Federal Court Revokes Darlington Nuclear Preparation Licence Based On 'Gaps' In Environmental Assessment

In a rare (and over 200-page) decision, the Federal Court of Canada revoked the Licence given to Ontario Power Generation (OPG) to construct new nuclear generation units at the existing Darlington nuclear facility, and ordered that the environmental assessment (EA) under the Canadian Environmental Assessment Act be returned to the appropriate panel for further consideration including addressing certain "gaps" in the analysis undertaken in the EA.

Introduction

On May 14, 2014, the Federal Court released its decision in Greenpeace Canada v. Attorney General of Canada, 2014 FC 463. The case, brought by environmental non-governmental organizations, challenged OPG's proposal to construct up to four new nuclear reactors as part of the federal Darlington New Nuclear Power Plant Project (the Project). The decision considered two judicial review applications:

A challenge to the adequacy of the federal EA of the Project under the Canadian Environmental Assessment Act, SC 1992, c 37 (CEAA 1992);1 and A challenge to the Project's Site Preparation Licence (Licence) based on the failure to comply with the requirements of CEAA 1992 and the Nuclear Safety and Control Act (NSCA). Brief Facts

In June 2006, OPG sought approval for the construction of a new nuclear power generation facility at the existing Darlington nuclear site in Clarington, Ontario. The Project, which included the construction, operation, decommissioning and abandonment of nuclear reactors and the management of the associated conventional and radioactive waste, triggered an EA under the CEAA 1992 and Law List Regulations. The Project was the first proposed nuclear new build in Canada in over a generation, the first since CEAA 1992 was enacted, and the first to potentially use enriched uranium fuel.

The EA of the Project was referred to a three-member joint review panel (the Panel), with a mandate that included: (a) performing an EA of the Project based on an Environmental Impact Statement (EIS) prepared by OPG; and (b) reviewing OPG's application for the Licence. The EA process engaged the public, the CNSC, and other government agencies and departments, including public hearings and written submissions.

Since OPG had not yet committed to a particular reactor design for the Project, the EIS examined - and the Panel considered - multiple possible reactor designs using the "plant parameter envelope" (PPE) approach,2 which involves examining reactor design and site parameters in a way that...