I would set aside part of the Federal Court decision, and remit to the Panel the consideration of the environmental implications of hazardous emissions. A copy of these reasons shall be placed in the Court files with respect to A-283-14 and A-285-14 as reasons therein in accordance with the Order of this Court dated July 23, 2014.
I. Background A. The project [3] In June 2006, the Ontario Ministry of Energy directed Ontario Power Generation (OPG) to begin the approvals process for the installation and operation of new nuclear power generation units at the existing Darlington Nuclear Generating Station, located on the Lake Ontario shoreline in Clarington, Ontario. Pursuant to this directive, OPG submitted an application to the Canadian Nuclear Safety Commission (CNSC) in September 2006 for a license to prepare the Darlington site for construction of up to four new nuclear reactors (the Project).
[4] The Project consists of site preparation; construction of the four new reactors and associated facilities; the operation and maintenance of the reactors and related facilities for approximately 60 years, including the management of conventional and radioactive waste, and the decommissioning of the nuclear reactors and abandonment of the site.
B. The legislative context [5] Nuclear power plants, defined under the Nuclear Safety and Control Act, SC 1997, c 9 (NSCA) as Class I nuclear facilities, undergo a staged licensing process. Each of the five phases in the lifecycle of the power plant (site preparation, construction, operation, decommissioning and abandonment) requires a licence from the CNSC under subsection 24(2) of the NSCA. In addition to the licensing requirements under the NSCA, the Project also requires approval under the Fisheries Act, R.S.C. 1985, c F-14 and the Navigation Protection Act, R.S.C. 1985, c. N-22. These federal licencing requirements trigger the requirement of an environmental assessment under the Act.
[6] A federal authority who has a responsibility to ensure that an environmental assessment (EA) is carried out under the Act becomes a “responsible authority” pursuant to subsection 11(1). The responsible authority (RA) must ensure that an EA is conducted “as early as is practicable in the planning stages of the project and before irrevocable decisions are made”. The RAs for the Project were the CNSC, the Department of Fisheries and Oceans, and Transport Canada.
[7] Pursuant to paragraph 15(1)(b) and subsection 33(1) of the Act, the Minister of the Environment may refer an EA to a review panel. Where a project requires assessments and reviews by multiple federal authorities, the Act allows the Minister to enter into an agreement with those authorities to establish a joint review panel and to fix the terms of reference. The review panel’s terms of reference establish the scope of the project for EA purposes. In the present case, a joint review panel was established to conduct both an EA under the Act, and also serve as a CNSC panel to determine OPG’s construction license application under the NSCA.
[8] Subsection 16(1) of the Act enumerates the mandatory factors that must be considered by every review panel when conducting an EA:
16.(1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
16. (1) L’examen préalable, l’étude approfondie, la médiation ou l’examen par une commission d’un projet portent notamment sur les éléments suivants :
(a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;
a) les effets environnementaux du projet, y compris ceux causés par les accidents ou défaillances pouvant en résulter, et les effets cumulatifs que sa réalisation, combinée à l’existence d’autres ouvrages ou à la réalisation d’autres projets ou activités, est susceptible de causer à l’environnement;
(b) the significance of the effects referred to in paragraph (a);
b) l’importance des effets visés à l’alinéa a);
(c) comments from the public that are received in accordance with this Act and the regulations;
c) les observations du public à cet égard, reçues conformément à la présente loi et aux règlements;
(d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and
d) les mesures d’atténuation réalisables, sur les plans technique et économique, des effets environnementaux importants du projet;
(e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.
e) tout autre élément utile à l’examen préalable, à l’étude approfondie, à la médiation ou à l’examen par une commission, notamment la nécessité du projet et ses solutions de rechange, — dont l’autorité responsable ou, sauf dans le cas d’un examen préalable, le ministre, après consultation de celle-ci, peut exiger la prise en compte.
[9] The duties of a review panel are elaborated upon in section 34 of the Act. Specifically, a review panel is required to gather information, ensure that information is made available to the public, hold hearings, and prepare a report setting out “the rationale, conclusions and recommendations relating to the environmental assessment of the project, including any mitigation measures and follow-up programs”.
[10] Finally, following the submission of a report by a review panel, the RAs and other federal authorities involved in the EA prepare a response for consideration by the Governor in Council. Pursuant to paragraph 37(1.1)(c), if the Governor in Council approves the response to the review panel’s report, the RAs are then in a position to “take a course of action” that conforms to the decision of the Governor in Council. The course of action depends on whether the project is likely to cause significant adverse environmental effects, and, if so, whether those effects can be justified in the circumstances. If the project is not likely to cause significant adverse environmental effects, and taking into account the implementation of any mitigation measures the RA deems appropriate, then the RA “may exercise any power or perform any duty or function that would permit the project to be carried out in whole or in part.”
[11] As I will discuss, whether the Panel report meets or discharges the obligations in section 16 lies at the core of this appeal.
C. EA process for the Project [12] On January 8, 2008 the President of the CNSC requested that the Minister refer the Project to a review panel, and on March 20, 2008, a joint review panel was established given that the Project required the involvement of both the Canadian Environmental Assessment Agency (the Agency) and the CNSC (the Panel).
[13] After a public review period, the CNSC and the Agency published the Panel Agreement and the Environmental Impact Statement Guidelines (the EIS Guidelines). The Panel Agreement defined the Project as “the preparation of a site for, and the construction, operation, decommissioning and abandonment of, up to four new nuclear power reactors on the existing Darlington Nuclear Site within the Municipality of Clarington, Ontario described in Part I of the Appendix to this Agreement.”
[14] The Terms of Reference described the scope of the Project and the activities that would be expected to occur in the various phases of the Project. In the operation and maintenance phase, activities would include “management of low and intermediate waste and spent fuel waste within the reactor building, and the transfer of wastes and used fuel for interim or long-term storage.” Activities during the decommissioning phase could be “conceptually summarized” as including the “transfer of fuel and associated wastes to interim storage.”
[15] An Environmental Impact Statement (EIS) is prepared by the project’s proponent to allow a joint review panel, regulators and members of the public to understand the project, the existing environment, and the potential environmental effects of the project. The EIS is expected to conform to the EIS Guidelines prepared by the CEE Agency.
[16] In September 2009, OPG filed its EIS.
[17] At the time that OPG submitted its EIS, the Province of Ontario had not yet selected a specific reactor technology, the choice of which would have an impact on the EA. In consequence, the OPG prepared its EIS based on a “bounding approach” or “plant parameter envelope”. This approach involved identification of the significant design elements of the project and, for each of those elements, an assessment of adverse environmental effect based on each of the design options under consideration. Consequently, a composite picture of the maximum expected environmental impact was established. Ultimately, the bounding approach for the Project encompassed four different reactor technology options.
[18] In December 2010, the Panel determined that it had sufficient information to proceed with a public hearing on the Project. The hearing was conducted from March 21, 2011 until April 8, 2011. The Panel received 278 contributions, and on June 3, 2011, announced that it had obtained and made public the information needed to prepare its EA report.
[19] On August 25, 2011, the Panel submitted the Joint Review Panel Environmental Assessment Report (EA Report) to the Minister. The EA Report concluded that the Project was not likely to cause significant adverse environmental effects, provided the mitigation measures proposed and the commitments made by OPG during the review, as well as the Panel’s 67 recommendations, were implemented.
[20] The Governor in Council subsequently released the Government Response, expressing the federal government’s conclusion that the Project is not likely to result in significant adverse environmental effects. On May 8, 2012, pursuant to paragraph 37(1)(a) of the Act, the RAs stated that after taking into consideration the EA Report and the implementation of appropriate mitigation measures, they were of the opinion that the Project was not likely to cause significant adverse environmental effects.
[21] In August 2012, the CNSC issued OPG a site preparation licence.
[22] The respondents in this appeal commenced two applications for judicial review in the Federal Court, the first challenging the EA itself and the second challenging the issuance of the site preparation licence.
II. The decision under appeal [23] The respondents argued before the Federal Court Judge (the Judge) that there were 25 deficiencies in the EA Report. The Judge rejected the majority of the respondents’ arguments and in general found the EA Report to be “highly competent work” (Federal Court Decision at para 394).
[24] The Judge identified the applicable standard of review as reasonableness. He concluded that the issues raised engaged the expertise of the Panel and were questions of mixed fact and law. He explained that this standard required the Court to defer to the Panel’s determinations on such matters as “how far to go in gathering information, considering a particular factor, or reporting on one's rationale, conclusions and recommendations” (Federal Court Decision at para 27).
[25] The Judge noted that because the Act sets out specific duties and responsibilities for a review panel, a reviewing court “must go beyond assessing whether a panel came to a reasonable conclusion.” That is, the reviewing court “must have regard for the duties set out in the [Act], and ensure that the panel has complied with them”; however, in doing so, a “degree of deference is owed to the panel’s judgment in terms of how to fulfill those responsibilities in a given case.” The duties prescribed by the Act must be “interpreted and carried out reasonably in the circumstances” (Federal Court Decision at para 30).
[26] The respondents submitted that it was an error for the Panel to accept and apply the bounding approach, and this error resulted in a failure to comprehensively assess the environmental effects of the Project as required by subsections 15(3), 16(1) and (2), and 34(a) and (b) of the Act. The Judge rejected this argument and held there is “no one prescriptive method of conducting an EA.” Instead, the EA must “simply be conducted at a time and in a manner that results in consideration of the factors outlined in the Act” (Federal Court Decision at para 72). That is, the focus is not on the methodology employed in conducting an EA, per se, but on whether the environmental effects of a project can be “fully considered”: Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229, at para 41.
[27] Although the Judge concluded that the Panel’s use of the bounding approach was reasonable, he also noted that it was “incumbent on the Panel to ensure that the [bounding approach] methodology was fully carried out, or to explain why significant departures from it (that is, gaps in information about the bounding scenario) did not make the assessment non-compliant with the Act” (Federal Court Decision at paras 246-247).
[28] At the heart of this appeal are the Judge’s conclusions that the analysis of the Panel was incomplete in three areas: (1) consideration of hazardous substance emissions; (2) consideration of spent nuclear fuel; and (3) the deferral of the analysis of a severe common cause accident. In each area, the Judge held that the EA Report required more information to allow the Governor in Council to properly evaluate the Project in connection “society’s chosen level of protection against risk.” I turn to a summary of the Judge’s analysis of these three issues.
[29] In relation to hazardous substance emissions, the Judge determined that the Panel took a “short-cut by skipping over the assessment of effects, and proceeding directly to mitigation, which relates to their significance or their likelihood.” The Judge noted that this approach was in fact contrary to the approach the Panel claimed to have adopted at page 39 of the EA Report, and “makes it questionable whether the Panel has considered the Project’s effects at all in this regard.” Therefore, the assessment of the effects of hazardous substance releases did “not fully comply with the requirements of the [Act]” (Federal Court Decision at paras 275 and 282).
[30] Second, the Judge held that the record confirmed that the issue of the long-term management and disposal of spent nuclear fuel to be generated by the Project “has not received adequate consideration.” That is, the Panel “did not reasonably address the issue of the long-term management and disposal of used nuclear fuel in accordance with its obligations under [the Act], and must supplement or amend its Report accordingly” (Federal Court Decision at paras 297 and 318).
[31] Finally, in regards to severe “common cause” multi-reactor accidents, the Judge noted that such accidents “engage the realm of highly improbable, but possibly catastrophic, events” and on policy grounds, it is “logical that such scenarios should be considered by political-decision makers.” Further, the Judge held that the language of the statute did not support the Panel’s conclusion that the analysis of such accidents had to be conducted, but could be deferred until a later date. Rather, in his view the analysis had to be conducted as part of the EA so that it could be considered by political decision-makers. Therefore, the Judge determined that the Panel’s approach to this issue was “unreasonable and not in accordance with its obligations under the [Act]” (Federal Court Decision at paras 331, 334, 337).
[32] Consequently, the Judge remitted the EA back to the Panel for reconsideration of these three matters, and quashed the licence to prepare the site on the ground that the EA had yet to fully comply with the Act.
III. Analysis A. Standard of review on appeal [33] The parties agree that on appeal of an order issued in an application for judicial review, the task of this Court is to determine whether the Judge below identified the appropriate standard of review and applied it correctly: Agraira v Canada (Minister of Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, 2013 SCC 36; put otherwise, the appeal court itself reviews the tribunal decision on the standard of review.
[34] As previously stated, the Judge characterized the issues before him as questions of mixed fact and law, and as such he concluded that the Panel’s findings in the EA Report were subject to review on the reasonableness standard.
[35] As previously stated, the Judge characterized the issues before him as questions of mixed fact and law, and as such he concluded that the Panel’s findings in the EA Report were subject to review on the reasonableness standard.
[36] The parties agree that the Judge chose the appropriate standard of review. They disagree as to its application.
[37] Generally speaking, the three parties appealing the Judge’s decision (OPG, CNCS, and the Attorney General of Canada) submit that the Judge failed to show, in relation to the three matters, deference to the Panel’s assessment of the nature and sufficiency of the evidence required by the reasonableness standard of review, and instead, he substituted his own view of the evidence on those issues.
[38] The respondents, on the other hand, contend that the essence of the appellants’ complaint is that the Judge, while deferential, was not sufficiently deferential. They noted that the Judge did not re-weigh the evidence before the Panel; rather, the essence of the Judge’s decision is that the Panel did not do what it was required to do under the Act.
[39] I turn now to the first of the three areas where it is said that the Judge erred.
B. Hazardous substance emissions [40] With the exception of air quality, OPG did not provide the Panel with a bounding scenario representing the use, storage and release of hazardous substances from the Project. Further, no bounding scenario was to be provided until the reactor was chosen. As such, the Panel relied upon an assessment that various commitments, recommendations, and regulatory controls would ensure the Project did not have significant adverse effects on the terrestrial and surface water environments.
[41] The Panel itself commented on OPG’s failure to provide objective measurements for the purpose of a bounding scenario. OPG did follow its own methodology, in other words, it did not follow the bounding scenario, nor did it provide objective measurements of projected emissions. It stated that “OPGs strategy does not comply with the EIS Guidelines” pertaining to liquid effluent release into Lake Ontario. In this regard, the Panel also said that the lack of information precluded “confirmation of the conclusions reached concerning possible environmental effects from liquid effluents” (EA Report at 65).
[42] Similarly, Environment Canada observed that there was insufficient information to assess the potential effects of either the liquid effluent or stormwater runoff from the project. It also commented on the absence of detailed mitigation plans, in part because there had been no identification of the environmental effects. Environment Canada also noted that OPG’s approach towards hazardous emissions “defers government and public review of process effluents until the CNSC’s regulatory review for the consideration of a Licence to Construct under [NSCA]” (Federal Court Decision at para 257).
[43] The Judge concluded that the Panel's conclusions and recommendations in respect of hazardous emissions did not comply with the requirements of the legislation. In the absence of evidence of the nature of contaminants, and the frequency and degree of discharge, the report could not comply with the requirements of section 16. Simply put, the conclusion that there would not be any significant adverse effects was unreasonable.
[44] The Judge was, in my view, properly concerned about the lack of information before the Panel with respect to hazardous emissions. Neither the Panel nor Environment Canada could assess the environmental effects as required by subsection 16(1) due to the lack of information about the full suite of non-radioactive materials which are to be stored, used, and discharged into the air and water if the Project proceeds. Despite the absence of any information, the Panel found it possible to conclude that the Project is not likely to have significant adverse effects based on proponent commitments, mitigation measures and regulatory controls. This conclusion, in my view, is unreasonable.
[45] The appellants contend that the Judge erred in not considering that the EA was a “preliminary planning tool” and that the assessment of effects was “not to be conceptualized as a single, discrete event”, but an as an ongoing dynamic process: Alberta Wilderness Assn. v. Express Pipelines Ltd., [1996] FCJ No 1016, 137 DLR (4th) 177 (FCA); Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302 at para 24. They rely heavily on the fact that there will be further regulatory licence conditions to be met, and that it was reasonable to rely on the prospective regulatory approvals to mitigate the effects.
[46] Specifically, OPG lists all of the legal requirements, quality standards and necessary approvals that would be required for the Project, including authorization under the Fisheries Act, compliance with the Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem, and compliance with Good Industry Management Practices, among other regulatory regimes.
[47] In the same vein, the Panel excused non-compliance with the EIS Guidelines reasoning that OPG was entitled to rely on various commitments, recommendations and regulatory controls. Specifically, the Panel concluded that as “…CNSC staff indicated that there is experience of similar regulatory release limits and management practices being applied at other nuclear facilities to control and minimize effects in the surface water environment”, OPG may rely on best management practices to ensure the Project does not have significant adverse effects (EA Report at 65).
[48] The respondents do not quarrel with the proposition that it is reasonable to rely on compliance on regulatory regimes as part of the consideration of mitigation. They do, however, say that the proposed mitigation measures and regulatory regimes do not establish clear standards that can serve as a proxy for actual effects. As such, it is unreasonable to rely on unspecified regulatory regimes or mitigation measures when the effects of hazardous emissions are also unspecified.
[49] I agree with this assertion. It is not reasonable for the Panel to rely on OPG’s list of vague regulatory regimes and mitigation measures, while failing to assess in any way the effects of hazardous substance releases. That is, the Panel’s assessment in regards to hazardous emissions was entirely speculative. This is illustrated by Recommendation 14, which provided that, following the selection of reactor technology, the CNSC require OPG to “conduct a detailed assessment of predicated effluent releases from the project” and further, that it conduct a “risk assessment on the proposed residual releases to determine whether additional mitigation measures may be necessary” (EA Report at 65).
[50] The effect of such a recommendation is that the Panel has avoided its statutory obligation, and instead placed sole responsibility for section 16 considerations on Project proponent after the completion of the EA process. In essence, the Panel: (1) acknowledged there was not enough information to assess the environmental effects of hazardous emissions; (2) therefore required that OPG assess any potential environmental effects; and then (3) concluded, in the absence of information about effects and mitigation measures, that the Project is not likely to cause adverse environmental effects. This renders the Panel’s decision unreasonable according to the standard of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. There is no clear, intelligible line of reasoning and the decision does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[51] Further, the Panel’s conclusion is antithetical to the purpose of the Act, which has been described as a federal “look before you leap” statute that serves as “an integral component of sound decision-making”: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3 at para 95. The Act ensures that projects, and their environmental effects, receive “careful and precautionary consideration” as “early as is practicable in the planning stages of the project and before irrevocable decisions are made”: see the Act, preamble, subsections 2(1), 4(1), 4(2) and 11(1); Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 FC 229. However, the EA must also be conducted at a stage when the project’s environmental implications can be fully considered, and when it can be determined whether the project may potentially cause adverse environmental effects.
[52] In the present case, it cannot be said that the Panel fully considered the environmental implications of hazardous emissions. As the Judge pointed out, the problem with the approach taken by the Panel is that it undermines Parliament’s intention with respect to who decides the level of acceptable environmental impact from a project (Federal Court Decision at para 281). Leaving this decision in the hands of the Project proponent post EA, in my view, short-circuits the process under the Act where an expert body evaluates the evidence regarding the Project’s likely effects, and the political decision-makers evaluate whether that level of impact is acceptable in light of policy considerations (Federal Court Decision at para 281).
C. Consideration of spent nuclear fuel [53] The second deficiency of the EA as found by the Judge was in relation to the management of spent nuclear fuel. The key paragraphs are 297-298:
In my view, the record confirms that the issue of the long-term management and disposal of spent nuclear fuel to be generated by the Project has not received adequate consideration…[A] decision about the creation of that waste is an aspect of the Project that should be placed before the s. 37 decision-makers with the benefit of a proper record regarding how it will be managed over the long-term, and what is known and not known in that regard.
[…]
I conclude on this issue that the Panel did not reasonably address the issue of the long-term management and disposal of used nuclear fuel in accordance with its obligations under [the Act], and must supplement or amend its Report accordingly.
[54] The Judge engaged in a detailed review of the evidence before the Panel on the issue of long-term storage of spent fuel. He concluded that the Panel did not generate a “full factual record” needed by federal decision-makers before they could make an informed decision under the Act. Further, the Judge held that neither the Panel’s Terms of Reference nor the EIS Guidelines rendered the storage of spent nuclear fuel a “separate issue” that could be hived off from the EA or deferred to such time as the agency charged with finding a long term solution for the storage of nuclear waste (the Nuclear Waste Management Office, or NWMO) sought approval for its proposed facility, should that day come.
[55] In consequence, he set out four questions or areas of consideration that in his view, were required to be addressed before the Panel could discharge its duty under section 16. These deficiencies included the effect the addition of spent fuel from enriched uranium would have on the management and disposal of nuclear waste; the likelihood that a long term storage facility would be both appropriate and available, alternatives to burying the waste underground, and the cost implications of various scenarios.
[56] In my view, these questions required the Panel to go beyond its Terms of Reference. The terms did not require the Panel to consider the viability of long-term off-site storage of waste. The Terms of Reference were restricted to the management of low and intermediate waste and spent fuel waste within the reactor building, and the transfer of wastes and used fuel for interim or long-term storage during the operation phase of the Project, and transfer of fuel and associated wastes to interim storage during the decommissioning phase. Nevertheless, the Panel considered and rejected, for a number of reasons, OPG’s plan to ship nuclear fuel to off- site storage. It therefore made two specific recommendations, Nos. 52 and 53 (page 382 of JAB, Vol. 2 Tab 8), requiring that all nuclear waste be stored on site in perpetuity and that this requirement be made a condition of further CNSC licence approvals.
[57] In addition, although the Panel did not explicitly consider in its assessment the effect the addition of spent fuel from enriched uranium would have on the management and disposal of nuclear waste, it acknowledged OPG’s position that if the spent fuel comprised enriched uranium, there would be appropriate design modifications in the containers and at the on-site storage facility (EA Report at 117).
[58] I would agree with the Judge that had the Panel deferred consideration of the issue of spent nuclear fuel to the Nuclear Waste Management Office (NWMO - the agency responsible for finding long term storage solutions) as urged originally by OPG, there would have been a concern as to whether the Panel had discharged its duty under section 16. However, that was not the case. The Panel’s recommendation and conclusions were predicated on OPG’s commitment to store all fuel on site and in perpetuity.
[59] The exploration by the Panel of the viability and appropriateness of a long term geological storage may have prompted the questions that the Judge considered to be unanswered; however, the failure to do so does not constitute a basis upon which the Panel decision with respect to spent fuel can be set aside. The Panel’s consideration of spent nuclear fuel was consistent with its Terms of Reference; that is, the Panel considered the issue and made specific recommendations which obviated the question of off-site storage, as well as transportation to and from any off site. It recommended that the fuel be stored on site in perpetuity.
[60] The Panel’s decision reveals a careful consideration of the issue of waste and includes a rationale for its conclusion. The conclusion was defensible notwithstanding unanswered questions and the Judge erred in essentially substituting his view for that of the Panel.
D. Sever common cause accidents [61] The third deficiency of the EA as found by the Judge was in relation to the Panel’s analysis of a severe “common cause” multi-reactor accident. The new reactors would be added to the Darlington site and its existing suite of reactors. OPG did not analyze the cumulative effect of a severe single accident affecting both existing and new facilities for scenarios “because they were considered hypothetical and to have a very low probability of occurring.” The Panel rejected OPGs interpretation of the guidance of the Act that this should be considered as a unique scenario:
The Panel is of the view that a more appropriate interpretation, in this instance, would have been to include a cumulative effects assessment of a common-cause accident involving multiple reactors in the site study area.
[62] In its report, the Panel noted that OPG had analyzed “a number of bounding radiological malfunctions and accidents” as part of its EIS. These included accidents in the handling of waste, transportation of new nuclear fuel, and malfunctions and accidents that could affect the reactor itself. For the majority of these scenarios, the Panel concluded that potential radiological releases would be below regulatory limits and there would be no significant adverse environmental effects.
[63] With respect to accidents within the reactor itself, the Panel stated that the bounding analysis met the qualitative and quantitative safety goals set out in the CNSC regulatory document (RD-337). It also noted that the design and safety requirements for new nuclear power plants would be specified and enforced at a later stage of the licencing process. In consequence, the Panel made two recommendations, Nos. 57 and 58 (page 389 of JAB, Vol. 2 Tab 8):
The Panel recommends that prior to construction, the Canadian Nuclear Safety Commission require OPG to undertake an assessment of the off-site effects of a severe accident. The assessment should determine if the off-site health and environmental effects considered in this environmental assessment bound the effects that could arise in the case of the selected reactor technology.
The Panel recommends that prior to construction, the Canadian Nuclear Safety Commission confirm that dose acceptance criteria specified in RD-337 at the reactor site boundary – in the cases of design basis accidents for the Project’s selected reactor technology – will be met.
[64] The Judge concluded that the standards in RD 337 “allows both the Panel and the s. 37 decision-makers to fulfill their responsibilities under the Act, even in the absence of complete design information at the outset of the Project” and that “with respect to the safety of the Project itself, the Panel’s analysis provides a sufficient factual basis for the decisions that needed to be made, and fulfills the Panel’s obligations under the Act” (Federal Court Decision at paras 328-329).
[65] What was not conducted, however, was an analysis of cumulative effects of accidents or malfunctions “that go beyond those contemplated by the RD-337 methodology”, such as accidents or malfunctions that affect both the existing and new plants given the Project is being built on the site of an existing nuclear generating station (Federal Court Decision at para 330).
[66] In this regard, the Judge observed, at paragraphs 331, 334 and 337:
This seems to engage the realm of highly improbable, but possibility catastrophic, events. On policy grounds, it is logical that such scenarios should be considered by political decision-makers, because once again they seem to engage mainly questions of “society’s chosen level of protection against risk” that will be difficult for a specialized regulator to assess with legitimacy. […]
In my view, the one conclusion that is not supported by the language of the statute is the Panel’s conclusion that the analysis had to be conducted, but could be deferred until later. Rather, in my view, it had to be conducted as part of the EA so that it could be considered by those with political decision-making power in relation to the Project.
In my view, then, the Panel’s approach to this issue was unreasonable and not in accordance with its obligations under the [Act] and it needs to be revisited in some supplement or amendment to the Report.
[67] The error, according to the Judge, was that having reached the conclusion that these effects needed to be considered, the Panel erred in not insisting that it take place within the framework of the EA process. The purposes of section 37 could not be fulfilled. The Panel’s approach, in deferring the matter, was both inconsistent with its obligations under section 16 (“shall include a consideration of…the environmental effects”) and it was unreasonable.
[68] I would agree with the Judge that it would be an error if the Panel had identified an environmental issue, deferred consideration of its effects to a later date, but nevertheless concluded that the project was unlikely to have any significant environmental effects; however, this is not how I read the decision of the Panel. It directed its consideration to the possibility of a severe common cause accident, and made two specific recommendations in respect of those concerns (see Recommendation Nos. 63 and 64).
[69] The analysis here is contextual. It turns on whether the decision maker had sufficient information of the environmental effects, together with mitigation measures, to make the assessment and recommendations that it did. In this case, the issue was a highly improbable severe accident, the parameters of which depended on any one of any number of hypothetical scenarios.
[70] The Act does not require that all accident scenarios, however improbable, be taken in to account. In Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 FC 263 (FCA) at 280-281, this court observed:
The second aspect involves the exercise of the discreti