12 H13.67 Lake Ontario Waterkeeper

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October 15th, 2012

Canadian Nuclear Safety Commissionc/o Louise LevertSecretariat280 Slater St., P.O. Box 1046Ottawa, Ontario K1P 5S9Submitted via email: [email protected] and [email protected]

Re: Request to Intervene: Public Hearing on Environmental Assessment

Screening Report - Refurbishment and Continued Operation of the Darlington

Nuclear Generating Station and other matters concerning the OPGs Darlington

nuclear site, CEAA Reference # 62516, Ref. 2012-H-09

Dear Ms. Levert,

Please find enclosed Lake Ontario Waterkeepers request to intervene on the above-mentioned matter.

Lake Ontario Waterkeeper has an interest in the matter being heard. We are a charitable

organization dedicated to the restoration of a swimmable, drinkable, fishable Lake Ontarioand many of our members reside in the project area. Operating the Darlington NuclearGenerating Stations once-through cooling system for the next 40 years will havesignificant adverse environmental effects on aquatic habitat in Lake Ontario.

Waterkeeper has made significant attempts to participate in the environmental assessmentprocess to date.Wefocused primarilyon the plants cooling water system, which has asignificant impact on the ecology of LakeOntario through fishimpingement andentrainment, thermal pollution, and the emission ofa variety of contaminants (bothradioactive and non-radioactive) to the lake.

Waterkeeper retained the services of four experienced advisors with the help oftheParticipant Funding Program, in order tobetter inform the environmentalassessmentprocess:

600 Bay Street, Suite 410. Toronto, ON M5G 1M6

T 416-861-1237 [email protected] www.waterkeeper.ca

Proud member of Waterkeeper Alliance

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mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Dr. Peter Henderson of Pisces Conservationis an experienced fisheriesbiologistand a leading expert on cooling waterintake structures. He has previouslyprovidedinformation as part of Waterkeepers submission to the environmentalassessmentprocess for the New Nuclear Darlington (NND) project;

Bill Powersis a pollution control engineer with considerable experience inthedesign and evaluation of cooling towersfor the power industry. He hasprovidedengineering testimony in numerous regulatory proceedings, draftedportions ofpolicy notes related to cooling towers for the Edison Power ResearchInstitute, aleading energy-industry body, and advisedon the feasibility of coolingtower retrofitsat a large number of existing industrial facilities;

Sharon Khanis an economist with expertise in economic valuation ofaquaticecosystem services. Sharon launched theClean Water Economics InitiativewithWaterkeeper Alliance, researched ecosystem services for the OceanFoundationsCoastal Ocean Values Center, and produced guidance related to theeconomicvalue of ecosystem services for the UnitedNations EnvironmentProgramme; and,

Super Law Grouphas unique expertise regarding cooling water systemsregulationand policy. In 2011, SLG was leaddrafter of public comments onAmericanenvironmental regulations governing cooling water systems at1200existingfacilities. SLGs principal, Reed Super, is recognized as theU.S.environmental communitys foremost expert on thissubject. SLG providesstate-of-the-art information, analysis, and perspective on cooling water intakeimpacts andmitigation best practices.

In addition to this written submission, we wish to make an oral presentation. Lake OntarioWaterkeeper is also represented by Ms. Krystyn Tully and Mr. Edan Rotenberg.

A hard copy of this submission will be delivered to you this week. If you have anyquestions or comments, please do not hesitate to contact me at any time: (416)861-1237.

Yours truly,

Mark MattsonWaterkeeper & President




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Summary

OPG seeks to reconstruct the four existing nuclear reactors at Darlington and seeks tooperate those reactors and the associated electricity-generating turbines until 2055.Currently, the outdated cooling system for Darlingtons turbines kills millions of fish everyyear and degrades a large area of aquatic habitat. OPG and the Responsible Authoritieshave recognized these fish kills as one of the most important residual adverseenvironmental effect of continuing to operate the Darlington reactors. But while OPG willreplace almost every important component of the reactors, at a cost of more than $10billion, the company plans to use the antiquated condenser cooling system that it has inplace for another 30 years.

There is no need for Darlington to kill fish; replacing the existing once-through

cooling system with a closed-cycle cooling system that saves millions of fish,

including endangered and vulnerable species, is affordable and entirely feasible.

The Responsible Authorities should require OPG to install a closed-cycle cooling

system and to stop killing millions of fish.

In Waterkeepers view, the environmental assessment process to date and the actions ofthe Responsible Authorities have revealed both an unwillingness and a failure to protectLake Ontario:

The Responsible Authorities did not conduct even the most perfunctory analysis ofthe possibility of using a closed-cycle cooling system at Darlington to reduce fishkills, biocide releases, and thermal discharges, even though closed-cycle cooling iswidely acknowledged to be the best performing technology for cooling systems,and even though CNSC staff readily admit that closed-cycle cooling wouldsignificantly reduce fish mortality and other environmental harm caused byDarlingtons current cooling system.

The Responsible Authorities wrongly dismissed the existing fish kills at Darlington asinsignificant.

The Responsible Authorities intend to rely on a vague and unrealistic Adaptive

Management Plan that cannot provide adequate protection for the environment.Instead of installing cooling towers now, the Adaptive Management Plan willindefinitely defer efforts to reduce fish kills and other adverse environmental impactsuntil significant mitigation becomes impractical because the reactors will be fullyrefurbished and in near-constant operation.




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The Responsible Authorities have not adequately assessed how local fishpopulations and their habitat are affected by the cumulative impact of the existing

cooling system, the once-through system proposed (and tentatively approved) forthe new reactors at Darlington, and other significant environmental stressors in theregion, including significant shoreline hardening, habitat loss, and climate change-induced rises in lake water temperatures.

These failures of the draft screening report and the underlying materials preparedand submitted by OPG persist despite the efforts of Lake Ontario Waterkeeper andother public commenters, including Environment Canada, to bring them to theattention of the Responsible Authorities. The data gaps, missing analyses, andother flaws of the draft screening report deprive the CNSC and DFO of the certaintyrequired to conclude the environmental assessment process. Section 20(1)(c) of

the CEAA requires that, where it is uncertain whether the project, taking intoaccount the implementation of any mitigation measures that the responsibleauthority considers appropriate, is likely to cause significant adverse environmentaleffects, the Responsible Authorities cannot approve a screening report and mustseek further review of a project. Pursuant to Sections 20, 25, and 28 of theCanadian Environmental Assessment Act(CEAA), the Responsible Authoritiesshould refer this project to the Minister for review by a panel or, at the very least, forpreparation of a comprehensive environmental assessment report.

The CNSC hearing scheduled for November 13 will also address OPGs request for a

nuclear operating license to extend the life of the Darlington Nuclear Generating Stationfrom the 2020s until 2055. OPG cannot receive such a license because it has not met therequirements of subsection 24(2) of the Nuclear Safety and Control Act (NSCA) OPG hasnot adequately protected the environment at Darlington in the past and has not madeadequate provision for future protection of the environment.

For decades, OPG operated its nuclear facility contrary to Canadas Fisheries Act. Havingbelatedly recognized the need to comply with the law, OPG now intends to seek aFisheries ActAuthorization for future fish kills. But OPGs submission of a patentlyinadequate Environmental Impact Statement that fails to even consider using a closed-

cycle cooling system which is standard practice in the industry and 95% moreenvironmentally protective than the existing once-through cooling water system shows

that OPG still is not prepared to adequately protect the environment. OPGs request for anuclear operating license should be denied.




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Detailed Comments

1. There is no evidence in the record to support the screening reports false andunsubstantiated claim that a closed-cycle cooling system is not reasonably

practicable.

Both OPGs Environmental Impact Statement and the Environmental AssessmentScreening Report identified ongoing impingement, entrainment, and thermal dischargesfrom the Darlington Nuclear Generating Station as the most important residual adverseenvironmental impacts of continued operations. Lake Ontario Waterkeeper suggested thata closed-cycle cooling system is the best and, indeed, the only technology to effectivelyend Darlingtons killing of fish and other aquatic organisms. A closed cycle cooling system

would almost eliminate the adverse environmental impacts associated with Darlingtonscooling water withdrawals. In the screening report, the Responsible Authorities rejectclosed-cycle cooling because towers were not considered to be reasonablypracticable . . . .1

But CNSC, DFO and OPG did not analyze closed-cycle cooling at all before jumping to theconclusion that cooling towers are not reasonably practicable. The only mention of thistechnology in either the Environmental Impact Statement or in the screening report itself isin the Responsible Authorities dismissive response to Lake Ontario Waterkeepers primarysuggestion. And if anything, these comments suggest that the use of cooling towers is

entirely feasible. The Responsible Authorities wrote that As the ecosystem within LakeOntario is continually evolving, it is for this reason that a follow-up monitoring program withan adaptive management approach has been developed. Based on the data that will becollected, the requirement for a closed-cycle cooling system may or may not occursometime in the future.2 Thus, the Responsible Authorities seem to take the view that ifthey later determine that a closed-cycle system is required, one will be built. This clearlyimplies that closed-cycle cooling is practicable: it is technically and economically feasible.Neither OPG nor the Responsible Authorities have provided a single study, conducted anyanalysis, or presented any other form of evidence to support the claim that closed-cyclecooling is not reasonably practicable.




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1 CNSC Staff, Darlington Nuclear Generating Station Refurbishment and Continued Operation, Environmen-

tal Assessment Proposed Environmental Assessment Screening Report, Request for a Decision, at B230

(Sept. 12, 2012) (Proposed Screening Report).

2 Proposed Screening Report at B234.


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Lake Ontario Waterkeeper submitted a great deal of evidence proving that closed-cyclecooling technology is reasonably practicable and feasible, both from a technical and aneconomic perspective.3 As Lake Ontario Waterkeeper pointed out in earlier comments,

many regulators in the United States and other countries have assessed the use of closed-cycle cooling and found it to be reasonably practicable for both new and retrofitted nuclearpower plants. The initial comments also provided the Responsible Authorities withengineering and economic analyses indicating that cooling towers are technologically andeconomically feasible at Darlington.

In the response to public comments, the Responsible Authorities wrote that the Canadianregulatory approach . . . for cooling water system mitigation . . . has been to establishcontrols on a site-specific basis that take into account existing mitigation effectiveness,cost-effectiveness of additional mitigation and proportionality to risk.4 The CNSC and

DFO have utterly failed to follow the Canadian regulatory approach in this case.

First, by dismissing closed-cycle cooling without evidence or analysis, the ResponsibleAuthorities failed to consider either the cost or the effectiveness of additional mitigation ofthe fish kills, thermal discharges, and biocide releases that result from moving to a closed-cycle cooling system at Darlington. Further, in the screening report the Responsible

Authorities recommend that OPG rely on an adaptive management program (AMP), butthe Responsible Authorities did not consider the mitigation effectiveness or the immenseopportunity costs and risks of this approach. Finally, the Responsible Authorities did notdetermine whether the costs of closed-cycle cooling are proportional to the benefits (the

risk of harm averted): saving millions of fish ever y year, increasing the climate resilience ofthe local ecosystem, and protecting vulnerable and endangered species.

Again, while the CNSC, DFO, and OPG have no evidence to rely on with respect to thecost-effectiveness and proportionality of a once-through cooling system, Lake OntarioWaterkeeper has submitted evidence to the Responsible Authorities indicating that closed-cycle cooling is cost-effective at Darlington, and that its risks and benefits are proportional.Indeed, Lake Ontario Waterkeepers submission includes a summary of the most recentdata available anywhere in the world to establish hedonic prices for the non-marketbenefits provided by cooling towers. These data, gathered recently by environmental

economists in the United States from a population that is largely comparable in its wealth,




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3 For the convenience of the Commission, Lake Ontario Waterkeepers initial comments and the accompa-

nying engineering and economic reports are appended to this submission.



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disposable income, and environmental values to Canadians, strongly suggests thatclosed-cycle cooling would pass any cost-benefit analysis. The environmental benefits toCanadians of installing cooling towers to protect Lake Ontario far exceed the costs.

2. The Responsible Authoritieserred in dismissing closed cycle cooling as analternative to or alternative means of accomplishing the refurbishment of

the Darlington Nuclear Generating Station.

In addition to claiming that closed-cycle cooling is not reasonably practicable, the CNSCalso denies its responsibility to consider the use of closed-cycle cooling at Darlington bywriting that Alternatives to and Alternative means of carrying out the project are at thediscretion of the Responsible Authorities for screening-level EAs under the CEA Act, andwere not required for this EA.5

Closed-cycle cooling is not an alternative means of rebuilding and operating a nuclearpower plant. The focus of this project, as described by OPG and in the screening report,is to replace the critical parts of a nuclear reactor and dispose of the radioactive wastecreated. The cooling system for the condensers that support the electricity-generatingsteam turbines is unrelated to the reconstruction of the nuclear reactor. Closed-cyclecooling is a mitigation technology that can reduce the significant fish kills and discharges ofwaste heat and chemical biocides into Lake Ontario that are associated with an ancillarysystem at Darlington. It is self-evident that a closed-cycle cooling system is not analternative to building a nuclear reactor, or an alternative means of rebuilding a nuclear

reactor.

3. The fish kills and thermal discharges at Darlington are significant adverse

environmental impacts that should be mitigated through the use of closed-

cycle cooling.

The screening reports rejection of closed-cycle cooling is based principally on the claimthat the millions of fish killed at Darlington every year are ecologically insignificant. Forexample,

CNSC staff and DFO agree with the interveners conclusion that the closed-cyclecooling would reduce impingement, entrainment and thermal loading. However, as thecurrent numbers and species of fish being impacted by the once through cooling




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system at the DNGS are not considered to be significant, nor are the thermal effects onround whitefish, CNSC staff and DFO are not requesting OPG to assess or install aclosed-cycle cooling system at this time.6

As explained at length in Lake Ontario Waterkeepers initial comments, the ResponsibleAuthorities clearly are wrong to dismiss the death of millions of fish every year, includingmembers of vulnerable and listed species, as insignificant. Although the CNSC and DFOresponded to Lake Ontario Waterkeepers initial comments, the response failed to addressseveral key errors that Lake Ontario Waterkeeper had identified.

First, in the screening report, the Responsible Authorities continue to argue that themortality rates for some species are insignificant relative to lakewide populations withoutconducting a cumulative lakewide analysis in order to substantiate such a claim. Lake

Ontario Waterkeeper pointed out that this violates the cumulative impact analysisrequirement of S.16(1)(a) of the CEAA, but the screening report repeats the mistake. Forexample, with respect to the death of alewife at Darlington, after denying that itsconclusions are based on lakewide analysis, the agency writes that it is reasonable tocompare [alewife] losses with the lake wide population or other metrics such as highabundance and wide geographic distribution. 7 The changes to the screening report inresponse to Lake Ontario Waterkeepers criticism were clearly cosmetic. The CNSC andDFO have not conducted any new analyses, but continue to frame the significance of fishmortality for some key species in comparison to lakewide populations. On this issue,CNSC and DFO staff changed only a single line in the screening report describing fish kills

at the plant: Losses are low relative to lake-wide populations, species at risk and/or othermetrics (e.g., abundance estimates, commercial catches) relative to metrics such aspopulations, species at risk, fishery management agency abundance estimates, andcommercial catches.8 This revision obscures, but does not change the fact that theResponsible Authorities are determining the significance of fish kills by reference tolakewide populations without conducting a cumulative impact analysis.

Second, the Responsible Authorities entirely ignored OPGs failure to provide sufficiententrainment data for the CNSC to make an informed decision about the significance ofentrainment at the plant. As Lake Ontario Waterkeeper has pointed out, OPG has not

submitted entrainment data in the past eight years, although other measures indicate




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8 Compare Proposed Screening Report at p.90 with Draft Screening Report (June, 2012) at p.86.


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clearly that entrainment has skyrocketed by 300% or more for some species. TheResponsible Authorities completely overlook this glaring deficiency in the informationprovided by OPG.

Third, the government ignores the significant numbers of round goby killed by the plantbecause, according to the Responsible Authorities, federal and provincial officials are notpresently managing for or protecting this species.9 This review must address Darlingtonsenvironmental impacts over the next 50 years. The round goby has become part of LakeOntarios aquatic ecosystem and trophic chain for the foreseeable future, including for theremaining useful life of the refurbished reactors. Similarly, many of the dominant species inthe Great Lakes today, such as the alewife, are invasive species that are now importantprey species in the lake. It is arbitrary and irrational to ignore all impacts on a species that,for better or worse, has become a significant part of the lake's ecology.

Fourth, the screening report still particularly fails to adequately consider the combinedimpact of the thermal discharges from the existing and proposed new reactors in light ofanticipated increase in lake temperatures because of climate change. LOW is not alone inquestioning the adequacy of the analysis underlying the Responsible Authoritiesconclusions that fish kills and thermal discharges caused by Darlingtons existing cooingsystem are insignificant. Environment Canada requested an analysis of the thermaleffects of the diffuser discharge under a climate change scenario. This has not beenprovided to ECs satisfaction.10 Because the thermal impacts analyses in the EIS and theScreening Report are inadequate, OPG has not carried its burden of proof OPG has not

demonstrated that continued operation of a once-through cooling system is adequatelyprotective of the environment in general , and of round whitefish in particular.

Finally, CNSC and DFO staff did not follow the guidance provided by the FederalEnvironmental Assessment Review Office in determining whether the fish kills and otheradverse environmental impacts of Darlingtons once-through cooling system are significant.

The federal Reference Guide: Determining Whether A Project is Likely to Cause SignificantAdverse Environmental Effects provides authoritative guidance on how ResponsibleAuthorities (RAs) like the CNSC and DFO should make significance determinations.11 And




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11 See Federal Environmental Assessment Review Office, Canadian Environmental Assessment Agency,

Reference Guide: Determining Whether A Project is Likely to Cause Significant Adverse Environmental Ef-

fects, http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=D213D286-1 (Reference Guide).
http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=D213D286-1http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=D213D286-1


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that guidance makes clear, first, that [i]f the RA decides that the project is not likely tocause significant adverse environmental effects, it may allow the project to proceed, whileensuring that any appropriate mitigation measures are implemented.12 But the screening

report before the Responsible Authorities does not include or ensure the implementation ofappropriate mitigation measures.

That guidance also states that ecological context is important in determining significance:[t]he adverse environmental effects of projects may be significant if they occur in areas orregions that ... have already been adversely affected by human activities; and/or areecologically fragile and have little resilience to imposed stresses.13 As noted in LakeOntario Waterkeepers initial comments, the fish kills and thermal discharges fromDarlingtons once-through cooling system are significant in light of the ecological context:rampant habitat loss and impairment throughout the littoral zone of the western portion of

Lake Ontarios northern shore. But the screening report does not analyze or consider thisecological context in determining significance.

4. The proposed adaptive management plan is a ridiculous approach to reducing

entrainment, impingement, and thermal discharge in the future.

The Responsible Authorities should not allow OPG to rely on an adaptive managementplan that defers mitigation efforts and avoids taking environmentally protective and cost-effective actions now. Adaptive management is predicated on an ability to respondincrementally to future signals. But there are no incremental responses to the problems

caused by Darlingtons once-through cooling system; a retrofit will not be feasible after therefurbishment ends. Either a change to the cooling water system is made now, or never.

Even if a retrofit were possible, it likely would not come soon enough to save a number ofspecies in Lake Ontario that CNSC and DFO staff agree are currently undergoing severepopulation fluxes. CNSC and DFO admit that monitoring is required into the futurebecause many populations of fish species such as alewife, lake trout, salmon, lakesturgeon, white sucker and emerald shiner are unstable or in decline because of thecombined impacts of invasive species, overfishing, pollution and habitat destruction.14 Inparticular, the government finds losses of the slimy sculpin notable and in need of further

study. The purpose of an EA screening is prevention - to note adverse environmental




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12 Reference Guide at 185.

13 Reference Guide at 190.



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impacts and mitigate thembefore harm occurs. Instead, the government proposes to waitfor significant impacts on endangered or vulnerable species before taking action. By then,it may not be possible to act; in any case, it will be too late.

The DNGS will operate to 2055, and this screening report must address concerns acrossthat entire window of time. The Responsible Authorities accept that Lake Ontario isundergoing significant ecosystem changes at a rapid rate. A presently stable species canreach a state in which it is barely able to maintain numbers in a matter of years. And as thegovernment admits, many species are already struggling. When species begin to struggle,additional mortality caused by impingement, entrainment, thermal pollution, or biocidescan exacerbate the decline. Therefore, a conservative approach should be applied todecisions about cooling water. Reliance on adaptive management is irresponsible and, inthis context, is not consistent with the values of the CEAA.

Further, the screening report does not include any analysis of the risks of reliance onadaptive management and the opportunity costs of delaying installation of a closed-cyclecooling system. Even the most peremptory analysis would show that the CNSCsexpectation that a closed-cycle cooling system may be retrofitted sometime after therefurbishment project concludes is completely unrealistic. Additional forced outages andconstruction costs will be more expensive and disruptive later. If the closed-cycle coolingsystem is not installed now, it will never be installed later.In reality, once a cooling waterintake is approved and built, nothing reasonably can be done to limit entrainment andimpingement or to reduce thermal discharge without significantly curtailing electricity

generation or requiring multiple reactor outages and power disruptions.

For the reasons above, reliance on an adaptive management plan at Darlington is irrationaland unlawful it does not constitute adequate protection of the environment or adequatemitigation of the environmental impacts of building and rebuilding nuclear reactors on theshore of Lake Ontario. The time to design and fit protective technology at Darlington is atthe beginning of the refurbishment process. This will give more time for the costs to berecouped and will avoid lost generation. If OPG installs cooling towers now, the benefitsto the plant and the lake are fixed for 40 years. OPG will not be burdened for years tocome with concerns about their environmental impacts.

5. Cumulative effects have not been adequately considered under S. 16(1)(a) of

the CEAA.

The CNSC and DFO admit that many populations of fish species such as alewife, laketrout, salmon, lake sturgeon, white sucker and emerald shiner are unstable or in decline




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because of the combined impacts of invasive species, overfishing, pollution and habitatdestruction.15 In light of this knowledge, the CNSC and DFO have an addedresponsibility to consider the combined thermal, impingement, and entrainment impacts of

the existing and planned new reactors at Darlington. In any case, the law requires theResponsible Authorities to consider the cumulative impacts of both projects and any othersignificant environmental stresses. As Lake Ontario Waterkeeper pointed out in its initialcomments, the other stresses include significant shoreline hardening, habitat loss, andclimate change-induced rises in lake water temperatures that affect the designated studyareas.

6. The screening report has proved to be is thoroughly inadequate.

As Lake Ontario Waterkeeper pointed out more extensively in its initial comments, the

patent flaws of the draft screening report deprive the CNSC and DFO of the certaintyrequired to conclude this environmental assessment process under Sections 20 and 25 ofthe CEAA. In order to fill the significant gaps in the screening report, the Responsible

Authorities should refer this project to the Minister for review by a panel or, at the veryleast, for preparation of a comprehensive environmental assessment report.

Additionally, section 28 of the CEAA specifies that the Minister should also refer projects toa mediator or panel review where warranted by public concern. From the outset,numerous public commenters indicated that the refurbishment is a large, serious andparticularly controversial undertaking that poses significant environmental risks now and for

the indefinite future and asked that the Responsible Authorities refer the project for a panelreview or, at least, require a comprehensive environmental assessment. The shortcomingsof the draft screening only heighten that public concern. The Responsible Authoritiesshould recommend to the Minister that this project be referred to a panel for review unlessOPG agrees to install a closed-cycle cooling system.

In the Scoping Information Document for this environmental assessment, issued inOctober 2011, the CNSC wrote that a more thorough review was not warranted becauseprevious refurbishments had been subject only to screening reports and CNSC staff feltthey are familiar with the technology being presented in this project as well as the suite of




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potential environmental effects and associated mitigation measures.16 But the screeningreports summary dismissal of closed-cycle cooling as not reasonably practicableexposes the fallacy of this claim. The Responsible Authorities choice to reject closed-

cycle cooling is completely unsupported by any underlying analysis of the merits, technicalor economic feasibility, costs, or environmental benefits of closed-cycle cooling technology.Clearly, either CNSC staff are not as familiar with the associated mitigation measures asthey claim, or they have deliberately issued an environmental assessment that ignores thesingle most effective mitigation measure available. Either way, we have reached thepotential end of the environmental assessment process and the only argument presentedto the Canadian public is that CNSC staff are familiar with the technologies and should betrusted to accept or reject environmental mitigation technologies without any factualsupport or explanation. At this stage, to conclude the environmental assessment processby approving this screening report and allowing the reconstruction of the Darlington

reactors to proceed with the existing once-through cooling system would be a clearabdication of the Responsible Authoritiess duties under the CEAA.

7. Under the CEAA, the Darlington Nuclear Generating Station Refurbishment is

a construction and expansion project that must undergo a comprehensive

environmental assessment that considers the use of closed-cycle cooling.

The Responsible Authorities must prepare a comprehensive study because thereconstruction of the Darlington Nuclear Generating Station is a construction project andexpansion project for which a comprehensive study is required pursuant to the CEAAs

Comprehensive Study List Regulations. Under the CEAA Comprehensive Study ListRegulations, a comprehensive study is required for The proposed construction,decommissioning or abandonment, or an expansion that would result in an increase inproduction capacity of more than 35 per cent, of . . . a Class IA nuclear facility that is anuclear fission reactor that has a production capacity of more than 25 MW (thermal).17

The refurbishment of the DNGS is a construction and expansion project within themeaning of the Comprehensive Study List Regulations. The refurbishment of these




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16 CNSC, Record of Proceedings, Including Reasons for Decision In the Matter of Ontario Power Generation

Inc.

Environmental Assessment Scoping Information Document (Scope of Project and Assessment) for the Pro-

posed

Darlington Nuclear Generating Station Refurbishment and Continued Operation p.8-9 (2011) (Scoping In-

formation Document).

17 Comprehensive Study List Regulations S.19(d).


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nuclear reactors is not a matter of simple or even extensive maintenance. Rather, OPGplans to remove and replace nearly every critical component of the nuclear reactor andsome of its ancillary facilities. Without this refurbishment, Darlingtons operational life will

conclude in the early 2020s, after 30 years in operation. The refurbishment is intended todouble Darlingtons lifetime, extending operations to approximately 2055. At more than$10 billion, the cost of refurbishing Darlingtons reactors is equivalent to building a newnuclear power plant, more than five new fossil-fuel power plants, or almost 3,000 of thelargest commercial wind turbines currently available. Effectively, OPG is going to build fournew nuclear reactors within existing concrete shells.

The phrase construction, decommissioning or abandonment of [a facility] is usedthroughout the Comprehensive Study List Regulations to describe the kinds of projects inalmost every sector of the economy that are subject to a comprehensive study.18 But

none of these other sectors have an analogous refurbishment process that involvesspending a sum equal to the original construction cost in order to replace every criticalcomponent at the project site, double the projects lifetime and, by extension, double itslifetime production capacity and double the total environmental impact of the plantsoperations. The Regulations clearly envision that construction, energy, and industrialprojects of this size and scope will be subject to a comprehensive environmental review.

8. OPG should not be granted a license to operate the Darlington Nuclear

Generating Station because it has not adequately protected the environment

at Darlington in the past and has not made adequate provision for future

protection of the environment. OPG submitted an indequate EIS and hasoperated in violation of theFisheries Actfor decades.

In addition to reviewing the environmental assessment screening report, at the hearingplanned for Nov. 13 the Commission will hear public testimony on whether OPG should begranted a licence to operate the DNGS under subsection 24(2) of the Nuclear Safety andControl Act. That Act provides that No licence shall be issued, renewed, amended orreplaced and no authorization to transfer one given unless, in the opinion of theCommission, the applicant . . . will, in carrying on that activity, make adequate provision forthe protection of the environment . . . .19




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18 See Comprehensive Study List Regulations S.1 (national parks), 2 (migratory bird sanctuaries), 4, 6, and 7

(electrical generating stations and transmission lines), 8 (dams and dykes), 9 (water diversions), 10 (ground

water extraction), 11-13 (oil and gas extraction), 16 and 18 (mines), 19 (nuclear facilities), 20-22 (industrial

facilities), 28 and 30 (marine or air transport facilities), 32 (waste management facilities).

19 NSCA S.24(4).


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OPG bears the onus of proving it will adequately protect the environment. In order to issuea licence, the CNSC must be certain that OPG will adequately protect the environment

throughout each stage of the project. If the CNSC has insufficient information on which tobase this conclusion, it cannot issue a licence. And if the CNSC decides to issue a licence,it has the authority and responsibility to impose terms and conditions to ensure acceptedenvironmental protection measures are enforceable, pursuant to NSCA Subsection 24(5).

OPG has failed to carry its burden of proof on protection of the environment and, therefore,the CNSC should deny OPG a nuclear operating license. OPG has not adequatelyprotected the environment in the past at Darlington. Since 1993, OPG has harmfullyaltered, disrupted, and destroyed fish habitat through infill and building intake anddischarge structures, which required authorization under subsection 35(2) of the Fisheries

Actthat OPG never sought. For decades, OPGs use of once-through cooling atDarlington has killed millions of fish annually through impingement and entrainment. Thisalso necessitated authorization under section 32 of the Fisheries Actthat OPG neversought. These activities constitute quasi-criminal violations of the federal Fisheries Act.20Further, since 1993, OPG has violated section 36(3) of the Fisheries Act, which isadministered by Environment Canada, by discharging sufficient waste heat into LakeOntario to degrade and alter fish habitat. Section 36(3) prohibits the discharge of asubstance deleterious to fish into waters frequented by fish. No mixing zone is permitted,such that it is the substance at the point of discharge that is tested for deleteriousness.

The definition of a deleterious substance includes any water . . . that has been so treated,

processed or changed,by heat or other means, from a natural state that it would, if addedto any other water, degrade or alter or form part of a process of degradation or alterationof the quality of that water so that it is rendered or is likely to be rendered deleterious tofish or fish habitat or to the use by man of fish that frequent that water.21 For thirty years,OPG has blatantly disregarded the environmental laws governing its operations atDarlington. A company that operated for decades in flagrant and quasi-criminal violationof federal environmental law cannot credibly claim to make adequate provision forprotection of the environment.

OPGs patently inadequate Environmental Impact Statement shows that (a) it is not

currently making adequate provision for protection of the environment and (b) that it doesnot expect the RAs to enforce the meaning and spirit of the CEAA, the Fisheries Act., etc.




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20 Fisheries Act, R.S.C., 1985, c. F-14.

21 Fisheries Act, R.S.C., 1985, c. F-14, s. 34(1).


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The failings of the Environmental Impact Statement are recounted thoroughly in LakeOntario Waterkeepers initial comments. Most critically, the EIS completely ignores the useof cooling towers at Darlington. A company that disregards environmental technologies

that are standard in the industry without any explanation or analysis cannot credibly claimto make adequate provision for protection of the environment.

Finally, OPGs reliance on an adaptive management plan in lieu of concrete action toreduce impingement, entrainment, and thermal discharges that harm vulnerable andthreatened species does not constitute making adequate provision for protection of theenvironment in the future. As explained above, the adaptive management plan isunrealistic. If OPG does not make environmentally protective investments in coolingtowers now, it will never do so in the future.

Therefore, OPG has not made, is not making, and will not make adequate provision forprotection of the environment. OPGs request for a license should be rejected pursuant tosection 24(4) of the Nuclear Safety and Control Act. If the CNSC decides to issue alicense, the CNSC should require the use of a closed-cycle cooling system as a necessaryenvironmental protection measure, pursuant to section 24(5) of the Act.

Conclusion

There is no need for the Darlington nuclear reactors to kill millions of fish. A closed-cycle

cooling system an affordable and feasible mitigation measure. We urge the ResponsibleAuthorities to reject this deeply flawed screening report and deny the proponents requestfor approval; or, at minimum, initiate a thorough environmental assessment review thatsatisfies Canadians expectation that government will make decisions for the betterment oftheir environment. Furthermore, we urge the Responsible Authorities to condition anyultimate approval of this project, including OPGs nuclear operating licence, on the use of aclosed-cycle cooling system at Darlington.

Darlingtons once-through cooling system was outdated even before it went into operation.By the time that Darlington was designed and built, in the 1980s and early 1990s, once-

through cooling was already an antiquated technology and nearly all new North Americanpower plants were being built with a closed-cycle cooling system. To renew this systemslease on life for another 30 years is a mistake.

Lake Ontario is an irreplaceable resource, an ecosystem of international importance that




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provides significant ecological services. To protect the lake, this environmentalassessment process ultimately should require the use of closed-cycle cooling atDarlington. Installation of cooling towers is a reasonably practicable, technologically

available, economically achievable measure to mitigate a very large proportion ofDarlingtons significant adverse environmental impacts on Lake Ontario.

We thank the CNSC and DFO for the opportunity to submit these comments, with onecaveat. No doubt you have heard from many public intervenors over the years thatProjects X or Y fail to meet the standards of the CEAA. In many cases, you havedisagreed. Waterkeeper is worried that our familiar refrain, in which we express concernsabout nuclear projects and adequate protection of our air and water, have callouseddecision-makers against our concerns. As our alarm increases, yours appear to decreaseso much so that valid, informative advice from seasoned professionals such as the

experts this process funded to work with us is now dismissed out of hand.

Lake Ontario Waterkeeper did not contribute to this environmental assessment process inorder to help the CNSC and DFO check off the public consultation boxes on theirrespective To Do lists. We have retained experts, submitted comments, and filed thisrequest to intervene to help improve the ultimate decision. This is not happening. In fact, inour view, public consultation has not yet occurred at all.

We were shocked by the CNSC staffs incredibly dismissive and erroneous disregard for

the material presented in our July 2012 submission. We are frustrated by theCommissions decision to significantly limit the hearing in November. So flawed has thisprocess been that it bears nearly all of the hallmarks of failed public consultation, as setout by Sheedy et. al and other experts.22 The decision-makers in this process have statedthey have no power regarding the shape of the policy in question (i.e., the decision torefurbish Darlington). The public has been invited to participate only in the final stages ofthe approvals process. The public has been invited to comment only on a pre-determinedset of alternatives. Decision-makers have utterly failed to incorporate comments into theirdecisions and recommendations. In light of these failures, Waterkeeper would like to makeit clear that our participation in this proceeding is in no way an endorsement of the natureof this consultation process. We look forward to an opportunity to speak directly to theCommission members in November, ideally as early in the presentation order as ispossible.




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22Sheedy,A.etal.HandbookonCi+zenEngagement:BeyondConsulta+on.March2008.CanadianPolicyResearch

Networks.p.5.Onlineath@p://www.cprn.org/documents/49583_EN.pdf
http://www.cprn.org/documents/49583_EN.pdfhttp://www.cprn.org/documents/49583_EN.pdf


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Attachments:

Request to Intervene, Lake Ontario Waterkeeper, July 17, 2012 Appendix 1 - Biological Report by Dr. Peter Henderson Appendix 2 - Engineering Report by Bill Powers Appendix 3 - Economic Report by Sharon Khan Appendix 4 - EPA Supporting Document for Stated Preference Survey Appendix 5 - Analysis of EPA Stated Preference Survey by Dr. Frank Ackerman Appendix 6 - Economic feasibility Analysis of Cooling Tower Retrofit of Delaware City Refinery Appendix 7 - Aquatic Report by Dr. Peter Henderson Appendix 8 - Hydrogeologic Report by Wilf Ruland Appendix 9 - Water Quality Monitoring Report by David Dillenbeck




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CMD 12-H13.67

Submission from Lake Ontario Waterkeeper Mmoire de Lake Ontario Waterkeeper

The attachments listed on page 18 of thesubmission from Lake Ontario Waterkeeper are

available upon request on a compact disk (CD).

Les pices jointes numres la page 18du mmoire de Lake Ontario Waterkeeper

sont disponibles sur demande sur disque

compact (DC).

12 H13.67 Lake Ontario Waterkeeper

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Transcript of 12 H13.67 Lake Ontario Waterkeeper