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Amendment to the Agreement
To Establish a Joint Review Panel
For the Deep Geologic Repository Project by Ontario Power
Generation Inc. Within the Municipality of Kincardine, Ontario
Between
The Minister of the Environment
-and-
The Canadian Nuclear Safety Commission

WHEREAS the Parties announced the Agreement to Establish a Joint Review Panel for the Deep Geologic Repository Project by Ontario Power Generation Inc. within the Municipality of Kincardine, Ontario (the Agreement) on January 26, 2009; and

WHEREAS section 10.1 of the Agreement allows the terms and provisions to be amended by written memorandum executed by the Parties; and

WHEREAS section 126(1) of the Canadian Environmental Assessment Act, 2012 provides that the environmental assessment of the Project is continued under the process established under that Act and the Agreement is considered to have been entered into by the Federal Minister of the Environment under section 40 of that Act; and

WHEREAS the Parties wish to amend the Agreement to reflect the provisions of the Canadian Environmental Assessment Act, 2012.

Now therefore, the Parties hereby amend the Agreement as follows:

  1. The Preamble to the Agreement is amended as follows:
    1. by updating the references to the Canadian Environmental Assessment Act, to the Canadian Environmental Assessment Act, 2012 in the first, second, eighth and ninth paragraphs as follows:

      WHEREAS the Minister of the Environment has statutory responsibilities pursuant to the Canadian Environmental Assessment Act, 2012;

      WHEREAS the Commission has statutory responsibilities pursuant to the Nuclear Safety and Control Act and to the Canadian Environmental Assessment Act, 2012;

      WHEREAS the Project is within the jurisdiction of the Commission under the Nuclear Safety and Control Act and requires an environmental assessment pursuant to the Canadian Environmental Assessment Act, 2012;

      WHEREAS the Commission is the sole responsible authority for the Project pursuant to the Canadian Environmental Assessment Act, 2012;
    2. by adding the following paragraphs after the fourteenth paragraph:

      WHEREAS the Canadian Environmental Assessment Act has been repealed and the Canadian Environmental Assessment Act, 2012 has come into force; and

      WHEREAS pursuant to section 126 of the Canadian Environmental Assessment Act, 2012, the assessment by the joint review panel is continued under the process established under the Canadian Environmental Assessment Act, 2012 as if it had been referred to a review panel under section 38 of the Canadian Environmental Assessment Act, 2012;
  2. Article 1 of the Agreement "Definitions" is amended by updating references to the Canadian Environmental Assessment Act, 2012:

    "CEAA 2012" means the Canadian Environmental Assessment Act, 2012;

    "Environment" has the same meaning as set out in section 2(1) of the CEAA 2012;

    "Environmental Effect" has the same meaning as set out in section 5of the CEAA 2012;

    "Federal Authority" has the same meaning as set out in section 2(1) of the CEAA 2012;

    "Follow-up program" has the same meaning as set out in section 2(1) of the CEAA 2012;

    "Intervenor" means a person who has been permitted to appear at the Joint Review Panel Hearing pursuant to the public hearing procedures issued by the Joint Review Panel that, in the opinion of the Joint Review Panel, is directly affected by the carrying out of the Project, or has relevant information or expertise that may be useful to the Joint Review Panel in coming to a decision.

    "Jurisdiction" has the same meaning as set out in subsection 2(1) of the
    CEAA 2012;

    "Public Registry" means the Canadian Environmental Assessment Registry established under section 78 of the CEAA 2012, to facilitate public access to records relating to the environmental assessment of the Project;

    "Responsible Authority" has the same meaning as set out in section 2(1) of the CEAA 2012 and for this Project is the Commission;

    "Review" means the assessment by the Joint Review Panel of the environmental effects of the Project to be conducted pursuant to the CEAA 2012 and the consideration of the Licence Application under the NSCA to determine whether the Project will pose an unreasonable risk to the health and safety of persons, the environment and national security;

  3. Article 2.2 of the Agreement is amended as follows:
    2.2
    Nothing in this JRP Agreement shall be construed as limiting the ability of the JRP to have regard to all considerations that appear to be relevant pursuant to section 24 of the NSCA and to include a consideration of the factors set out in the Terms of Reference attached to this Agreement.
  4. Article 4 of the Agreement is amended as follows:
    1. Updating the reference in article 4.1(c) to the Canadian Environmental Assessment Act, 2012, as follows:

      (a) Discharges the requirements set out in the CEAA 2012;

    2. Amending article 4.1(c) as follows:

      (c) Permits it to obtain information and evidence about the adverse effects the project may have on potential or established Aboriginal rights, title or treaty rights as identified to the JRP by the SON and other Aboriginal groups and enables it to bring any such information and evidence to the attention of the Minister of the Environment and the Responsible Authority for the Project in support of consultation between the Crown and the SON and other Aboriginal groups.

    3. Updating references in article 4.2 to the Canadian Environmental Assessment Act, 2012, as follows:
      4.2
      The JRP shall have all the powers and duties of a review panel described in section 45 of the CEAA 2012.
  5. Article 6 of the Agreement is amended by updating references to the Canadian Environmental Assessment Act, 2012, as follows:
    6.1
    Subject to subsections 45(4), and 45(5) and section 81(1) of the CEAA 2012, the Public Registry will include all submissions, correspondence, hearing transcripts, exhibits and other information received by the JRP and all public information produced by the JRP relating to the Review.
    6.2
    The internet site component of the Public Registry will be maintained by the Secretariat during the course of the Review in a manner that provides for convenient public access, and for the purposes of compliance with sections 78 to 81 of the CEAA 2012.
    6.3
    A project file will be maintained by the Secretariat during the course of the Review in a manner that provides for convenient public access, and for the purposes of compliance with section 80 of the CEAA 2012. This project file will be located in the offices of the Secretariat.
  6. Article 7 of the Agreement is amended by amending articles 7.1 and 7.2, and deleting the current article 7.3 and replacing it with a new article 7.3, as follows:
    7.1
    On completion of the review of the project, the JRP will prepare a JRP Report. The Report shall include:
    • an identification of those conclusions that relate to the environmental effects to be taken into account under section 5 of the CEAA 2012; and
    • an identification of recommended mitigation measures that relate to the environmental effects to be taken into account under section 5 of the CEAA 2012.
    7.2
    The JRP will convey the JRP Report in writing to the Minister of the Environment within 515 days of the coming into force of the CEAA 2012. The Minister must make the report available to the public and must advise the public that it is available.
    7.3
    The time period between the issuance by the Panel of any request for information and the submission of the requested information by the proponent is not included in the timeline referred to in article 7.2 above.
  7. Article 7A is added to the Agreement as follows:

    7A Federal Decision Making

    7A.1
    Upon submission of the JRP Report, the Minister of the Environment shall, in a manner consistent with the CEAA 2012, take a decision with respect to the environmental assessment and issue an environmental assessment decision statement.
    7A.2
    The JRP as a panel of the Commission may make a decision with respect to the licence application pursuant to section 24 of the NSCA. The environmental assessment decision statement of the Minister of the Environment will be considered as part of any such licence issued in relation to the project.
    7A.3
    The Minister of the Environment may, before making decisions referred to in subsection 52(1) of the CEAA 2012, require the proponent to collect any information or undertake any studies that, in the opinion or the Minister, are necessary for the Minister to make decisions.
    7A.4
    The Minister of the Environment may, for the purpose of making decisions referred to in subsection 52(1) of the CEAA 2012, require the JRP to clarify any of the conclusions and recommendations set out in the Report.
  8. Article 10.2 of the Agreement is amended as follows:
    10.2
    Subject to sections 62 and 63 of the CEAA 2012, this JRP Agreement may be terminated at any time by an exchange of letters signed by both Parties.
  9. The first paragraph of the section entitled "Part I - Project Description" in the Appendix is amended as follows:

    The Minister of the Environment is proposing that the scope of the project include the site preparation, construction, operation, decommissioning, and abandonment of the project components and activities proposed by OPG Inc. as described in Deep Geologic Repository for Low and Intermediate Level Radioactive Waste – Project Description. The long-term management of used nuclear fuel under the mandate of the Nuclear Waste Management Organization is not within the scope of this project.

  10. The first, third, fourth and fifth paragraphs of the section entitled "Part III - Procedure" in the Appendix are amended by updating references to the Canadian Environmental Assessment Act, 2012 and clarifying the process description as follows:
    1
    The JRP will issue directions on procedures in accordance with the CEAA 2012, NSCA and the provision of the JRP Agreement. The directions on procedures will include the JRP's procedures for the review process including the conduct of the EIS review, communication with the JRP, hearing procedures and/or any other matter the JRP deems appropriate. The JRP may issue separate public hearing procedures prior to the hearings.
    3
    The JRP Hearings will be conducted in accordance with the CEAA 2012, NSCA and this Agreement and will ensure that opportunities are provided for timely and meaningful participation by the public, the SON, and other Aboriginal groups; that technical sessions are scheduled for specific matters of concern; and, that Aboriginal and traditional knowledge is appropriately considered.
    4
    For the purposes of CEAA 2012 or the NSCA, the JRP Hearings shall be public unless the JRP is satisfied after representations made by a witness that specific, direct and substantial harm would be caused to the witness or specific harm to the environment by the disclosure of the evidence, documents or other things that the witness is ordered to give or produce, or that information to be presented involves national or nuclear security; the information is confidential information of a financial, commercial, scientific, technical, personal or other nature that is treated consistently as confidential and the person affected has not consented to the disclosure; or the disclosure of the information is likely to endanger the life, liberty or security of a person.
    5
    The JRP public hearing procedures will establish timelines for presentations to the JRP.  Each presentation may be followed by a question and answer period led by the JRP.
  11. The section entitled "Part IV - Scope of the Environmental Assessment and Factors to be Considered in the Review" in the Appendix is amended as follows:
    1. The Review will include a consideration of the following factors:
      1. The environmental effects of the Project, including the environmental effects of malfunctions, accidents or malevolent acts 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 that have been or will be carried out;
      2. The significance of the effects referred to in (a);
      3. Comments from the public that are received during the Review;
      4. Measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the Project;
      5. The purpose of the Project;
      6. Need for the Project;
      7. Alternatives to the Project
      8. Alternative means of carrying out the Project that are technically and economically feasible and the environmental effects of any such alternative means;
      9. Measures to enhance any beneficial environmental effects;
      10. The requirements of a follow-up program in respect of the Project;
      11. 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; and,
      12. The consideration of community knowledge and Aboriginal traditional knowledge.
  12. The Agreement is amended by adding the following articles to the Appendix  entitled "Terms of Reference for the Joint Review Panel" under a new heading entitled "PART VI – TIMELINES" as follows:
    1
    Subject to article 2 below, the Panel shall complete its mandate and submit its final report to the Minister of the Environment within 515 days from the coming into force of the CEAA 2012.
    2
    The time period between the issuance by the Panel of any request for information and the submission of the requested information by the proponent is not included in the timeline referred to in article 1 above.
    3
    As may be required in order to meet the timeline referred to in article 1 above, the Panel may modify any timelines referred to in Part II of these Terms of Reference. The Panel shall notify the Minister of the Environment, the Commission, and the public of any such modification.

The Agreement, as hereby amended in accordance with the terms thereof, remains in full force and effect.

Original signed by

The Honourable Peter Kent
Minister of the Environment

 

Original signed by

Michael Binder
President, Canadian Nuclear Safety

Date modified: