Vol. 152, No. 1 — January 10, 2018

Registration

SOR/2017-285 December 19, 2017

NUCLEAR LIABILITY AND COMPENSATION ACT

P.C. 2017-1682 December 15, 2017

Whereas, pursuant to subsection 7(1) of the Nuclear Liability and Compensation Act (see footnote a), the Minister of Natural Resources has consulted the Canadian Nuclear Safety Commission;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources, pursuant to subsections 7(1) and (2) of the Nuclear Liability and Compensation Act (see footnote b), makes the annexed Regulations Amending the Nuclear Liability and Compensation Regulations.

Regulations Amending the Nuclear Liability and Compensation Regulations

Amendments

1 The portion of item 1 of the schedule to the Nuclear Liability and Compensation Regulations (see footnote 1) in column 3 is replaced by the following:

Item

Column 3

Description

1

The site is located on the shore of Lake Huron in the Municipality of Kincardine, Ontario, and is more particularly described as Parts 31, 37 to 53, 56 to 63, 73, 89, 91 to 95 and 121 to 127 on Reference Plan 3R 7352, Parts 108 to 110 on Reference Plan 3R 7352, Parts 4 to 8, 11 to 13, 15, 16 and 18 to 27 on Reference Plan 3R 7351, Part 1 on Reference Plan 3R 7355, Part 10 on Reference Plan 3R 7351, Part 17 on Reference Plan 3R 7351, Parts 2 to 4 on Reference Plan 3R 7015, Parts 1 to 5, 7 to 11, 13 to 20, 27, 28, 66, 67, 71, 79, 80, 84, 87, 88, 90 and 112 to 120 on Reference Plan 3R 7352, Parts 1 and 2 on Reference Plan 3R 8208, Parts 96, 98 and 106 on Reference Plan 3R 7352 and Parts 1 to 3 on Reference Plan 3R 7019.

Title documents for the subject parcels of land are registered in the Bruce Land Registry (NO. 3) in Ontario.

2 Item 11 of the schedule to the Regulations is repealed.

Coming into Force

3 (1) Subject to subsection (2), these Regulations come into force on the day on which they are registered.

(2) If, on the day on which these Regulations are registered, the Canadian Nuclear Safety Commission has not issued a permit to the University of Alberta to abandon the SLOWPOKE 2 reactor, section 2 comes in to force on the day on which that permit is issued, which is published on the Canadian Nuclear Safety Commission’s website.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Nuclear Liability and Compensation Regulations (the Regulations) were published in Canada Gazette, Part II, on May 6, 2016, and came into force on January 1, 2017. The Regulations designate nuclear installations, operators, classes of nuclear installations, and liability limits for those classes, pursuant to subsection 7(1), and paragraphs 24(2)(b) and 78(b) of the Nuclear Liability and Compensation Act (the Act). The Regulations were required to be in place before the legislation could enter into force on January 1, 2017.

Amendments to the Regulations are required (1) to remove the “University of Alberta: SLOWPOKE 2 Reactor” site as a nuclear installation pursuant to the Act, effective on the date that it is granted a “Licence to Abandon” from the Canadian Nuclear Safety Commission (CNSC) [Canada’s nuclear regulatory agency]; and (2) to replace the description under the “Bruce Nuclear Generating Stations A and B” site designation with a corrected description.

Background

The Act provides a strong legislative framework to address civil liability and compensation resulting from nuclear damages arising from a nuclear incident. It provides a special civil liability regime for the operators of certain categories of nuclear facilities. It is intended to deal with risks of an exceptional nature for which common law rules and practice are not suitable. Therefore, the regime applies only to those categories of nuclear facilities that contain or utilize “nuclear material” and these are designated as “nuclear installations” under the legislation. Nuclear material, for the purposes of the Act, is material that is capable of a self-sustaining chain process of nuclear fission (criticality), or material that is produced as a result of that criticality. Nuclear facilities designated as nuclear installations for the purposes of the Act include nuclear power generating plants, research reactors, nuclear material processing plants, as well as facilities for managing used nuclear fuel. The Act does not apply to other nuclear facilities such as uranium mines, refineries utilizing natural uranium, and hospital nuclear laboratories, as the material produced or utilized in these facilities is incapable of criticality.

The special civil liability regime provided by the Act differs from a fault-based liability regime which most other industries are subjected to under common law, as it establishes absolute, exclusive and limited liability of the operator for civil damages. The special civil liability regime is designed to provide certainty on the treatment of legal liability for nuclear damage resulting from a nuclear incident and to provide prompt compensation with minimal litigation, since people who have suffered damage do not have to establish which party or parties were at fault. Under a fault-based regime, to which nuclear facilities not subject to the Act are subjected to, a person who suffered damage would have to prove that party or parties were at fault; defendants would have access to a number of defences including the exercise of due diligence, litigation could take years, and claimants could end up with no compensation.

Designation of Nuclear Installations and Operators or the purposes of the Act

The “Designation of Nuclear Installations and Operators,” contained in the schedule of the Regulations, prescribes which nuclear facilities are designated as “nuclear installations” and “operators” for the purposes of the Act. This ensures that the liability regime provided by the Act applies to the operators of nuclear facilities that contain or utilize nuclear material.

The Act requires that the designations be prescribed by regulation, made on the recommendation of the Minister of Natural Resources after consultation with the CNSC.

Role of the CNSC

The CNSC’s mandate is to regulate the use of nuclear energy and materials to protect health, safety, security and the environment; implement Canada’s international commitments on the peaceful use of nuclear energy; and disseminate objective scientific, technical and regulatory information to the public.

The CNSC acts in an advisory role to the Minister of Natural Resources on the development of the Regulations. However, the Minister of Natural Resources is responsible for all issues related to the financial responsibility of the operators pursuant to the Act.

University of Alberta SLOWPOKE 2 Reactor

The University of Alberta SLOWPOKE 2 Reactor site is currently designated in the schedule of the Regulations as a nuclear installation for the purposes of the Act. In December 2016, the University of Alberta submitted an application to the CNSC to amend its operating licence in order to permit decommissioning of the facility.

Bruce Nuclear Generating Stations A and B

The Bruce Nuclear Generating Stations A and B site is currently designated in the schedule of the Regulations as a nuclear installation for the purposes of the Act. Bruce Power, the operator of the site, has determined that the current description of the site in the schedule is incomplete, and has provided Natural Resources Canada with a corrected version.

Objectives

The objectives of these regulatory amendments are to update the Regulations to reflect the anticipated decommissioning of the University of Alberta SLOWPOKE 2 Reactor Site and the corrected description of the Bruce Nuclear Generating Stations A and B site.

Description

The amendments have two components:

  1. The revocation of the “University of Alberta: SLOWPOKE 2 Reactor” site as a designated nuclear installation.
    An amendment to the schedule of the Regulations is required to remove the “University of Alberta: SLOWPOKE 2 Reactor” site as a nuclear installation effective on the date that it granted a “Licence to Abandon” from the CNSC. Once removed as a nuclear installation, the University of Alberta, the operator of the site, would no longer be subject to the absolute, exclusive and limited liability of the Act. Also, the University of Alberta would no longer be required to carry financial security to cover its liability.
    The following schedule is envisaged for the decommissioning of the “University of Alberta: SLOWPOKE 2 Reactor” site:
    • — Current status: the University of Alberta has a Non-Power Reactor Operating Licence valid from July 1, 2013, to June 30, 2023.
    • — September 22, 2017: the CNSC approved an amendment to the University of Alberta’s Non-Power Reactor Operating Licence to include decommissioning of the facility.
    • — October/November 2017: University of Alberta is currently in the final stage of decommissioning. The nuclear fuel and activated reactor components have been removed from the site. The fuel (enriched uranium fuel) was sent to a nuclear fuel waste management/reprocessing facility in the United States, while the activated reactor components were sent to the Canadian Nuclear Laboratories facility at Chalk River. In both cases, pursuant to the Act, the University of Alberta remained responsible for any public liability arising from a transportation accident up until the material (in the case of the fuel) reaches the facility in the United States or until liability is assumed by that facility at the Canada-United States border, or, in the case of the activated reactor components, up until it reaches the Chalk River facility, at which point Canadian Nuclear Laboratories would assume responsibility.
    • — When the decommissioning is complete, the University of Alberta is expected to file an application to the CNSC for a “Licence to Abandon” the facility by late December 2017. Upon CNSC approval of the licence, the University of Alberta: SLOWPOKE 2 Reactor site would be revoked as a designated nuclear installation via these regulatory amendments.
  2. The replacement of the description under the “Bruce Nuclear Generating Stations A and B” nuclear installation designation site with a corrected description of the site.
    As Bruce Power Inc., the operator of the site, has obtained legal advice that the description of the site currently contained in the Regulations is incomplete, the description needs to be replaced with a complete version that makes reference to legal instruments contained in the respective land registry office. Making reference to legal instruments in the description would be consistent with the descriptions of the Ontario Power Generation and NB Power nuclear installations in the Regulations.

“One-for-One” Rule

The amendments to the Regulations will only (i) remove the “University of Alberta: SLOWPOKE 2 Reactor site” as a nuclear installation pursuant to the Act; and (ii) replace the description under the “Bruce Nuclear Generating Stations A and B” site with a corrected description of the site. There are no new reporting requirements associated with these amendments. Given that the Regulations do not impose an administrative burden on business, the “One-for-One” Rule does not apply.

Small business lens

The amendments to the Regulations would only affect medium to large businesses. Therefore, the small business lens does not apply, as there are no costs (or insignificant costs) on small business.

Consultation

Both the University of Alberta and Bruce Power Inc. were consulted on this regulatory proposal, and are in agreement with the proposed amendments. With respect to the University of Alberta’s application to amend its licence for the SLOWPOKE 2 Reactor to allow for decommissioning, the CNSC invited public comments on the application in August 2017. However, no comments were received.

Rationale

Once the “University of Alberta: SLOWPOKE 2 Reactor site” is fully decommissioned and all nuclear material has been removed from the site, it will no longer qualify as a “nuclear installation” for the purposes of the Act. As a result, an amendment to the Regulations is required to revoke its designation. Upon the revocation of the designation, the former site would no longer be subject to the absolute, exclusive and limited liability of the Act, but would be subject to the fault-based liability regime of the common law to which most other industries are governed by. Furthermore, the University of Alberta would no longer be required to carry financial security to cover its liability.

The Act requires that the regulation designating a nuclear installation must describe the site. As the description currently contained in the Regulations for the “Bruce Nuclear Generating Stations A and B site” is incomplete, an amendment is required to correct the description.

Contact

Dave McCauley
Director
Uranium and Radioactive Waste Division
Natural Resources Canada
580 Booth Street, 17th Floor, Room C2-4
Ottawa, Ontario
K1A 0E4
Telephone: 343-292-6192
Email: dave.mccauley@canada.ca