Nuclear Fuel Waste Act

S.C. 2002, c. 23

Assented to 2002-06-13

An Act respecting the long-term management of nuclear fuel waste

SUMMARY

This enactment implements a key component of the Government of Canada’s 1996 Policy Framework for Radioactive Waste — that the federal government, through effective oversight, would ensure that the long-term management of radioactive waste is carried out in a comprehensive, integrated and economically sound manner. The key elements of the enactment include

(a) requiring the major owners of nuclear fuel waste to establish a waste management organization (referred to in this Summary as the “WMO”) to carry out the managerial, financial and operational activities to implement the long-term management of nuclear fuel waste;

(b) requiring the major owners of nuclear fuel waste to establish trust funds and to make annual payments into those trust funds to finance the long-term management of nuclear fuel waste; and

(c) authorizing the Governor in Council to make a decision on the choice of approach for long-term management of nuclear fuel waste for Canada to be implemented by the WMO.

The enactment also requires that the WMO carry out public consultations, that the WMO’s study and reports (which are submitted to the Minister) be made public, that the WMO establish an Advisory Council, whose comments on the WMO’s study and reports are made public, and that the Minister make public statements on all of the WMO’s reports.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Nuclear Fuel Waste Act.

INTERPRETATION

Marginal note:Definitions

2. The following definitions apply in this Act.

“economic region”

« région économique »

“economic region” means an economic region described by Statistics Canada in its Guide to the Labour Force Survey, published on January 31, 2000.

“management”

« gestion »

“management”, in relation to nuclear fuel waste, means long-term management by means of storage or disposal, including handling, treatment, conditioning or transport for the purpose of storage or disposal.

“Minister”

« ministre »

“Minister” means the Minister of Natural Resources or such member of the Queen’s Privy Council for Canada as the Governor in Council may designate as the Minister for the purposes of this Act.

“nuclear energy corporation”

« sociétés d’énergie nucléaire »

“nuclear energy corporation” means

(a) Ontario Power Generation Inc., Hydro-Québec, New Brunswick Power Corporation, and any other body that owns nuclear fuel waste resulting from the production of electricity by means of a commercial nuclear reactor;

(b) any successor or assignee of a corporation mentioned in paragraph (a); and

(c) any assignee of Atomic Energy of Canada Limited, being the company incorporated or acquired pursuant to subsection 10(2) of the Atomic Energy Control Act, chapter A-19 of the Revised Statutes of Canada, 1970.

“nuclear fuel waste”

« déchets nucléaires »

“nuclear fuel waste” means irradiated fuel bundles removed from a commercial or research nuclear fission reactor.

“prime rate”

« taux de base »

“prime rate” means, for any day, the rate of interest charged by banks to their most credit-worthy borrowers for short-term business loans, as determined and published by the Bank of Canada for the month in which the day falls.

“waste management organization”

« société de gestion »

“waste management organization” means the corporation established under section 6, regardless of the actual name of that corporation.

PURPOSE OF ACT

Marginal note:Comprehensive, integrated and economically sound approach

3. The purpose of this Act is to provide a framework to enable the Governor in Council to make, from the proposals of the waste management organization, a decision on the management of nuclear fuel waste that is based on a comprehensive, integrated and economically sound approach for Canada.

APPLICATION OF ACT

Marginal note:Binding on Her Majesty

4. This Act is binding on Her Majesty in right of Canada or a province.

Marginal note:Application to nuclear energy corporations and AECL

5. This Act applies to a nuclear energy corporation and to Atomic Energy of Canada Limited only if it is the owner of nuclear fuel waste.

WASTE MANAGEMENT ORGANIZATION

Marginal note:Incorporation and purpose

6. (1) The nuclear energy corporations shall establish a corporation, in this Act referred to as the waste management organization, whose purpose under this Act is to do the following on a non-profit basis:

(a) propose to the Government of Canada approaches for the management of nuclear fuel waste; and

(b) implement the approach that is selected under section 15 or is approved under subsection 20(5).

Marginal note:Participation in waste management organization

(2) Once the waste management organization has been established, every nuclear energy corporation shall become and remain a member or shareholder of it.

Marginal note:Not an agent of Her Majesty

(3) For all purposes the waste management organization is not an agent of Her Majesty in right of Canada.

Marginal note:Duty toward other owners of nuclear fuel waste

7. The waste management organization shall offer, without discrimination and at a fee that is reasonable in relation to its costs of managing the nuclear fuel waste of its members or shareholders, to

(a) Atomic Energy of Canada Limited, and

(b) all owners of nuclear fuel waste produced in Canada that are neither members nor shareholders of the waste management organization

its nuclear fuel waste management services that are set out in the approach that the Governor in Council selects under section 15 or approves under subsection 20(5).

Marginal note:Advisory Council

8. (1) The waste management organization shall create an Advisory Council, which shall

(a) examine the study referred to in subsection 12(1) and the triennial reports referred to in section 18 that are to be submitted to the Minister; and

(b) give written comments on that study and those reports to the waste management organization.

Marginal note:Representation on Advisory Council

(2) The members of the Advisory Council shall be appointed by the governing body of the waste management organization. The governing body shall make all reasonable efforts to ensure that the Advisory Council’s membership

(a) reflects a broad range of scientific and technical disciplines related to the management of nuclear fuel waste;

(b) reflects expertise, in matters of nuclear energy,

(i) in public affairs, and

(ii) as needed, in other social sciences;

(b.1) reflects expertise in traditional aboriginal knowledge; and

(c) includes representatives nominated by local and regional governments and aboriginal organizations that are affected because their economic region is specified for the approach that the Governor in Council selects under section 15 or approves under subsection 20(5).

FINANCING

Marginal note:Trust funds

9. (1) Each nuclear energy corporation and Atomic Energy of Canada Limited shall maintain in Canada, either individually or jointly with one or more of the other nuclear energy corporations or Atomic Energy of Canada Limited, one trust fund with a financial institution incorporated or formed by or under an Act of Parliament or of the legislature of a province, except, in the case of a nuclear energy corporation, a financial institution in relation to which the nuclear energy corporation beneficially owns, directly or indirectly, more than ten per cent of the outstanding shares of any given class of shares.

Marginal note:Documents relating to trust funds

(2) The financial institution that holds a trust fund referred to in this section shall maintain in Canada all documents relating to that trust fund.

Marginal note:Initial deposit to trust funds

10. (1) Each body mentioned in this subsection shall, either directly or through a third party, no later than 10 days after the day on which this Act comes into force, deposit to its trust fund maintained under subsection 9(1) the following respective amounts:

(a) Ontario Power Generation Inc., $500,000,000;

(b) Hydro-Québec, $20,000,000;

(c) New Brunswick Power Corporation, $20,000,000; and

(d) Atomic Energy of Canada Limited, $10,000,000.

Marginal note:Subsequent deposits to trust funds

(2) Each body mentioned in this subsection shall in each year, either directly or through a third party, no later than the anniversary of the day on which this Act comes into force, deposit to its trust fund maintained under subsection 9(1) the following respective amounts:

(a) Ontario Power Generation Inc., $100,000,000;

(b) Hydro-Québec, $4,000,000;

(c) New Brunswick Power Corporation, $4,000,000; and

(d) Atomic Energy of Canada Limited, $2,000,000.

Marginal note:When obligation ceases to apply

(3) Subsection (2) ceases to apply on the day on which the Minister approves the amount of the deposit under paragraph 16(3)(a).

Marginal note:Calculation of interest

(4) Interest accumulates on any portion of a deposit not paid by the day referred to in subsection (1) or (2), at the prime rate plus two per cent, calculated daily from the day referred to in subsection (1) or (2), as the case may be, to the day before the day of the deposit.

Marginal note:Latest date for deposit

(5) Each body mentioned in subsection (1) or (2) shall, either directly or through a third party, deposit to its trust fund maintained under subsection 9(1), no later than 30 days after the date of the decision of the Governor in Council under section 15, the applicable amount referred to in subsection (1) or (2) plus an amount, if any, equal to the interest.

Marginal note:Withdrawals from trust funds

11. (1) Only the waste management organization may withdraw moneys from a trust fund maintained under subsection 9(1).

Marginal note:Condition for withdrawals

(2) The waste management organization may make withdrawals only for the purpose of implementing the approach that the Governor in Council selects under section 15 or approves under subsection 20(5), including avoiding or minimizing significant socio-economic effects on a community’s way of life or on its social, cultural or economic aspirations.

Marginal note:First withdrawal

(3) The waste management organization may make the first withdrawal only for an activity in respect of which a construction or operating licence has, after the date of the decision of the Governor in Council under section 15, been issued under section 24 of the Nuclear Safety and Control Act.

Marginal note:Ministerial approval

(4) If the Minister is of the view that the waste management organization has withdrawn moneys from a trust fund contrary to subsection (2) or (3), the Minister may require the Minister’s prior approval in respect of any future withdrawal from a trust fund by the waste management organization.

STUDY BY WASTE MANAGEMENT ORGANIZATION

Marginal note:Study within three years

12. (1) Within three years after the coming into force of this Act, the waste management organization shall submit to the Minister a study setting out

(a) its proposed approaches for the management of nuclear fuel waste, along with the comments of the Advisory Council on those approaches; and

(b) its recommendation as to which of its proposed approaches should be adopted.

Marginal note:Methods to manage nuclear fuel waste

(2) Each of the following methods must be the sole basis of at least one approach:

(a) deep geological disposal in the Canadian Shield, based on the concept described by Atomic Energy of Canada Limited in the Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste and taking into account the views of the environmental assessment panel set out in the Report of the Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel dated February 1998;

(b) storage at nuclear reactor sites; and

(c) centralized storage, either above or below ground.

Marginal note:Technical description, region

(3) The study must include a detailed technical description of each proposed approach and must specify an economic region for its implementation.

Marginal note:Comparison of risks, etc.

(4) Each proposed approach must include a comparison of the benefits, risks and costs of that approach with those of the other approaches, taking into account the economic region in which that approach would be implemented, as well as ethical, social and economic considerations associated with that approach.

Marginal note:Services to certain owners of waste

(5) Each proposed approach must include a description of the nuclear fuel waste management services to be offered by the waste management organization under section 7.

Marginal note:Implementation plan

(6) Each proposed approach must include an implementation plan setting out, as a minimum,

(a) a description of activities;

(b) a timetable for carrying out the approach;

(c) the means that the waste management organization plans to use to avoid or minimize significant socio-economic effects on a community’s way of life or on its social, cultural or economic aspirations; and

(d) a program for public consultation.

Marginal note:Consultation

(7) The waste management organization shall consult the general public, and in particular aboriginal peoples, on each of the proposed approaches. The study must include a summary of the comments received by the waste management organization as a result of those consultations.

Marginal note:Financial aspects

13. (1) The study must set out, with respect to each proposed approach, a formula to calculate the annual amount required to finance the management of nuclear fuel waste. The report must explain the assumptions behind each term of the formula. The formula must include the following terms:

(a) the estimated total cost of management of nuclear fuel waste, which must take into account natural or other events that have a reasonable probability of occurring;

(b) the estimated rate of return on the trust funds maintained under subsection 9(1);

(c) the life expectancy of the nuclear reactors of each nuclear energy corporation and of Atomic Energy of Canada Limited; and

(d) the estimated amounts to be received from owners of nuclear fuel waste, other than nuclear energy corporations and Atomic Energy of Canada Limited, in return for services of management of nuclear fuel waste.

Marginal note:Respective percentages

(2) The study must set out, with respect to each proposed approach, the respective percentage of the estimated total cost of management of nuclear fuel waste that is to be paid by each nuclear energy corporation and Atomic Energy of Canada Limited, and an explanation of how those respective percentages were determined.

Marginal note:Financial guarantees

(3) The study must set out the form and amount of any financial guarantees for the management of nuclear fuel waste that have been provided by the nuclear energy corporations and Atomic Energy of Canada Limited under the Nuclear Safety and Control Act.

Marginal note:Minister may consult public

14. (1) The Minister may engage in such consultations with the general public on the approaches set out in the study as the Minister considers necessary.

Marginal note:Revision of study

(2) If the Minister is of the opinion that the study fails in a significant way to meet the requirements of sections 12 and 13, the Minister shall direct the waste management organization to revise the relevant portions of it and submit the revised study to the Minister within the period that the Minister specifies.

Marginal note:Decision of Governor in Council

15. The Governor in Council, on the recommendation of the Minister, shall select one of the approaches for the management of nuclear fuel waste from among those set out in the study, and the decision of the Governor in Council shall be published in the Canada Gazette.

REPORTS BY WASTE MANAGEMENT ORGANIZATION

Marginal note:Obligation to submit annual reports

16. (1) The waste management organization shall, within three months after the end of each fiscal year of the organization, submit to the Minister a report of its activities for that fiscal year.

Marginal note:Contents of annual report after section 15 decision

(2) Each annual report after the date of the decision of the Governor in Council under section 15 must include

(a) the form and amount of any financial guarantees that have been provided during that fiscal year by the nuclear energy corporations and Atomic Energy of Canada Limited under the Nuclear Safety and Control Act and relate to implementing the approach that the Governor in Council selects under section 15 or approves under subsection 20(5);

(b) the updated estimated total cost of the management of nuclear fuel waste;

(c) the budget forecast for the next fiscal year;

(d) the proposed formula for the next fiscal year to calculate the amount required to finance the management of nuclear fuel waste and an explanation of the assumptions behind each term of the formula; and

(e) the amount of the deposit required to be paid during the next fiscal year by each of the nuclear energy corporations and Atomic Energy of Canada Limited, and the rationale by which those respective amounts were arrived at.

Marginal note:Minister’s approval of formula and deposits

(3) The formula referred to in paragraph (2)(d) and the amount of each deposit referred to in paragraph (2)(e) are subject to the approval of the Minister when proposed in

(a) the first annual report after the date of a decision of the Governor in Council under section 15 or subsection 20(5); and

(b) the first annual report after the issuance, under section 24 of the Nuclear Safety and Control Act, of a construction or operating licence for an activity to implement the approach that the Governor in Council selects under section 15 or approves under subsection 20(5).

Marginal note:Grounds for refusing to approve

(4) If the Minister

(a) is not satisfied that the formula referred to in paragraph (2)(d) will provide sufficient funds to implement the approach that the Governor in Council selects under section 15 or approves under subsection 20(5), or

(b) is not satisfied that the amount of each deposit referred to in paragraph (2)(e) is consistent with the formula referred to in paragraph (2)(d),

the Minister shall refuse to give the approval referred to in subsection (3) and shall direct the waste management organization to revise the relevant portions of the annual report and submit the revised annual report to the Minister within 30 days.

Marginal note:Obligation to deposit

17. (1) Each nuclear energy corporation and Atomic Energy of Canada Limited shall, either directly or through a third party, deposit to its trust fund maintained under subsection 9(1) its respective deposit specified in the annual report

(a) if the Minister’s approval under subsection 16(3) is not required, within 30 days after the annual report is submitted to the Minister under subsection 16(1); or

(b) if the Minister’s approval under subsection 16(3) is required, within 30 days after the date of that approval.

Marginal note:Extension of time

(2) Notwithstanding subsection (1), the Governor in Council may, on request by a nuclear energy corporation made before the expiration of the 30 day period referred to in that subsection, authorize the nuclear energy corporation to defer by one year all or part of its deposit required by that subsection, if the Governor in Council is of the opinion that the public interest requires that that money be used instead to repair the damage caused by an event that is not attributable to the corporation and is extraordinary, unforeseen and irresistible.

Marginal note:Triennial report

18. The annual report of the waste management organization for its third fiscal year after the fiscal year in which a decision is made by the Governor in Council under section 15, and for every third fiscal year after that, in this Act called the “triennial report”, must include

(a) a summary of its activities respecting the management of nuclear fuel waste during the last three fiscal years, including an analysis of any significant socio-economic effects of those activities on a community’s way of life or on its social, cultural or economic aspirations;

(b) its strategic plan for the next five fiscal years to implement the approach that the Governor in Council selects under section 15 or approves under subsection 20(5);

(c) its budget forecast for the next five fiscal years to implement the strategic plan;

(d) the results of its public consultations held during the last three fiscal years with respect to the matters set out in paragraphs (a) and (b); and

(e) the comments of the Advisory Council on the matters referred to in paragraphs (a) to (d).

Marginal note:Minister’s statement

19. The Minister shall, within 90 days after receiving a report, issue a public statement regarding the report.

Marginal note:Tabling of reports in Parliament

19.1 The Minister shall cause a copy of each report to be laid before each House of Parliament within the first fifteen sitting days of that House after the Minister has received the report.



CHANGE IN APPROACH

Marginal note:New approach — technical difficulty

20. (1) If the waste management organization is unable, for technical reasons beyond its control, to implement the approach that was selected by the Governor in Council under section 15, the waste management organization shall so report in its triennial report and shall, in that report, propose a new approach.

Marginal note:New approach — technical innovation

(2) If a new technological method is developed that has been the subject of a scientific and technical review by experts from international governmental organizations that deal with nuclear matters and has received their support, the waste management organization may propose, in its triennial report, a new approach for the management of nuclear fuel waste that is based on that new method.

Marginal note:Application of other provisions

(3) Subsections 12(3) to (7) and sections 13 and 14 apply, with such modifications as the circumstances require, in respect of an approach proposed under subsection (1) or (2). The approach must be accompanied by the comments of the Advisory Council on that approach.

Marginal note:Submission to Governor in Council

(4) If the Minister is satisfied that the new approach referred to in subsection (1) or (2) is technically and economically feasible in Canada, the Minister shall submit the new approach to the Governor in Council.

Marginal note:Decision of Governor in Council

(5) The Governor in Council may, on the recommendation of the Minister, approve an approach proposed under subsection (1) or (2), in which case the decision of the Governor in Council shall be published in the Canada Gazette.

WITHDRAWAL BY BENEFICIARY

Marginal note:Withdrawals from trust funds

21. Notwithstanding subsection 11(1), the Governor in Council may, on the recommendation of the Minister, authorize a beneficiary of a trust fund to withdraw all or part of the balance in the trust fund if

(a) the Governor in Council has approved an approach under subsection 20(5) and the total balance in the trust funds exceeds the estimated total cost of implementing that approach; or

(b) the waste management organization has completed the implementation of an approach that the Governor in Council selected under section 15 or approved under subsection 20(5).

RECORDS, BOOKS AND FINANCIAL STATEMENTS

Marginal note:Records and books to be kept

22. (1) The waste management organization, every nuclear energy corporation and Atomic Energy of Canada Limited, as well as every financial institution that holds a trust fund, shall keep, at its place of business in Canada, records, books of account and other documents for at least six years after the end of the fiscal year to which they relate, in such form and containing such information as will enable the verification of the accuracy and completeness of the information that is required to be submitted or provided to the Minister under this Act.

Marginal note:False entries, omissions

(2) No person shall make a false entry, or fail to make an entry, in a record, book of account or other document required to be kept under subsection (1).

Marginal note:WMO financial statements

23. (1) The waste management organization shall provide the Minister, within three months after the end of each fiscal year of the organization, with financial statements audited at its own expense by an independent auditor.

Marginal note:Trust fund financial statements

(2) Every financial institution that holds a trust fund shall provide the Minister and the waste management organization, within three months after the end of each fiscal year of the trust fund, with financial statements relating to that trust fund, audited at its own expense by an independent auditor.

DOCUMENTS TO BE MADE PUBLIC

Marginal note:Documents to be made public

24. The waste management organization shall make available to the public

(a) the study, reports and financial statements that it is required to submit to the Minister under this Act, simultaneously with submitting them to the Minister; and

(b) financial statements provided to the waste management organization under subsection 23(2), as soon as practicable.

INSPECTION OF RECORDS AND BOOKS

Marginal note:Auditors

25. (1) The Minister may designate as an auditor for the purposes of this Act any person that the Minister considers to be qualified.

Marginal note:Powers of auditors

(2) For the purpose of ensuring compliance with this Act, an auditor may, during normal business hours,

(a) enter any premises of a body referred to in subsection 22(1), after having given reasonable advance notice to the person in charge of the premises; and

(b) inspect, make copies of, and take extracts from, any records, books of account and other documents that the auditor believes on reasonable grounds are required by subsection 22(1) to be kept.

Marginal note:Designation to be produced

(3) An auditor shall, if so requested either before or after entering any premises under this section, produce to the person in charge of the premises evidence of the auditor’s designation by the Minister.

Marginal note:Duty to assist auditor

26. (1) Every person shall give all reasonable assistance to an auditor.

Marginal note:Prohibitions

(2) No person shall obstruct or hinder an auditor, or make a false or misleading statement, either orally or in writing, or provide false or misleading information, to an auditor.

OFFENCES AND PUNISHMENT

Marginal note:Failure to deposit amounts

27. (1) If a nuclear energy corporation or Atomic Energy of Canada Limited fails to comply with subsection 10(5) or section 17, it is guilty of an offence and liable on summary conviction to a fine not exceeding $300,000 for each day on which the offence is committed or is continued.

Marginal note:Court order

(2) If a body is convicted under subsection (1), the court may, in addition to any punishment imposed under that subsection, order the body to deposit to its trust fund, on or before the date fixed by the court, the amount that it failed to deposit as required, plus interest on that amount at the prime rate plus two per cent calculated from the day on which the amount was required to have been deposited.

Marginal note:Failure to comply with court order

(3) If a body fails to comply with an order made under subsection (2), it is guilty of an offence punishable on summary conviction and liable to a fine equal to twenty per cent of the aggregate amount set out in that order.

Marginal note:Failure to submit study

28. (1) If the waste management organization fails to submit the study of its proposed approaches within the period set out in subsection 12(1), it is guilty of an offence and liable on summary conviction to a fine not exceeding $300,000 for each day on which the offence is committed or is continued.

Marginal note:Failure to submit revised study, annual report

(2) If the waste management organization fails to comply with a direction of the Minister made under subsection 14(2), or fails to submit the report of its activities within the period set out in subsection 16(1), it is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000 for each day on which the offence is committed or is continued.

Marginal note:Failure to submit revised annual report

(3) If the waste management organization fails to comply with a direction of the Minister made under subsection 16(4), it is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000 for each day on which the offence is committed or is continued.

Marginal note:Withdrawals, making documents public

(4) If the waste management organization withdraws moneys from a trust fund without the Minister’s approval where that approval is required under subsection 11(4), or fails to comply with section 24, it is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

Marginal note:Auditors

(5) Every person who contravenes section 26 is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

Marginal note:Other offences

(6) Every person who contravenes any other provision of this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.

Marginal note:Offence by employee or agent

29. In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence.

Marginal note:Due diligence

30. No person shall be found guilty of an offence under this Act if it is established that the person exercised all due diligence to comply with this Act or to prevent the commission of the offence.

Marginal note:Time limit for prosecution

31. Proceedings in respect of an offence under this Act may be instituted within but not later than two years after the time when the subject matter of the proceedings arose or the Minister became aware of the subject matter of the proceedings.

COMING INTO FORCE

Marginal note:Coming into force

32. This Act comes into force on a day to be fixed by order of the Governor in Council.