Date: 20000523
Docket: T-906-99
Ottawa, Ontario, this 23rd day of May 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
INVERHURON & DISTRICT RATEPAYERS" ASSOCIATION
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE ATOMIC ENERGY CONTROL BOARD and
ONTARIO POWER GENERATION INCORPORATED
Respondents
REASONS FOR ORDER AND ORDER
PELLETIER J.
The Context
[1]
The Inverhuron and District Ratepayers Association ("IDRA" ) is a group of families and individuals who live near the Bruce Nuclear Power Development, a nuclear power plant located in Bruce County on the shores of Lake Huron. When Ontario Hydro, the predecessor of the respondent Ontario Power Generation, announced that it intended to develop a dry storage facility for spent nuclear fuel on the site, the members of IDRA used the process under the Canadian Environmental Assessment Act (the "Act"), R.S.C. 1985 c. C-15.2 to attempt to influence the course of the project. They found the process wanting and, when they learned that the Minister of the Environment (the "Minister") had approved the project, they launched this application for judicial review.
[2] Nuclear power plants produce, in addition to electricity, used nuclear fuel for which there is currently no permanent means of disposal. As a result, nuclear power plant operators need to store the used fuel until a permanent storage solution is adopted. At the Bruce Nuclear Power Development, the used fuel bundles are stored in trays which fit into containers which are kept underwater in two storage bays. These bays are nearly filled to capacity so additional storage is required. Ontario Hydro decided that the additional storage should be dry storage, that is storage in containers which are not kept underwater. Ontario Hydro proposes to move fuel whose level of radioactivity has decreased as a result of being stored for a period of time, no less than 10 years but more likely up to 25 years, from the underwater storage to dry storage containers1, and to then transport the dry storage containers to the storage area. The issues to be resolved in designing this process include the size and type of the dry storage containers, the method by which the used fuel is transferred from wet storage to the dry storage containers (in the open air or underwater), the method of transporting the dry storage containers to the storage facility and the design of the storage facility itself.
[3] Before the project could be implemented, the assessment process prescribed in the Act had to be carried out. The applicant"s Notice of Application identifies a number of deficiencies with the process but in his oral submissions, counsel limited himself to two major issues which, he says, require that the Court intervene in the process. IDRA says that the Minister cannot deal with the project on the basis of the existing comprehensive study and Comprehensive Study Report because they refer to a different project. Most of the analysis in the report is with respect to one particular configuration of container (containing 600 bundles of fuel), transfer process (dry) and storage (open air) while the project which the Minister approved involves a different container (384 bundles), transfer process (wet) and storage (in a building). The result, says IDRA, is that the design which is to be built has not been the subject of a comprehensive study or Comprehensive Study Report and to the extent that the Minister has purported to remit the project to the Atomic Energy Control Board ("AECB" ) for implementation, she has done so on the basis of irrelevant considerations, that is, a study of a design which is not the one to be constructed.
[4] IDRA also complains that certain relevant materials were not filed, or were not filed in a timely manner in the public registry which is required to be established and maintained by section 55 of the Act. One of the objectives of the Act is to involve the public in the assessment process. The registry requirement is designed to allow members of the public to access information about proposed projects so that they can make meaningful comments. In this case, a report prepared for Ontario Hydro by GE Canada evaluating alternate system designs was not placed on the registry. IDRA believes that this is significant because the report contains a report from a consultant retained by GE Canada which says that the implementation of the alternative which was ultimately adopted would require major revisions to the environmental assessment of the project. Had this material been placed in the registry, stakeholders could have drawn the Minister"s attention to the consultant"s report and insisted that the Minister send the project to a review panel for further consideration. Furthermore, no notice of the final design choice was ever placed on the registry so that stakeholders could not know that the design had changed from the original Reference Design to some other design. IDRA says that this too detracted from the ability of the applicant to make effective representations to the Minister.
[5] IDRA argues that these two deficiencies create a situation in which this Court would be justified in setting aside the Minister"s decision and in directing the Minister to refer the project to a review panel or a mediator.
[6] The respondents2see things differently. They say that the environmental assessment process is a planning process which does not require that all design alternatives be settled before the assessment is performed. All that is required, they say, is that the alternatives be sufficiently identified that they can be assessed. The manner and timing of that assessment are matters which fall within the expertise of the responsible authority which is the AECB, and in respect of which the AECB is entitled to deference from the Court by reason of its expertise. In this case, the alternative which was ultimately adopted was identified as a possibility from the very start of the assessment, was assessed by comparison to a reference design and was clearly identified as the likely choice in the study documents, subject only to confirmation. The project which the Minister referred back to AECB is indeed the project which was the object of the Comprehensive Study Report.
[7] As for the filing of the GE Canada report, the respondents say that the report was prepared for Ontario Hydro and was never put before the Minister so that there was no obligation to file it. Furthermore, the consultant"s recommendations upon which IDRA places such emphasis were never accepted by Ontario Hydro. The absence of the notice of the final design choice from the registry did not prevent others, including a group which retained the same consultants as did the IDRA, from making extensive detailed submissions on the shortcomings of the designated design choice. Any deficiency in filings is merely a technical breach which does not justify the Court"s intervention.
[8] The respondents also say that if the Court decides it must intervene, the appropriate remedy depends upon the breach justifying the intervention. If it is the failure to properly assess the final design choice, then the remedy is to send it back to AECB for a proper assessment. On the other hand, if it is a failure to comply with the registry requirements, then the remedy is to reopen the public comment period to allow those who wish to comment to do so, following which the Minister will once again decide how the matter should proceed.
The History
[9] With this framework in mind, we turn to a more detailed chronology.
[10] In the summer and fall of 1996, Ontario Hydro published a number of notices in local newspapers in the area of the Bruce Nuclear Power Development (the Bruce facility) indicating its intention to develop a used fuel dry storage facility and inviting interested parties to an open house meeting where more details would be provided. The notices contained the following information:
| The Atomic Energy Control Board (AECB) is the responsible authority for reviewing the Bruce Used Fuel Dry Storage proposal. Ontario Hydro will prepare an environmental assessment under the Canadian Environmental Assessment Act (CEAA) as part of the licensing requirements for the proposal. Public comments and input will be included in the EA document submitted to the AECB. |
[11] AECB is the regulator of the nuclear industry in Canada pursuant to the terms of the Atomic Energy Control Act, R.S.C. 1985 c. A-16. It licenses nuclear power plants in Canada; the development of the dry storage facility required its approval. This requirement triggered the operation of the Act:
| 5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority
(a) is the proponent of the project and does any act or thing that commits the federal authority to carrying out the project in whole or in part;
(b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except where the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the Act, regulation or order that provides the relief to be carried out;
(c) has the administration of federal lands and sells, leases or otherwise disposes of those lands or any interests in those lands, or transfers the administration and control of those lands or interests to Her Majesty in right of a province, for the purpose of enabling the project to be carried out in whole or in part; or
(d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.
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5. (1) L'évaluation environnementale d'un projet est effectuée avant l'exercice d'une des attributions suivantes_:
a) une autorité fédérale en est le promoteur et le met en oeuvre en tout ou en partie;
b) une autorité fédérale accorde à un promoteur en vue de l'aider à mettre en oeuvre le projet en tout ou en partie un financement, une garantie d'emprunt ou toute autre aide financière, sauf si l'aide financière est accordée sous forme d'allègement "notamment réduction, évitement, report, remboursement, annulation ou remise "d'une taxe ou d'un impôt qui est prévu sous le régime d'une loi fédérale, à moins que cette aide soit accordée en vue de permettre la mise en oeuvre d'un projet particulier spécifié nommément dans la loi, le règlement ou le décret prévoyant l'allègement;
c) une autorité fédérale administre le territoire domanial et en autorise la cession, notamment par vente ou cession à bail, ou celle de tout droit foncier relatif à celui-ci ou en transfère à Sa Majesté du chef d'une province l'administration et le contrôle, en vue de la mise en oeuvre du projet en tout ou en partie;
d) une autorité fédérale, aux termes d'une disposition prévue par règlement pris en vertu de l'alinéa 59f), délivre un permis ou une licence, donne toute autorisation ou prend toute mesure en vue de permettre la mise en oeuvre du projet en tout ou en partie.
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[12] Paragraph 59(f) of the Act allows the Minister to designate which licensing and approval requirements by federal authorities will trigger the operation of paragraph 5(1)(d). It is common ground that approvals under the Atomic Energy Control Act are designated under paragraph 59(f). As a result, a Federal authority, AECB, will issue a permit for the purpose of enabling a project to be carried out, which has the effect of triggering the Canadian Environmental Assessment Act. |
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[13] Once the Act is triggered, the next issue is the type of process which must be undertaken and who is responsible for undertaking it. The opening words of section 5 "An environmental assessment of a project is required..."do not define the type of assessment required since "environmental assessment"is defined as an assessment conducted in accordance with the Act. Section 14 contemplates that an assessment can consist of a screening or a Comprehensive Report. Section 18 provides that where a project is not on the Comprehensive Study List or the Excluded List, a screening shall be performed. The Comprehensive Study List is a regulation made pursuant to paragraph 59(d) of the Act which permits the Governor in Council to designate projects or types of projects which require comprehensive study. Part VI of the Comprehensive Study Regulations deals with nuclear facilities and refers specifically to storage facilities. Section 21 provides that where a project is listed on the Comprehensive Study List, a comprehensive study shall be undertaken and a Comprehensive Study Report shall be prepared and forwarded to the Minister and the Canadian Environmental Assessment Agency. |
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[14] A comprehensive study is defined as "an environmental assessment that is conducted pursuant to section 21 and that includes a consideration of the factors required to be considered under subsections 16(1) and (2)". Those factors are set out below: |
| 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:
(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;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public that are received in accordance with this Act and the regulations;
(d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and
(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.
(2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the purpose of the project;
(b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means;
(c) the need for, and the requirements of, any follow-up program in respect of the project; and
(d) the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future.
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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) 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) l'importance des effets visés à l'alinéa a);
c) les observations du public à cet égard, reçues conformément à la présente loi et aux règlements;
d) les mesures d'atténuation réalisables, sur les plans technique et économique, des effets environnementaux importants du projet;
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.
(2) L'étude approfondie d'un projet et l'évaluation environnementale qui fait l'objet d'une médiation ou d'un examen par une commission portent également sur les éléments suivants_:
a) les raisons d'être du projet;
b) les solutions de rechange réalisables sur les plans technique et économique, et leurs effets environnementaux;
c) la nécessité d'un programme de suivi du projet, ainsi que ses modalités;
d) la capacité des ressources renouvelables, risquant d'être touchées de façon importante par le projet, de répondre aux besoins du présent et à ceux des générations futures.
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[15] Ontario Hydro prepared a report dated January 1997 which it forwarded to AECB. AECB responded by advising Ontario Hydro in February 1997 that the project would require a comprehensive study in accordance with the Comprehensive Study Regulations. It was initially thought that the January 1997 report would satisfy the comprehensive study requirements but in March 1997, AECB wrote to Ontario Hydro to advise that further information would be required. Ontario Hydro then prepared an Addendum dated April 1997 which addressed some of the concerns raised in AECB"s letter of March 1997. On September 30, 1997, AECB wrote to Ontario Hydro confirming the latter"s request that the environmental assessment for the dry storage project be put on hold. As a result of "recent announcements concerning the Bruce A Nuclear Generating Station", Ontario Hydro thought it convenient to update the assessment and to "gather the information into one document".3 |
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[16] As a result, Ontario Hydro produced a document entitled Bruce Used Fuel Dry Storage Facility Environmental Assessment ("EA" or "the EA") dated December 1997. This document became the base document of the Comprehensive Study Report. Its contents are therefore significant in terms of what issues were considered in the comprehensive study. |
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[17] Section 2 of the EA described the scope of the project as follows: |
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The project scope includes the design and manufacturing of dry storage containers; necessary modifications to the fuel bays and systems to load fuel into the containers at the generating stations; a transporter to transfer the loaded containers to the storage facility; BNPD [Bruce Nuclear Power Development] road upgrades if necessary; preparation of the site and construction of the storage facility; and development of procedures for operation, maintenance, and monitoring of the storage facility. |
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[18] The reference to the design of dry storage containers is significant. At the time of the report, Ontario Hydro had not yet settled upon the design of the container, nor the process for moving the fuel from the underwater container to the dry storage container. Nonetheless, the report considered the environmental impacts of the project based upon what Ontario Hydro called its Reference Design. The Reference Design is one of the alternative designs under consideration. |
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[19] Because the design process was not complete, Ontario Hydro chose to proceed by selecting one possible design as the Reference Design for assessment purposes. Alternate designs would be assessed on the basis of the consequences of their deviation from the Reference Design design. That assessment would not necessarily be a quantitative assessment in the sense that it would not necessarily require a fresh set of calculations. If, on the basis of its experience, Ontario Hydro concluded that the environmental effects of an alternate design were in the same order of magnitude as the Reference Design, that judgement constituted the assessment of that design. |
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[20] The report described dry storage technology in the following terms: |
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2.2.3 Dry Storage Technologies |
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Dry storage technology is currently being used for used fuel storage at four Canadian nuclear reactor sites: AECL"s Douglas Point NGS (shut down) at BNPD, Ontario Hydro"s Pickering NGS, Hydro Quebec"s Gentilly NGS and New Brunswick Power"s Point Lepreau NGS. The technology is also widely accepted internationally as a safe and cost-effective method for used fuel storage because it is modular and can avoid large initial capital expenditures associated with wet (fuel bay) storage. Additional capacity can be added as required. Dry storage technology is passive, requiring minimal maintenance once fuel is in storage, and is more flexible for longer-term storage, as may be required to suit the schedule of Canada"s used fuel disposal program. |
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The dry storage technologies initially evaluated for this project included the existing Pickering design, design variations specific to BNPD needs, and technology from AECL. |
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[21] It is noteworthy that dry storage technology is not new technology and that Ontario Hydro had previous experience with it. |
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[22] The report then detailed four alternatives dry storage containers which were under consideration for the project; the alternatives were: |
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1) Bruce dry storage container holding 600 bundles of fuel in 25 trays loaded using the dry loading method.4 |
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2) Enlarged Pickering dry storage container5with trays holding 504 bundles of fuel in trays using the wet loading method. |
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3) Pickering dry storage container holding 384 bundles of fuel in four fuel modules using the wet loading method. |
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4) AECL CANSTOR module is a system designed by Atomic Energy Control Limited which stores 600 bundles of fuel using baskets which are filled in the fuel bay (wet loading). |
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[23] After consideration of environmental impact, resource use, public and worker exposure, community benefits and operability and costs, Ontario Hydro selected one alternative as being the most likely to be selected and designated it the Reference Design: |
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- dry loading from the fuel bays directly into the dry storage containers; |
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- 600 bundle dry storage container (BDSC-600) design using trays; |
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- common services (welding, leak testing etc.) located at the generating stations; |
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- on-site transporter similar to that being used at Pickering; and |
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- a central dry storage facility located adjacent to existing ... facility. |
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[24] The use which would be made of this Reference Design is described as follows: |
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The reference design is used as the basis of the main (most detailed and quantitative) component of the environmental effects assessment in this report, as documented in Sections 4.1 to 4.8. The potential implications of new design alternatives which may come out of the current system design studies, as outlined in Section 2.2.4 are addressed in Sections 4.9-4.11. The overall assessment conclusions in Section 9.0 are based on consideration of both the reference design and foreseeable alternatives currently being studied.6 |
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[25] Section 4 of the EA contains a comprehensive assessment of potential environmental effects using the Reference Design as the benchmark. Section 4.9 of the report then addresses the question of the alternate designs of the dry storage containers and describes the implications of the selection of one of those designs rather than the Reference Design. Section 4.9.3 addresses the differential effects of the alternate dry storage technologies. Because of its significance to the arguments advanced by the parties, it is reproduced in its entirety below: |
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Alternatives Currently Being Considered in Additional System Design Studies |
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Based on the scope of current system design studies outlined in Section 2.2.4., the potential design changes are expected to be largely within the range of the alternatives previously evaluated. From the environmental perspective, the key system design aspects currently being considered (different from the current reference design) are: |
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- wet loading at the station bays, as in the existing Pickering dry storage system; |
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- tray-to-module conversion prior to loading; |
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- 384-bundle containers using modules, similar to existing Pickering containers; and |
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- common services (such as welding, leak-testing, inspection, etc.) centralized at the dry storage facility, as in the existing Pickering system. |
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The main environmental implication of these potential design changes, as indicated in relation to the alternatives previously considered, is the reduced dry storage density associated with using smaller containers (Pickering DSC-384 instead of the reference Bruce DSC-600 design). This would require more storage space, for a given quantity of used fuel, and result in more on-site terrestrial environment disturbance and somewhat more frequent delivery of new containers from the off-site manufacturer. With the smaller container alternative, the current reference site layout (shown in Figure 2.1-2) would be sufficient in size if the Bruce A reactors are not returned from lay-up, and would probably be sufficient until at least the year 2015 if Bruce A is returned to service as presently planned (see Section 1.3). As indicated in Section 2.1, an advantage of the proposed site location is the space available for expansion if required. The local community traffic effects associated with delivery of the smaller containers would still be relatively small. As project implementation is proposed to develop in stages (per Section 2.1), there would be adequate opportunity in future to refine site development plans and appropriate environmental mitigation measures. |
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The possibility of changing to a wet loading system (including tray-to-module conversion) at the generating stations and co-location of common services at the dry storage facility are not expected to give rise to significantly different off-site environmental effects, compared to those associated with the current reference design. This general assessment is supported by the environmental and safety analysis documented in the Safety Report submitted to the AECB for approval of the first stage of the Pickering Used Fuel Dry Storage Facility (Ontario Hydro, 1994). |
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[26] Ontario Hydro decided to retain outside consultants to conduct the dry storage container design review. It chose GE Canada which produced a preliminary report in March of 1998. The Executive Summary of that report describes the process followed by the consultant and the shortlist of alternatives which it considered worthy of further consideration: |
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BRUCE USED FUEL DRY STORAGE PROJECT |
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SYSTEM DESIGN STUDY - PHASE I |
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In January of 1998, Ontario Hydro (OH) awarded two studies to focus on the Bruce Used Fuel Dry Storage Project (BUFDSP). They are known as the System Design Study and the Fuel Bay Review Study. |
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This report documents the System Design Study. Its purpose is to produce and study several concepts to provide for the transfer and dry storage of 10 year old used fuel from the bays. Then through a comparison process that gradually reduces the number of options, a preferred option is selected for which a performance specification is prepared. |
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This study was separated into three phases with this report documenting phase 1. Brainstorming and other methods were used to define ten alternative systems for dry storage. These many options were reduced to four short-listed options in phase 1A using a comparative ranking process that evaluates the criteria, mainly established by OH, as critical to the system; eg, safety, minimized cost, minimized impact on station operations and facilities, co-location of facilities required for the dry storage system, minimized operations staff involvement in the process, increased standardization, maximized use of known technology, operability, maintainability and licensability. The short-listed options are: wet loading a DSC in the primary bay (similar process to that used at Pickering), wet loading a DSC in the secondary bay (similar process to that used at Pickering), wet loading a DSC in a third bay attached to the secondary bay (similar process to that used at Pickering but no heavy lifts over the fuel bay are required) and wet loading a small on-site transportation container in the secondary bay which still requires container to DSC fuel transfer in a shielded room to be located at the common dry storage facility (DSF). The DTE concept did not score as high as these (mainly due to standardization and cost rankings) and at Ontario Hydro"s direction was not included in phase 1B. |
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These short-listed options were further defined in phase 1B with concept layouts and increased concept description provided. They were then ranked in the same manner described above. Overall, the third bay option scored the highest, mainly due to safety issue; ie, no heavy lifts directly over the fuel storage bay. The ranking also clearly showed that for wet loading directly in a fuel storage bay (as at Pickering) the secondary bay is the preferred choice, mainly because of operability issue; ie, does not require reverse transfer of the 10 year old fuel from the secondary bay, does not require hold up of the routine fuel transfer activities that take place in the primary bay and because the primary bay allowable floor loadings are lower than for the secondary bay both in and out of the bay. The small transportation container did not rank high due largely to operability (many in-bay loading repetitions required to fill one DSC) and the need for shielded fuel transfer from the container to the DSC. |
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Some of the above options will be further studied in phase 2 to define each system in more detail, substantiate the operational adequacy of the overall system and prepare system cost estimates. In phase 3 a performance specification will be prepared, for the preferred option, to allow tender of the design, supply and installation. |
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A cursory comparison of the existing Pickering DSC (holds 384 bundles in 4 modules) to the proposed Bruce DSC (designed to hold 600 bundles in 25 trays) was completed. This comparison is not complete enough to define a preferred container. |
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Safety recommendations are made for those concepts requiring heavy lifts over the fuel bays that follows a defence in depth approach due to the postulated severe consequences of a heavy load drop over the existing Bruce fuel bays with suspended concrete floors. |
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[27] The GE Canada report included an assessment by consultants retained by GE Canada of the implications of selection of various shortlist options on the environmental assessment process. Each of the shortlisted options was reviewed in terms of the changes required to the environmental assessment report if that option was selected. The option which was ultimately selected Third Bay (dry storage containers undefined) was said to require the following modifications to the environmental assessment report.7 |
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3.3 Third Bay (DSC Undefined) |
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Major revision of the environmental assessment will be necessary as the result of: |
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1. The construction of the third bay and associated modifications to the secondary bay. |
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2. The addition of a Pickering-style Dry Storage Container Processing Facility. The construction of this facility was not considered in the original environmental assessment. |
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3. If the Pickering DSC is adopted, the expansion of the outdoor Dry Fuel Storage Area to accommodate an increased number of Dry Storage Containers. As a result of the smaller capacity of the Pickering DSC more containers will be required to store the fuel that will be generated by the stations. |
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Minor revision of the environmental assessment will be required as the result of: |
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1. If the Pickering DSC is adopted, the larger number of containers, smaller source term and different container design will require a re-assessment of the radiation dose rates. (It may be possible to use measurements of the dose rates around the Pickering DSCs currently in use rather than calculated values if the source terms in the DSC at Pickering and Bruce are comparable). |
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The existing Environmental Assessment Report will have to be revised to: |
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1. Incorporate the results of the major and minor revisions to the environmental assessment, |
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2. Include a description of the new disposal concept rather than the "Dry Transfer Equipment" concept described in the existing EAR. |
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It may also be necessary to conduct a new public information campaign and to include a description of the new campaign in the EAR. |
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[28] In July 1998 Ontario Hydro issued an Addendum to its EA Report. The purpose of the Addendum was "to update the AECB and other stakeholders regarding project studies and consultation processes initiated or continued since the EA submission as well as to respond to comments on the EA received during the AECB/inter-governmental review process to date". |
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[29] Section 2 of the Addendum dealt with System Design Update. It identifies that Ontario Hydro is undertaking a system design study and that the study is being conducted for Ontario Hydro by GE Canada. The result of the study to date is said to show that "evaluation and comparison to date indicates that wet transfer technology has several advantages over the dry transfer technology used as part of the "Reference Design" for the EA and Preliminary Safety Report, including proven technology and processes, standardization of equipment and maintainability." |
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[30] This is followed by a section entitled "Comparisons to Designs considered in the EA". It begins by saying that "The short-list of options now being evaluated, from which the preferred system design concept will be considered, is within the range of options considered in the December 1997 EA (EA sections 2.2.4, 4.9.2, 4.9.3) except for the possible inclusion of a storage building...Ontario Hydro has applicable experience from the operation of the Pickering UFDSF [Used Fuel Dry Storage Facility], and there appears to be no negative environmental implications of incorporating a storage building in the overall system design." Ontario Hydro concludes that "In summary, the final system design is likely to remain within the range of technology options already assessed in the EA and/or implemented at the Pickering UFDSF." Table 1 summarizing the System Study Design progress has an entry which identifies the "Preferred System" which is "Likely wet loading/third bay with tray to module conversion" using the PDSC [Pickering dry storage container] container. The entry concludes by noting that this assessment is "to be confirmed by September 1998". |
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[31] On August 27, 1998, Ontario Hydro officials met with AECB staff and advised them that the dry storage container study had concluded that the design of choice was the wet loading of a Pickering style dry storage container, with the containers being housed in a storage building where all services to the containers would be centralized.8 This was formally confirmed in a letter from Ontario Hydro (Nash) to AECB (Howard) dated October 9, 1998. Ontario Hydro indicated that the design of choice would be communicated to the public in a newsletter, but this never occurred. |
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[32] On September 18, 1998, the Comprehensive Study Report was provided to the Canadian Environmental Assessment Agency (the "Agency") and to the Minister9. The Comprehensive Study Report consisted of the EA Report, the July 1998 Addendum, a Summary Report prepared by AECB and a collection of supplementary information which is not relevant to this application. The submission to the Agency and the Minister was pursuant to section 21 of the Act. |
| 21. Where a project is described in the comprehensive study list, the responsible authority shall
(a) ensure that a comprehensive study is conducted, and a comprehensive study report is prepared and provided to the Minister and the Agency; or
(b) refer the project to the Minister for a referral to a mediator or a review panel in accordance with section 29.
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21. Dans le cas où le projet est visé dans la liste d'étude approfondie, l'autorité responsable a le choix_:
a) de veiller à ce que soit effectuée une étude approfondie et à ce que soit présenté au ministre et à l'Agence un rapport de cette étude;
b) de s'adresser au ministre afin qu'il fasse effectuer, aux termes de l'article 29, une médiation ou un examen par une commission.
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Following receipt of the Comprehensive Study Report, the Agency issued a public notice on September 23, 1998, advising that the Comprehensive Study Report had been received and inviting public comment. The invitation for public comments was made pursuant to section 22 of the Act: |
| 22. (1) After receiving a comprehensive study report in respect of a project, the Agency shall, in any manner it considers appropriate to facilitate public access to the report, publish a notice setting out the following information:
(a) the date on which the comprehensive study report will be available to the public;
(b) the place at which copies of the report may be obtained; and
(c) the deadline and address for filing comments on the conclusions and recommendations of the report.
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22. (1) Quand elle reçoit un rapport d'étude approfondie, l'Agence donne avis, de la façon qu'elle estime indiquée pour favoriser l'accès du public au rapport, des éléments suivants_:
a) la date à laquelle le rapport d'étude approfondie sera accessible au public;
b) le lieu d'obtention d'exemplaires du rapport;
c) l'adresse et la date limite pour la réception par celle-ci d'observations sur les conclusions et recommandations du rapport.
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The opportunity for members of the public to make comments about proposed projects is an important aspect of the environmental assessment process. It is recognized as one of the purposes of the legislation: |
| 4. The purposes of this Act are
(a) to ensure that the environmental effects of projects receive careful consideration before responsible authorities take actions in connection with them;
(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy;
(b.1) to ensure that responsible authorities carry out their responsibilities in a coordinated manner with a view to eliminating unnecessary duplication in the environmental assessment process;
(c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; and
(d) to ensure that there be an opportunity for public participation in the environmental assessment process.
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4. La présente loi a pour objet_:
a) de permettre aux autorités responsables de prendre des mesures à l'égard de tout projet susceptible d'avoir des effets environnementaux en se fondant sur un jugement éclairé quant à ces effets;
b) d'inciter ces autorités à favoriser un développement durable propice à la salubrité de l'environnement et à la santé de l'économie;
b.1) de faire en sorte que les autorités responsables s'acquittent de leurs obligations afin d'éviter tout double emploi dans le processus d'évaluation environnementale;
c) de faire en sorte que les éventuels effets environnementaux négatifs importants des projets devant être réalisés dans les limites du Canada ou du territoire domanial ne débordent pas ces limites;
d) de veiller à ce que le public ait la possibilité de participer au processus d'évaluation environnementale.
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[35] One of the devices which the Act provides to assist in this process is the maintenance of a registry in which documents which are relevant to the assessment process must be filed. |
| (3) Subject to subsection (4), a public registry shall contain all records produced, collected, or submitted with respect to the environmental assessment of the project, including
(a) any report relating to the assessment;
(b) any comments filed by the public in relation to the assessment;
(c) any records prepared by the responsible authority for the purposes of section 38;
(d) any records produced as the result of the implementation of any follow-up program;
(e) any terms of reference for a mediation or a panel review; and
(f) any documents requiring mitigation measures to be implemented.
(4) A public registry shall contain a record referred to in subsection (3) if the record falls within one of the following categories:
(a) records that have otherwise been made available to the public in carrying out the assessment pursuant to this Act and any additional records that have otherwise been made publicly available;
(b) any record or part of a record that the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency's control, determines would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record comes under its control, including any record that would be disclosed in the public interest pursuant to subsection 20(6) of that Act; and
(c) any record or part of a record, except a record or part containing third party information, if the responsible authority, in the case of a record under the responsible authority's control, or the Minister, in the case of a record under the Agency's control, believes on reasonable grounds that its disclosure would be in the public interest because it is required in order for the public to participate effectively in the assessment.
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| (3) Sous réserve du paragraphe (4), le registre public contient tous les documents produits, recueillis ou reçus relativement à l'évaluation environnementale d'un projet, notamment _:
a) tout rapport relatif à l'évaluation environnementale du projet;
b) toute observation du public à l'égard de l'évaluation;
c) tous les documents que l'autorité responsable a préparés pour l'application de l'article 38;
d) tous les documents produits par l'application d'un programme de suivi;
e) le mandat du médiateur ou d'une commission;
f) tous les documents exigeant l'application de mesures d'atténuation.
(4) Le registre public permet l'accès aux documents visés au paragraphe (3) si ceux-ci appartiennent à l'une des catégories suivantes_:
a) documents qui sont mis à la disposition du public dans le registre conformément à la présente loi ainsi que tout autre document qui a déjà été rendu public;
b) tout ou partie d'un document qui, de l'avis de l'autorité responsable, dans le cas d'un document qu'elle contrôle, ou de l'avis du ministre dans le cas d'un document que l'Agence contrôle, serait communiqué conformément à la Loi sur l'accès à l'information si une demande en ce sens était faite aux termes de celle-ci au moment où l'Agence prend le contrôle du document, y compris tout document qui serait communiqué dans l'intérêt public aux termes du paragraphe 20(6) de cette loi;
c) tout ou partie d'un document, à l'exception d'un document contenant des renseignements relatifs à un tiers, si l'autorité responsable, dans le cas d'un document qu'elle contrôle ou le ministre, dans le cas d'un document que l'Agence contrôle, a des motifs raisonnables de croire qu'il serait d'intérêt public de le communiquer parce qu'il est nécessaire à une participation efficace du public à l'évaluation environnementale.
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[36] The public registry was physically located in Ottawa but was accessible through a toll free number as well as by fax and e-mail. Although most documents were filed as required, some were either not filed or were not filed in a timely manner. In particular, the letter of October 9, 1998, by which Ontario Hydro confirmed the results of the dry container design review, did not appear in the Registry during the comment period. The AECB memo which detailed the August 27, 1998 meeting between AECB and Ontario Hydro did not appear in the Registry until some time after November 12, 1998. The GE Canada report and its associated reports, including the sub-consultant"s report on revisions required to the environmental assessment as a result of deviations from the Reference Design were not filed in the Registry. The effect of these failures was to deprive those who were concerned about the project, the opportunity to raise the sub-consultant"s conclusions in their representations to the Minister. |
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[37] Representations were made by the applicants and by other citizens" groups, including the Chippewas of Nawash First Nation. The applicant"s representations covered a number of topics but did not particularly address the issue of the Reference Design. In contrast, the submissions of the Chippewas of Nawash First Nation specifically addressed the "change" in Reference Design. They made specific reference to the design change comments in the July 1998 Addendum and criticized Ontario Hydro"s change in position. |
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[38] In December 1998, AECB, as the responsible authority wrote to a number of government departments advising them of the results of the dry storage container design review and indicating that AECB "in consultation with the Canadian Environmental Assessment Agency and the proponent, has determined that a further public consultation was warranted." According to AECB, the intent was to provide the public with information on the "design changes and to address the concerns expressed during the initial public consultation period."10 |
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[39] On January 25, 1999, Ontario Hydro (Nash) wrote to AECB (Howard) requesting that the AECB formally request the Canadian Environmental Assessment Agency to "proceed with the completion of the recommendation process for Ontario Hydro"s Bruce Used Fuel Dry Storage Project, leading to a decision by the Environment Minister as soon as possible". The letter went on to note that the in-service date of the project was essential to the continued operation of the Bruce Nuclear units. "Further review through the CEAA process would put the in-service date at risk"11. Ontario Hydro went on to suggest that public comments could be addressed in parallel with the completion of the CEAA process. |
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[40] On March 31, 1999, the Canadian Environmental Assessment Agency, over the signature of Sid Gershberg, forwarded a recommendation to the Minister of the Environment that she conclude that the Bruce Used Fuel Dry Storage Project is not likely to cause adverse environmental effects and that the matter should be referred back to AECB for action subject to certain follow-up and mitigation measures.12 |
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[41] On April 14, 1999, the Minister wrote to Dr. Agnes Bishop, the President of AECB to advise her that she had concluded that the project as described was not likely to cause significant adverse environmental effects. The project was referred back to the AECB for action under subsection 37(1) of the Act. The public was advised of the decision in a news release which is dated May 14, 1999.13 |
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[42] The authority pursuant to which the matter was referred to the Minister, and pursuant to which she in turn referred it back to AECB is section 23 of the Act. |
| 23. The Minister shall take one of the following courses of action in respect of a project after taking into consideration the comprehensive study report and any comments filed pursuant to subsection 22(2):
(a) subject to subparagraph (b)(iii), where, taking into account the implementation of any appropriate mitigation measures,
(i) the project is not likely to cause significant adverse environmental effects, or
(ii) the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the Minister shall refer the project back to the responsible authority for action to be taken under section 37; or
(b) where,
(i) it is uncertain whether the project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects,
(ii) the project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects and subparagraph (a)(ii) does not apply, or
(iii) public concerns warrant a reference to a mediator or a review panel,
the Minister shall refer the project to a mediator or a review panel in accordance with section 29.
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23. Après avoir pris en compte le rapport d'étude approfondie et les observations qui ont été présentées en vertu du paragraphe 22(2), le ministre_:
a) renvoie le projet à l'autorité responsable pour une décision aux termes de l'article 37, si sous réserve du sous-alinéa b)(iii) et compte tenu de l'application des mesures d'atténuation indiquées, la réalisation du projet, selon le cas_:
(i) n'est pas susceptible d'entraîner des effets environnementaux négatifs importants,
(ii) est susceptible d'entraîner des effets environnementaux négatifs importants qui ne peuvent être justifiés dans les circonstances;
b) fait procéder à une médiation ou à un examen par une commission conformément à l'article 29 dans chacun des cas suivants_:
(i) il n'est pas clair, compte tenu de l'application des mesures d'atténuation indiquées, que le projet soit susceptible d'entraîner des effets environnementaux négatifs importants,
(ii) que la réalisation du projet, compte tenu de l'application des mesures d'atténuation indiquées, est susceptible d'entraîner des effets environnementaux négatifs importants et que le sous-alinéa a)(ii) ne s'applique pas,
(iii) les préoccupations du public le justifient.
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[43] The actions which are available under section 37 are the following: |
| 37. (1) Subject to subsection (1.1), the responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the report submitted by a mediator or a review panel or, in the case of a project referred back to the responsible authority pursuant to paragraph 23(a), the comprehensive study report:
(a) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate,
(i) the project is not likely to cause significant adverse environmental effects, or
(ii) the project is likely to cause significant adverse environmental effects that can be justified in the circumstances,
the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out in whole or in part and shall ensure that those mitigation measures are implemented; or
(b) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the responsible authority shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project to be carried out in whole or in part.
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| 37. (1) Sous réserve du paragraphe (1.1), l'autorité responsable, après avoir pris en compte le rapport du médiateur ou de la commission ou si le ministre, à la suite du rapport d'étude approfondie, lui demande de prendre une décision aux termes de l'alinéa 23a), prend l'une des décisions suivantes :_
a) si, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, la réalisation du projet n'est pas susceptible d'entraîner des effets environnementaux négatifs importants ou est susceptible d'en entraîner qui sont justifiables dans les circonstances, exercer ses attributions afin de permettre la mise en oeuvre totale ou partielle du projet et veiller à l'application de ces mesures d'atténuation;
b) si, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, la réalisation du projet est susceptible d'entraîner des effets environnementaux qui ne sont pas justifiables dans les circonstances, ne pas exercer les attributions qui lui sont conférées sous le régime d'une loi fédérale et qui pourraient permettre la mise en oeuvre du projet en tout ou en partie.
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The standard of review and the choice of methodology |
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[44] The Notice of Application filed by the applicants sets out the subject matter of the application: |
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This is an application for judicial review in respect of: |
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1. the course of action taken by the Minister of the Environment under s. 23 of the Canadian Environmental Assessment Act (CEAA) for the comprehensive study of the proposed Bruce Used Fuel Dry Storage Facility project (the "project"), communicated orally to the Applicant on April 23, 1999; |
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2. the course of action, if any, taken by the Atomic Energy Control Board ("Board") under s. 37 of the CEAA for the comprehensive study of the proposed project; |
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3. the course of action, if any, taken by the Minister of Fisheries and Oceans under s. 37 of the CEAA for the comprehensive study of the proposed project; |
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4. upon the request of counsel, such further and other legal actions or decisions so integrally related to this application that, in the interests of justice, this Honourable Court finds them to be part of this application. |
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[45] Section 18.1 of the Federal Court Act , R.S.C. F-7 prescribes that an application for judicial review "in respect of a decision or order of a federal board, commission or other tribunal" shall be made within 30 days of the order. It is implicit that the judicial review is to be of a single decision or order. The implied limitation is made explicit by Rule 302 of the Federal Court Rules ,1998 which limits judicial review to a single order in respect of which relief is sought. At the conclusion of argument, counsel for the applicant advised that the order in respect of which relief was sought was the decision of the Minister of the Environment dated April 14, 1998, referring the project back to the AECB for action under section 37 of the Act. |
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[46] The Notice of Application contains 58 paragraphs under the heading "This application is based upon the following grounds". In order to deal with these grounds, something must be said about the standard of review. A useful starting point is the decision of Mr. Justice Strayer in Vancouver Island Peace Society v. Canada [1992] 3 F.C. 42, a case which was decided under the legislation which preceded the CEAA. Objection was taken to two orders in council which permitted the entry of nuclear powered vessels into Canadian ports. It was argued that such orders required compliance with the Environmental Assessment and Review Process Guidelines Order (EARPGO). Judicial review proceedings were commenced but an application was made to convert the judicial review into an action on the basis of the difficult facts and the multiplicity of expert affidavits. In disposing of this motion, Mr. Justice Strayer said the following: |
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In determining whether an official or agency has acted in accordance with the law in reaching the decision in question, the Court can consider whether the official or agency has correctly interpreted the law and whether the decision has been taken on the basis of facts and reasons relevant to the purpose for which the authority was granted to make such a decision. But within that permissible range, the original decision-maker has a right to make a decision which the Court cannot reverse even if it perchance does not agree with such decision... |
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It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which one should be respected. Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under s. 18 of the Federal Court Act." |
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[47] It is not the function of this Court to identify and correct poor science. It may be that the applicant"s consultants do not agree with the scientific judgments of the respondents, but unless the respondents can be shown to be acting on no evidence, the quality of the evidence is not a matter with which this Court can interfere. |
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[48] The second point which arises from Vancouver Island Peace Society is that the decision-maker is entitled to make qualitative judgments which are not to be disturbed unless they are made in bad faith or on the basis of irrelevant considerations: |
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...an initiating department must make an informed prediction of the possibilities and likelihoods of adverse effects and some calculation as to whether those effects may be "significant". Such matters are not only incapable of precise proof but they implicitly involve value judgments as to what is "significant" in relation to both private and public interests....I agree with MacKay J. that the Court is entitled on judicial review to see if the Minister acted in good faith and took into account relevant considerations. Unless the Court is satisfied that the decision was made on completely irrelevant factors it cannot quash such a decision. It is not for the Court to substitute its own assessment of the weight and nature of public concern and determine that a public review is or is not "desirable"." |
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[49] This theme is further developed by the Federal Court of Appeal in Re Alberta Wilderness Association and Express Pipelines Ltd. et al. (1996) 137 D.L.R. (4th) 177. Mr. Justice Hugessen, speaking for the Court, expressed their views as follows: |
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In the first place, and in a general way, the great majority of the applicants' submissions failed to raise any questions of law or jurisdiction but were simply an attack on the quality of the evidence before the panel and the correctness of the conclusions that the majority drew from that evidence. No information about the probable future effects of a project can ever be complete or exclude all possible future outcomes. The appreciation of the adequacy of such evidence is a matter properly left to the judgment of the panel which may be expected to have, as this one in fact did, a high degree of expertise in environmental matters. In addition, the principal criterion set by the statute is the "significance" of the environmental effects of the project: that is not a fixed or wholly objective standard and contains a large measure of opinion and judgment. Reasonable people can and do disagree about the adequacy and completeness of evidence which forecasts future results and about the significance of such results without thereby raising questions of law. |
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[50] To the limitations which arise from the nature of judicial review must be added the limitations imposed by the Act itself. The scope of the project is a matter which must be determined by the responsible authority. Section 15 of the Act provides that the scope of the project "in relation to which an environmental assessment is to be conducted" is to be determined by the responsible authority. |
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[51] The factors to be considered in a comprehensive study are set out at subsections 16(1) and (2) of the Act. Subsection 16(3) empowers the responsible authority to define how extensively those factors will be considered: |
| (3) The scope of the factors to be taken into consideration pursuant to paragraphs (1)(a), (b) and (d) and (2)(b), (c) and (d) shall be determined
(a) by the responsible authority; or
(b) where a project is referred to a mediator or a review panel, by the Minister, after consulting the responsible authority, when fixing the terms of reference of the mediation or review panel.
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(3) L'évaluation de la portée des éléments visés aux alinéas (1)a), b) et d) et (2)b), c) et d) incombe_:
a) à l'autorité responsable;
b) au ministre, après consultation de l'autorité responsable, lors de la détermination du mandat du médiateur ou de la commission d'examen.
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[52] The effect of the section is evident, as was pointed out by Nadon J. in Manitoba's Future Forest Alliance v. Canada (Minister of the Environment) (1999) 30 C.E.L.R. (N.S.) 1: |
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Subsection 16(3) provides in clear terms that the determination of the scope of the factors under subsection 16(1) is to be determined by the responsible authority. In the present instance, the CCG made a determination regarding the scope of the factors and, in my view, that determination was open to the CCG. Hence, I see no basis for intervention in regard to that determination. |
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[53] It is obvious from the above that the scope of judicial review is narrow. The extent to which certain factors are considered, and the weight given to various factors in the overall assessment of environmental effects, are matters for those who have the expertise to make such judgments, and not for the Court. This flows from the nature of judicial review itself as well as the specific allocations of responsibility found in the Act. In my view, the choice of a methodology to be used in conducting the assessment is also a matter within the competence of those undertaking the study. If the methodology adopted results in a consideration of the statutory factors, it is not for the Court to say that some other methodology would result in a more thorough consideration, or that quantitative assessment is required where those undertaking the assessment have used qualitative assessments. |
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[54] It must also be kept in mind that the materials prepared by a proponent are forwarded to the responsible authority and then to Canadian Environmental Assessment Agency, both of which must be taken to have their own expertise in the assessment of environmental effects. After all, it is the Agency which makes a recommendation to the Minister. If there is to be a challenge to the scientific rigour or the comprehensiveness of the assessment, it should come from that quarter. In addition, the assessment is required to be circulated to other government departments who have expertise in their own area of operation for their comments. If poor science or poor logic have crept into the report, they have the opportunity to identify it. All of this is to say that judicial review of a ministerial decision is not a forum in which to debate environmental science. There are others, better equipped for that task than the Court, who have specific responsibilities in that regard under the legislation. The Court"s function is to determine if the assessment was done according to law. |
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[55] This leads to conclusion that to the extent that the challenge to the Minister"s decision arises from the use of a reference design which does not correspond to the final design choice, the challenge must fail. As long as the statutory factors are considered, it is not a ground of review that they were considered by comparison to a reference design rather than by themselves. To the extent that the applicant"s case is that the process is flawed because the design studied is not the design approved, which is in effect an attack upon the use of a reference design for purposes of conducting an assessment, it must fail. The choice of methodology is a matter within the competence of the responsible authority and as long as it results in consideration of the factors which the legislation requires to be considered, the Court cannot intervene. |
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[56] The argument that consideration of the Reference Design is consideration of an irrelevant factor, since the Reference Design is not the design which will be implemented, must also fail. Consideration of certain factors by qualitative comparison is consideration nonetheless. This does not mean that the factors were appropriate or that all necessary factors were considered. It simply means that the comprehensive study and Comprehensive Study Report cannot be set aside on methodological grounds. |
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The effect of the failure to file certain materials in the public registry |
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[57] The maintenance of a public registry is called for by section 55 of the Act. It stipulates that various records are to be kept in the registry if they fall within certain categories. The categories include: |
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a) records that have otherwise been made public. |
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b) records in the control of the responsible authority or the Agency which would have been made public had a request been made for them pursuant to the Access to Information Act. |
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c) records in the control of the responsible authority or the Agency which the Minister believes should be disclosed in order to permit the public to participate effectively in the assessment. |
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[58] Objection is taken to the absence from the registry at the material time of two documents, the October 9, 1998 letter, confirming the decision as to the choice of storage system, and the report of GE Canada"s consultants indicating their views of the environmental assessment implications of the selection of the storage system of choice. In both cases, it is said that the absence of the material from the registry impaired the ability of the public, including the IDRA, to comment meaningfully on the assessment. |
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[59] With respect to the absence of the letter of October 9, 1998 from the registry, it is noteworthy that other interested parties, specifically the Chippewas of Nawash First Nation, commented on the storage system selected by Ontario Hydro in spite of the absence of formal notification that a final choice had been made. This suggests that a clear enough indication was given as to the choice which Ontario Hydro proposed to make that meaningful public comment was possible. While it would have been preferable to have the letter filed, as indeed the legislation required, the failure to do so is not, in my view, grounds for reopening the public comment process. The opportunity for comment existed since the alternate systems under consideration were clearly identified, a reference design had been chosen for assessment purposes, and a clear statement made that the system which was ultimately selected was the likely choice. In those circumstances, it was possible to comment meaningfully about all the alternatives under consideration, the Reference Design or the system identified as being the likely choice. It would also be possible to comment on the appropriateness of submitting the proposal to the AECB before a final design choice had been made, if the IDRA considered that the choice of design was still an open question. In the circumstances, it is my view that the statutory purpose of the registry was satisfied, notwithstanding the absence of the letter of October 9, 1998. |
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[60] As was said in Caddy Lake Cottagers Assn. v. Florence-Nora Access Road Inc. (1998) 27 C.E.L.R. (N.S.) 258 (Man. C.A.), [1998] 8 W.W.R. 514: |
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It does not follow that because a statute has imposed a duty on an official by the use of the word "shall" that necessarily a failure to comply with that duty results in a nullity. Pierre-André Côté's The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 203, explains that the use of the word "shall," by itself, is "insufficient to suggest the legislator intended nullity as a consequence of non-respect." On this question, "it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at" (Montreal Street Railway Company v. Normandin , [1917] A.C. 170 at 174 (P.C.) |
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[61] A different situation exists with respect to the consultants" report indicating that significant revisions would have to be made to the environmental assessment if wet loading of Pickering style dry storage containers was selected as the system of choice. The documents which must be filed in the registry are public documents or documents within the control of the responsible authority or the Agency. In this case, Ontario Hydro was the proponent and therefore, was neither the responsible authority or the Agency. The report was within Ontario Hydro"s control but it has not been shown that there was any obligation on the part of Ontario Hydro to file the report with either the responsible authority or the Agency. If the report did not come into the hands or control of either of these two bodies, they could not be required to file it. |
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[62] I have not been directed, nor have I been able to find, any authority which would suggest otherwise. The effect of this finding is that a proponent who commissions a study which comes to a conclusion inimical to the interests of the proponent is under no obligation to file that study with the responsible authority, unless otherwise required to do so. Subsection 55(3) provides that the registry shall contain "any report relating to the assessment" which may be broad enough to include the consultants" report in question here, but unless a document referred to in subsection 55(3) is also referred to in subsection 55(4), it need not be filed. The report in question does not fall within any part of subsection 55(4). |
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[63] In this case, the consultants" report which is in issue was entirely internal to Ontario Hydro and, in the absence of proof that it was made public at the material time, was not required to be filed in the public registry. |
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Were the statutory criteria considered |
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[64] This is sufficient to dispose of the submissions which were made on behalf of the applicant at the time of oral argument. There remains the numerous grounds of review which are advanced in the Notice of Application. As mentioned earlier, there are 58 paragraphs under the portion of the Notice of Application in which the grounds of review are set out. In fact, many of the paragraphs are descriptive or explanatory so that the number of discrete grounds is considerably less that 57. A review of the grounds shows that there are approximately 12 discrete grounds of review alleged, of which 6 relate to compliance with section 16 of the Act. In the IDRA"s written submissions, the number of issues is reduced to 8, 6 of which are directly tied to compliance with section 16 of the Act. It is therefore appropriate to consider the issue of section 16 of the Act first, given its prominence in the matter. |
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[65] The Comprehensive Study Report is required to address the factors set out in subsections 16(1) and 16(2) of the Act. The first factors to be considered are environmental effects, consequences of malfunction and cumulative environmental effects: |
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(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: |
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(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; |
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[66] Section 4 of the EA is devoted to environmental effects. It addresses a number of issues which can be seen from a review of the Table of Contents for Section 4 of the EA: |
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4.0 ASSESSMENT OF POTENTIAL ENVIRONMENTAL EFFECTS 83 |
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4.1 Atmospheric Environment 83 |
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4.2 Geophysical Environment 89 |
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4.2.2 Ground Stratigraphy and Groundwater 89 |
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4.3 Aquatic Environment 90 |
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4.4.1 Land Use Effects 91 |
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4.4.2 Heritage Resources 92 |
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4.4.3 Landscape and Visual 92 |
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4.5 Terrestrial Biology 92 |
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4.5.1 Amphibian and Reptile 93 |
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4.5.4 Terrestrial Habitat 94 |
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4.5.5 Habitat Relationships 94 |
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4.6 Radiological Environmental and Safety Assessment 98 |
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4.6.1 Normal Operation 98 |
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4.6.1.1 Radioactive Material Releases 98 |
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4.6.1.1.1 Airborne Emissions 98 |
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4.6.1.1.2 Liquid Discharges 99 |
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4.6.1.2 Radiation Field 99 |
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4.6.1.2.1 Direct Radiation Calculation Approach 99 |
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4.6.1.2.2 Container Dose Rates 99 |
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4.6.1.2.3 Facility Dose Rates 99 |
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4.6.1.3 Radiation Effects on General Public 100 |
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4.6.1.4 Radiation Effects on Aboriginal People 101 |
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4.6.1.5 Ecological (non-Human) Effects 103 |
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4.6.2 Abnormal/Accident Scenarios and Other Hazards 104 |
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4.6.2.1 Assessment Methodology 104 |
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4.6.2.1.1 Free Radionuclide Inventory 104 |
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4.6.2.1.2 Atmospheric Dispersion 105 |
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4.6.2.1.3 Dose Calculation Methodology 105 |
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4.6.2.2 Accidents During Loading 106 |
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4.6.2.2.1 Drop of a Tray in the Fuel Bay 106 |
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4.6.2.2.2 Drop of a Tray in the Container 106 |
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4.6.2.2.3 Container Drop after Fuel Loading 107 |
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4.6.2.2.4 Container Drop during On-Site Transfer 107 |
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4.6.2.3 Accidents During Storage 107 |
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4.6.2.3.1 Weld Containment failure 107 |
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4.6.2.3.2 Criticality 108 |
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4.6.2.4 Natural Hazards 108 |
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4.6.2.4.1 Earthquakes 108 |
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4.6.2.4.2 Tornadoes and Tornado-Generated Missiles 108 |
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4.6.2.4.3 Thunderstorms 109 |
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4.6.2.5 Other External Hazards 109 |
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4.6.2.5.1 Fires and Explosions 109 |
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4.6.2.5.2 Aircraft Crash 110 |
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4.6.3 Summary of Public Dose Calculations 110 |
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4.6.4 Contingency Plans 111 |
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4.6.4.1 Container Damaged during Handling 111 |
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4.6.4.2 Transporter Failure 112 |
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4.6.4.3 Dropping of a Fuel Tray during Loading 112 |
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4.6.4.4 Failure of the Active Ventilation System 112 |
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4.6.4.5 Transporter Dropping a Loaded BDSC in ASB 112 |
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4.6.4.6 Storage Container Tipping Over After Preparation For Storage 112 |
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4.7 Social and Economic Assessment 113 |
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4.7.1.1 Sources of Effect and Social Context 113 |
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4.7.1.2 Social Effects 114 |
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4.7.2 Economic and Transportation Effects 116 |
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4.7.2.1 Economic Effects 116 |
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4.7.2.2 Transportation Effects 119 |
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4.7.3 Aboriginal Land and Resource Use Effects 120 |
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4.7.3.1 Aboriginal Land Use 120 |
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4.7.3.2 Aboriginal Heritage 121 |
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4.7.3.3 Other Aboriginal Issues 121 |
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4.8 Human Health Effect 121 |
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4.8.1 Occupational Health Effects 121 |
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4.8.2 Public Health Effects 122 |
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4.8.3 Health and Well-Being from Social Perspective 123 |
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4.9 Environmental Effects of Alternatives_ 124 |
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4.9.2 Expansion of Existing Fuel Bays or Construction of New Bays 124 |
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4.9.3 Different Dry Storage Technologies 125 |
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4.10 Cumulative Effects 126 |
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4.10.1 Methodological Approach 126 |
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4.10.2 Other Developments at BNPD 127 |
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4.10.3 Increased Risk of Exposure to Radiation 128 |
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4.10.4 Socio-Economic Dimension 128 |
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4.11 Renewable Resource Effects 129 |
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4.11.1 Capacity of Renewable Resources Likely to be Significantly Affected |
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with Respect to Present and Future Needs 129 |
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4.11.2 Relationship between Cumulative Environmental Effects |
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and Sustainable Use of Renewable Resources 130 |
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One can see that the range of issues canvassed is extensive. Whether every conceivable effect has been canvassed, or every possible accident scenario has been identified, is not a matter for this Court. The responsibility for fixing the scope of the assessment is specifically left to the responsible authority. It is clear that the issue of environmental effects, malfunctions and cumulative effects have been considered in the EA in relation to the Reference Design. The variations which might be introduced by the selection of another design were considered in section 4.9.2 of the EA and section 7. Section 7 is a sustainable energy development impact assessment of the four storage options. Section 4.9.2 is a discussion of the impact of the different designs under consideration. It concludes with the following: |
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The possibility of changing to a wet loading system (including tray-to-module conversion) at the generating stations and co-location of common services at the dry storage facility are not expected to give rise to significantly different off-site environmental effects, compared to those associated with the current reference design. This general assessment is supported by the environmental and safety analysis documented in the Safety Report submitted to the AECB for approval of the first stage of the Pickering Used Fuel Dry Storage Facility (Ontario Hydro, 1994). |
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[68] This passage demonstrates that the factors set out in subsection 16(1) were considered. |
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[69] The July 1998 update to the EA carried this forward. It contains a section entitled System Design Study Update which indicates that the system design study is being done for Ontario Hydro by GE Canada. It goes on to report that the preferred design is no longer the original Reference Design but one of the alternatives which was being assessed relative to the Reference Design. |
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The progression of the study, from outset to present status, is summarized in Table 1. In summary, the evaluation and comparison process to date indicates that wet transfer technology has several advantages over the dry transfer technology used as part of the "reference design"for the EA and preliminary Safety Report, including proven technology and processes, standardization of equipment, and maintainability. |
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In addition, the third bay loading option appears to have a safety advantage over the secondary bay option, although these two options are comparable in other ways. Use of the 384-bundle Pickering Dry Storage Container (DSC) is favoured over the 600-bundle Bruce DSC design. This DSC design has been proven through operational experience at the Pickering UFDSF. In general, since the Nuclear Asset Optimization Plan was announced in August 1997, Ontario Hydro Nuclear has increased emphasis on standardization of designs and processes and managing any changes to designs and processes. Existing container designs will continue to be reviewed on an ongoing basis, and improvements considered, taking operational experience and performance monitoring into account. |
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In parallel with the system design study being carried out by GE Canada, Ontario Hydro is currently reviewing the incremental benefits and costs of emplacing the loaded DSCs inside a storage building (similar to that at the existing Pickering UFDSF), as opposed to the outdoor storage arrangement assumed in the EA and preliminary Safety Report. |
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Selection of a preferred system design concept, including decision on whether to incorporate the storage building option, is expected by September 1998. |
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Comparison to Designs Considered in the EA |
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The short-list of options now being evaluated, from which the preferred system design concept will be selected, is within the range of options considered in the December 1997 EA (EA sections 2.2.4, 4.9.2 and 4.9.3), except for the possible inclusion of a storage building. The EA did not consider such a building explicitly. While a detailed benefit/cost analysis of this further option in the BUFDSF context is not yet available, Ontario Hydro has applicable experience from operation of the Pickering UFDSF, and there appear to be no negative environmental implications of incorporating a storage building in the overall system design. |
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The reference to sections 4.9.2 and 4.9.3 of the EA are references to the assessment of environmental effects of the alternate designs, which include the design of choice are within the parameters established by the Reference Design. It therefore appears that the environmental effects of the proposed design and the consequences of malfunction have been examined. |
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[71] It is worth noting again that the function of the Court in judicial review is not to act as an "academy of science"or a "legislative upper chamber". In dealing with any of the statutory criteria, the range of factual possibilities is practically unlimited. No matter how many scenarios are considered, it is possible to conceive of one which has not been. The nature of science is such that reasonable people can disagree about relevance and significance. In disposing of these issues, the Court"s function is not to assure comprehensiveness but to assess, in a formal rather than substantive sense, whether there has been some consideration of those factors which the Act requires the comprehensive study to address. If there has been some consideration, it is irrelevant that there could have been further and better consideration. |
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[72] Subsection 16(1) also requires consideration of cumulative environmental effects. The Table of Contents shows that section 4.10 is devoted to an examination of cumulative effects. It is rather cursory in its examination of the issue. However, the July 1998 Addendum contains a large section on Cumulative Effects prepared for Ontario Hydro by another firm of consultants. The Table of Contents of that report are reproduced below: |
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1.1 Environmental and Cumulative Effects Assessments 3 |
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2. Methodology 2.1 Objectives 3 |
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3. Overview the Existing Environment 6 |
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3.1 Atmospheric Environment 8 |
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3.2 Geophysical Environment 9 |
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3.3 Aquatic Environment 10 |
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3.5 Terrestrial Biology 12 |
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3.6 Radiation Environment 13 |
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3.7 Social and Economic Conditions 13 |
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3.8 Aboriginal Communities and Heritage Resources 14 |
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4. Valued Ecosystem/Social Components 15 |
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5. Identification of Relevant Actions! Physical Works 17 |
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7. Temporal Boundaries 20 |
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8. Relevant Actions and Physical Works 20 |
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8.1 Existing and Ongoing Actions/Physical Works 20 |
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8.1.1 Bruce A (In Lay-Up State) 20 |
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8.1.2 Bruce B Operations 22 |
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8.1.3 Radioactive Waste Operations Site 2 (RWOS-2) 23 |
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8.1.4 Facilities in Safe Storage 25 |
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8.1.5 Ancillary BNPD Facility Operations 26 |
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8.2.1 Used Fuel Dry Storage Facility 27 |
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8.3 Planned Actions/Physical Works 28 |
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8.3.2 Additional Storage at RWOS-2 29 |
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8.3.3 Waste Removal from RWOS-l 29 |
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8.3.4 Heavy Water Plant Decommissioning 30 |
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8.3.5 Auxiliary Steam Plant Replacement 31 |
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8.4 Reasonably Foreseeable Actions / Physical Works 31 |
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8.4.2 Bruce A and Bruce B Shutdown and "Safe Storage' 32 |
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8.5 Hypothetical Actions (not included in CEA) 32 |
9. Potential Effects of Actions/Physical Works 32
10. Cumulative Effects Assessment 33
| 11. Summary of Short, Medium and Long Term Cumulative Effects 46 |
11.1 Short Term (l998-2002) 46
11.2 Medium Term (2003-2017) 48
11.3 Long Term (2017 and beyond) 49
13. References
List of Figures
| Figure 1. Bruce Nuclear Power Development Location 2 |
Figure 2. Scope of the Cumulative Effects Assessment 4
Figure 3. BNPD Site and Environs 7
Figure 4. Identified Actions/Physical Works 18
Figure 5. Cumulative Effects Assessment Timeline 21
List of Tables
| Table 1. Approach to Cumulative Effects Assessment 5 |
| Table 2. Identified Valued Ecosystem l Social Components 15 |
| Table 3. Geographic Study Areas 19 |
| Table 4. Facilities at BNPD Radioactive Waste Operations Site 2 24 |
| Table 5. Descriptions of Potential Effects 33 |
| Table 6. Potential Cumulative Air Quality Effects 34 |
| Table 7. Potential Cumulative Land Resources Effects 35 |
| Table 8. Potential Cumulative Effects on Terrestrial Biology 36 |
| Table 9. Potential Cumulative Effects on Surface Water/Aquatic Biology 38 |
| Table 10. Potential Cumulative Geophysical Effects 40 |
| Table 11. Potential Cumulative Radiological Effects 42 |
| Table 12. Potential Cumulative Socio-Economic Effects 43 |
| Table 13. Potential Cumulative Effects on Aboriginal Issues 44 |
[73]
It can be seen that cumulative effects have received extensive consideration. Once again, whether a particular topic has received adequate consideration or whether some topics have been omitted is not a matter for this Court to assess.
[74] The next issue which paragraph 16(1)(b) requires the assessment to consider is the significance of the environmental effects. That topic is covered at section 5 of the EA, the conclusions of which are reproduced below:
| This assessment has demonstrated that the project is not likely to cause any significant adverse effects to the local or regional environment. Mitigation measures are proposed to reduce all effects to minimal levels. This section provides information on how the significance of potential adverse effects was determined to arrive at this conclusion. |
| An adverse effect is normally deemed to be significant where a regulatory standard, guideline or objective is exceeded. All appropriate standards, guidelines and objectives have been considered by this assessment and none will be exceeded. However, this is not the only measure of significance considered. For many of the environmental factors considered, no regulatory thresholds exist (e.g. biological, socio-economic and geophysical effects). For these factors, significance is assessed based on the environmental risk and/or professional judgement. In other words, the predicted consequences and likelihood of effects were assessed in terms of magnitude, geographic extent, duration, frequency, irreversibility, and ecological context. Table 5.1-1 summarizes the predicted potential changes to the various environment components due to the project and whether these changes would cause any significant residual adverse environmental effects. |
| It is the conclusion of this assessment that none of the predicted effects described in Section 4 of this report could be characterized as significant adverse environmental effects. Construction effects will be short in duration and limited in geographic extent, mostly within the BNPD boundary. All the predicted residual environmental effects will have low magnitude and minor ecological importance. No rare, threatened, or endangered species will be affected. Site restoration is a viable option for the future and hence, effects cannot be characterized as irreversible. |
[75] The July 1997Addendum restates Ontario Hydro"s conclusion as to the significance of the environmental effects. In the Introduction, Ontario Hydro"s conclusion is said to be:
| No significant environmental effects are predicted for the construction and operation of the proposed dry storage facility. The projected (Bruce Nuclear Power Development) site radiation level will continue to be well below AECB"S regulatory limits. |
[76] The report addresses the issue of significance of environmental effects.
[77]
The Act requires the proponent to address comments from members of the public. This is tied to the issue of adequate disclosure since the public can only comment to the extent that it has information about the project. It is clear from a perusal of the record that the comments of the public were addressed, though not necessarily to the satisfaction of the individuals or groups making the representations.
[78] The Act also requires consideration of alternatives which are "technically and economically feasible and that would mitigate any significant adverse environmental effects of the project". Given the conclusion as to significant adverse effects, no particular attention was devoted to this topic over and above the general topic of mitigation measures. An exhaustive listing of mitigation measures in relation to various environments and degrees of environmental effects is found in the 13 tables which are part of section 8 of the Addendum.
[79] Insofar as subparagraph16(1)(e) requires the proponent to respond to the concerns of the responsible authority or the Minister, one notes that the CEAA expressed some of its concerns to Ontario Hydro. These concerns were addressed in the Addendum, as can be seen from its opening page:
| The information in this Addendum is intended to update or supplement Ontario Hydro' s environmental assessment (EA) report submitted to the Atomic Energy Control Board (AECB) in December 1997 in support of Ontario Hydro' s application for approval to construct the proposed Bruce Used Fuel Dry Storage Facility. The additional information is intended to update the AECB and other stakeholders regarding project studies and consultation processes initiated or continued since the EA submission, as well as respond to comments on the BA received during the AECB/inter-governmental review process to date. The rationale for the additional information in this Addendum is summarized in the following table: |
Addendum Section Rationale for Additional Information
| 1.Project & EA scope clarification
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Response to comment from CEAA staff.
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| 2.Project system design update
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OH initiative: Keeping AECB and other EA reviewers informed about implications of possible project design changes (further to EA sections 2.2.4 and 4.9.2 - 4.9.3).
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| 3.Supplementary report on BNPD cumulative environmental effects assessment
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Response to comments from CEAA and NRCan staff, as well as expressions of concern by some local stakeholders.
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| 4.Supplementary information on geophysical environment
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Response to comments from AECB and NRCan staff.
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| 5.Conceptual Decommissioning Plan
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For completeness in light of comment from CEAA staff re: project scope.
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| 6.External relations and outreach update
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OH initiative: Keeping AECB and other EA reviewers informed about ongoing project external outreach activities (further to EA section 6.3).
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| 7. Summary of responses to all AECB I Government comments received to date
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OH initiative: Convenience of EA reviewers who may not have easy access to the Public Registry.
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| The additional studies and information submitted herewith do not alter the conclusion of the EA report submitted in December 1997: No significant environmental effects are predicted for the construction and operation of the proposed dry storage facility .... The projected (Bruce Nuclear Power Development) site radiation levels will continue to be well below AECB"s regulatory limits. While no significant effects are expected, Ontario Hydro will continue to offer to work with any public stakeholders who may nevertheless be concerned. |
[80] Subsection 16(2) requires the Comprehensive Study Report to address certain factors, including the purpose of the project, the availability of alternate means, follow-up requirements and the capacity of renewable resources to meet future needs. The environmental effects of alternatives are considered at section 4.9 of the EA. Renewable resources effects are considered at section 4.11 of the EA.
[81] In its submissions, IDRA concedes that it does not complain that the EA does not consider environmental implications of a feasible alternative. It does complain that the alternative chosen is, in its view, the more environmentally damaging of the alternatives considered. This is not a ground of judicial review since it amounts to a choice among competing alternatives. That is a matter for the Agency and the Minister to deal with if they think the choice among alternatives is inappropriate. The test is not whether the lowest risk alternative has been selected but whether the alternative selected carries with it the risk of significant adverse environmental effects.
[82] In the end, I find that the requirements of section16 of the Act have been satisfied.
[83] The applicant raises a number of grounds of review which turn on compliance with section 16. For example, it is suggested that the AECB has failed in its duty pursuant to sections 17 and 21 to see that section 16 was complied with. Given my finding that it was, those grounds of review fail.
[84] The applicant also attacks the Minister"s decision to refer the project back to AECB for action on the basis that it was made on the basis of irrelevant considerations. This leads, once again, to consideration of whether section 16 has been complied with. Given my finding that it has, the Agency"s recommendation to the Minister and the Minister"s decision are grounded in the factors which the Act requires be considered. This ground also fails.
[85] Finally, the applicant argues that the Minister had a duty under subparagraph 23(b)(i) to refer the project to a mediator. The foundation for such a duty is a finding that there is doubt as to whether the project will cause significant adverse environmental effects. The Minister has made no such finding and it is not the Court"s function to substitute its opinion for the Minister"s. This ground also fails.
[86] As a result, there is no basis upon which this Court can interfere with the Minister"s decision and the application is dismissed with costs.
ORDER
Upon hearing counsel for the applicant and counsel for the respondents, it is hereby ordered that the application for judicial review is dismissed with costs to be assessed.
"J.D. Denis Pelletier"
Judge
__________________
1 As concrete is a barrier to the transmission of radiation, so acronyms are a barrier to the transmission of understanding. To the extent possible their use will be avoided in these reasons.
2 For ease of reference, the respondent, Ontario Power Generation will be referred to as Ontario Hydro since that is the name by which it was known for most of the time period in question. At the hearing, the applicant advised that it sought no relief against the Minister of Fisheries and Oceans and as a result, there will be no further reference to that Minister. The respondents, Atomic Energy Control Board and the Minister of the Environment will be referred to collectively as the Federal respondents
3 AECB (Howard) to Ontario Hydro (King) September 30, 1997, Application Record Vol. 14 p. 3816
4 Wet loading and dry loading refer to the process of transferring the fuel bundles from their present location in an underwater container to the dry storage container. If the transfer takes place underwater, it is called wet loading. If the container is brought to the surface and the transfer takes place out of the water, it is called dry loading.
5 The name is taken from the Pickering nuclear power plant operated by Ontario Hydro where spent fuel is stored in a dry storage facility.
6 EA section 2.3
7 It is not clear from the report if the consultants were referring to the December 1997 report or to the January 1997 report.
8 Application Record Vol. 18 p. 4613
9 Affidavit of Paul Bernier, Record of the respondent, Minister of the Environment et al. Vol. 3 p. 566 para 23.
10 Application Record Vol. 19 p. 5092
11 Application Record. Vol. 17 p. 4446
12 Record of the Minister of the Environment et al. Vol. 2 p. 435
13 Record of the Minister of the Environment et al. Vol 2. p. 439