Submissions of Lake Ontario Waterkeeper to the

Canadian Nuclear Safety Commission

Re: Relicensing hearing for the Darlington Nuclear Generating Station

and

Notice of Public Hearing, Ref. 2015-H-04

September 28, 2015 Submitted to Adam Levine via email: Adam.Levine@cnsc-ccsn.gc.ca Cc: interventions@cnsc-ccsn.gc.ca and pfp@cnsc-ccsn.gc.ca

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EXECUTIVE SUMMARY Ontario Power Generation (“OPG”) is seeking a 13-year licence that will allow it to operate and refurbish the Darlington Nuclear Generating Station in Clarington, Ontario (DNGS). The DNGS was built in the 1980s and is among the largest power plants in North America and within the top 25 globally. If the Canadian Nuclear Safety Commission (“the Commission”) approves OPG’s request for this 13-year licence, then the plant’s life will be extended until 2055. OPG formally notified the CNSC of its intention to refurbish the DNGS in 2011, and a screening level environmental assessment process began. The “screening” assessment was the lowest level of environmental assessment available under Canadian law at the time, offering the least scrutiny, public participation, and expert review. After the publication of the Draft Environmental Assessment Screening Report – Refurbishment and Continued Operation of the Darlington Nuclear Generating Station, Lake Ontario Waterkeeper (“Waterkeeper”) participated in the review process. Waterkeeper raised a number of concerns, most focusing on the impacts of Darlington’s cooling water system on the aquatic ecosystem. Based on its review of the draft, Waterkeeper submitted that a more rigorous environmental assessment process was warranted: a “review panel” under Canadian environmental assessment law. This recommendation was ignored, and only minor adjustments were made to the draft Environmental Assessment Screening Report before its release. Waterkeeper continues to have concerns about the DNGS’s current and future impact on Lake Ontario. Waterkeeper has carefully examined documents related to this licensing hearing, including the Environmental Assessment Screening Report, its supporting technical documents, and the documents relating to OPG’s Fisheries and Oceans Canada (“DFO”) authorization. After reviewing this information, it is apparent the current plan does not make adequate protection for the environment. The Commission cannot issue a 13-year licence unless deficiencies in the plan are addressed. Waterkeeper recommends that Commission licence the DNGS for not longer than one year. A one-year licence would give OPG sufficient time to: 1) determine how it

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will comply with its DFO authorization; 2) develop and implement programs to monitor impingement, entrainment and stormwater runoff; and 3) develop a plan for ensuring that water quality onsite and near-site consistently meets all water quality standards. Specifically, Waterkeeper is concerned by the following three (3) problems and offers the related six (6) necessary corrective measures: PROBLEM (a): The DNGS has failed to make adequate provisions to protect aquatic biota. This is apparent from:

● The large numbers of fish, fish eggs, fish larvae, invertebrates and plankton that the DNGS continues to impinge and entrain;

● The absence of a proper impingement and entrainment monitoring program that is required to predict future trends and understand the project's impact on endangered species;

● OPG’s failure to recognize and account for the fact that Lake Ontario’s ecosystems are in a state of flux;

● The DNGS’s history of non-compliance with the Fisheries Act; and, ● The inability of the DNGS to comply with its current DFO authorization.

→ CORRECTIVE MEASURE (a)(i): The Commission should require OPG to develop and implement a robust impingement and entrainment monitoring program for the DNGS. → CORRECTIVE MEASURE (a)(i i): The Commission should require OPG to immediately review available impingement and entrainment mitigation options and determine how it will comply with its current DFO authorization. PROBLEM (b): The DNGS has failed to make adequate provisions to minimize surface water pollution.

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This is apparent from:

● The DNGS’s history of stormwater pollution. Existing stormwater data indicates that stormwater running off the DNGS site routinely exceeds Provincial Water Quality Objectives (PWQOs), and stormwater samples failed acute lethality testing in 1996 and 2001;

● The absence of a regular stormwater monitoring program; ● Contaminant concentrations in onsite and near site water bodies that regularly

exceed PWQOs. → CORRECTIVE MEASURE (b)(i): The Commission should require OPG to develop and implement a regular stormwater monitoring regime. → CORRECTIVE MEASURE (b)(i i): The Commission should require OPG to take corrective actions to ensure that onsite and near site water bodies meet PWQOs. PROBLEM (c): Flaws in the Environmental Assessment Screening Report have deprived the Commission of the information necessary to assess whether the DNGS has taken adequate measures to protect the environment. → CORRECTIVE MEASURE (c)(i): The Commission should not allow refurbishment of the DNGS to begin until the flaws in the Environmental Assessment Screening Report are addressed. → CORRECTIVE MEASURE (c)(i i): If the CNSC does issues OPG a general operating licence, it should be for no more than one year, and it should incorporate the recommendations outlined above. These problems and corrective measures were identified with the assistance of two experienced advisors who assisted Waterkeeper in considering the plant’s impact on local aquatic biota and surface water quality:

● Dr. Richard Seaby of Pisces Conservation is a fisheries biologist with a doctorate in freshwater ecology from the University of Liverpool. He is a

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specialist in aquatic ecology and much of his recent work has involved examining the effects of industrial plants on aquatic ecosystems.

● Kevin Draganchuk of Carpenter Environmental Associates is an Environmental

Engineer whose areas of expertise include designing stormwater treatment and management systems, stormwater permitting, designing site remediations and analyzing the operation and design of sanitary sewer systems. He is a registered Professional Engineer in New York State.

This submission also draws upon relevant findings in expert reports that Waterkeeper commissioned for previous hearings before the CNSC concerning the proposed refurbishment of the DNGS and the proposal to build new reactors at the DNGS. These additional reports were authored by:

● Dr. Peter Henderson of Pisces Conservation, an experienced fisheries biologist and a leading expert on cooling water intake structures.

● Bill Powers, a pollution control engineer with considerable experience in the

design and evaluation of cooling towers for the power industry. He has provided engineering testimony in numerous regulatory proceedings, drafted portions of policy notes related to cooling towers for the Edison Power Research Institute, a leading energy-industry body, and advised on the feasibility of cooling tower retrofits at a large number of existing industrial facilities;

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TABLE OF CONTENTS EXECUTIVE SUMMARY……………………………………………………………….. 2

BACKGROUND………………………………………………………………………….. 10

Lake Ontario Waterkeeper is a charity participating in this process in the public interest…………………………………………………………………... 10 Lake Ontario is an irreplaceable source of life, beauty and recreation…... 11

Lake Ontario has a changing, severely stressed ecosystem………………. 11 Durham Region is changing………………………………………………………. 13

The DNGS’s continues to kill fish and degrade water quality……………... 15 DISCUSSIONS…………………………………………………………………………... 16

Does the DNGS make adequate provisions for the protection of the Environment?.................................................................................................... 16

a. The DNGS, as it currently operates, does not make adequate provisions for the protection of the environment……………….... ……... 16

a.1. The DNGS has not made adequate provisions to protect aquatic biota…………………………..………………………………........... 17

a.1.1. The DNGS kills large numbers of fish, invertebrates and plankton………………………………………………………………….... 17

a.1.1.1. Impingement………………………………………………… 17 a.1.1.2. Entrainment…………………………………………………. 19

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a.1.2. Old impingement and entrainment data may not be predictive of future trends………………………………………………. 20 a.1.3. The DNGS has a history of non-compliance with the Fisheries Act……………………………………………………………… 22 a.1.4. The Commission is obliged to consider the impact that relicensing the DNGS will have on fish populations and whether the plant will comply with the Fisheries Act………………… 24 a.1.5. The DNGS will exceed the terms of its DFO authorization…... 26

a.1.5.1.The plant will kill more than 2,200 kilograms of Age+1 per year………………………………..……………………… 26 a.1.5.2. The plant may kill species of conservation concern……. 29

a.2. The timelines for future impingement and entrainment studies are not acceptable………………………………………………………….... 30

a.2.1. The current monitoring plan will make it impossible to know whether the DNGS complies with the Fisheries Act or SARA………. 31 a.2.2. The current monitoring plan will deprive the Commission of a complete record in future relicensing hearings…………………. 31 a.2.3. The current monitoring plan will deprive the public of information it is entitled to be provided with…………………………. 32

b. The DNGS has not made adequate provisions to minimize surface water pollution………………………………………………………… 33

b.1 Stormwater from the DNGS runs directly into Lake Ontario……….. 33

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b.2 Stormwater from the DNGS fails to comply with federal law or provincial standards…………………………………………………………. 34 b.3 Stormwater runoff from the DNGS is not regularly monitored……... 36 b.4 Contaminant concentrations in onsite and near site waterbodies exceed Provincial Water Quality Objectives………………………………. 36

What terms and conditions, if any, would be required to ensure adequate provisions for the protection of the environment?....................... 37

The following licensing conditions would help to minimize the plant’s impact on the environment (both necessary and feasible)........ 37

a(i) The Commission should require OPG to develop and implement a robust impingement and entrainment monitoring program for the DNGS………………………………………………………. 37 a(ii) The Commission should require OPG to immediately review available impingement and entrainment mitigation options and determine how it will comply with its current DFO authorization………. 38 b(i) The Commission should require OPG to develop and implement a regular stormwater monitoring regime…………………………………... 39 b(ii) The Commission should require OPG to take corrective actions to ensure that onsite and near site water bodies meet PWQOs……...... 40

Are there any other issues with this project?................................................ 40

c. The Environmental Assessment Screening Report is not sufficient to prove the project makes adequate provision for the protection of the environment……………………………………………….. 40

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c.1. The Environmental Assessment Screening Report failed to properly consider closed cycle cooling - the only technology that would allow the DNGS to drastically reduce fish kills, thermal discharge and biocide release……………………………………. 41 c.2. The Environmental Assessment Screening Report’s methodology for assessing the CCW system’s impact on aquatic biota was flawed……………………………………………………. 42

d. The CNSC has not released the results of the DNGS accident study conducted by the CNSC staff……………………………... 44

e. DNGS has not developed a proper off site emergency plan………… 44

CONCLUSION…………………………………………………………………………… 44

LIST OF APPENDICES…………………………………………………………………. 46

WORKS CITED…………………………………………………………………………... 47

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BACKGROUND

Lake Ontario Waterkeeper is a charity participating in this process in the public interest. Lake Ontario Waterkeeper (“Waterkeeper”) is a grassroots environmental organization that uses research, education, and legal tools to protect and restore the public’s right to swim, drink, and fish in Lake Ontario. Founded in 2001, Waterkeeper is a non-political registered charity focusing on research and justice issues in the public interest. Waterkeeper is responsible for protecting and celebrating the Lake Ontario watershed, including the wetlands, streams, rivers, and creeks that flow into the lake. Waterkeeper

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conducts academic, legal, and field research, and shares the findings with the public. Waterkeeper works with communities to facilitate the use of environmental laws to protect their rights to swim, drink, and fish. Waterkeeper participates in legal processes to help ensure that environmental decisions are made on the basis of sound and tested scientific evidence by independent decision-makers and in the public interest. We are participating in the Darlington Nuclear Generating Station (DNGS) relicensing hearing to ensure the Commission considers the public’s need for a swimmable, drinkable, fishable Lake Ontario when rendering its decision. Lake Ontario is an irreplaceable source of life, beauty and recreation. Despite centuries of upheaval, the Lake Ontario watershed continues to support a diverse range of animal and plant species. Lake Ontario’s archipelagos, beaches, bays, tributaries, islands and wetlands provide countless opportunities for swimming, canoeing, fishing, nature observation and other forms of recreation. For many in the province, Lake Ontario is the closest, most familiar, waterbody. Lake Ontario also provides essential ecosystems services to millions of people. Currently, around 9-million Americans and Canadians depend on Lake Ontario for drinking water, and this number is expected to grow steadily into the future. Further, as the population in Southern Ontario continues to increase, and as communities along Lake Ontario’s shoreline continue to urbanize, the Lake’s value as a public recreational place will only become more significant. As such, the health of Lake Ontario will remain essential to the ongoing health and prosperity of Ontario and the entire Great Lakes region. Lake Ontario has a changing, severely stressed ecosystem.

The Commission must consider the fragility of Lake Ontario’s ecosystem when making its decision. The degraded state of the environment in Lake Ontario makes it more important to protect and restore the lake. Greater caution is required when assessing the continued impact of fish mortality and pollution on this stressed ecosystem.

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Lake Ontario is Severely Stressed

The lake is threatened by a number of stressors, most linked to a failure to respect and nurture it as a finite and essential resource. Historic and ongoing abuse and pollution of this ecosystem have drastically altered nutrient dynamics, hydrological rhythms, coastal habitats, water quality, and biological diversity. Many of these changes have occurred rapidly, and the lake continues to respond to these changes in unpredictable ways. In the report on the Darlington New Nuclear Power Plant Environmental Impact Statement, Dr. Peter Henderson stated, “The Great Lakes are in the midst of a huge ecological upheaval”.1 He points to the increasing populations of invasive species,

1 P. A. Henderson, “Comments on aquatic issues relating to the proposed New Nuclear Darlington (NND)

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including zebra mussels, quagga mussels, sea lamprey, and alewife. He noted the contemporaneous decline in native populations of fish, like the slimy sculpin, and of amphipod crustaceans, like Diporeia. Diporeia once generated more than 80% of total benthic production of Lake Ontario and was a critical component of the diets of most benthic fishes. It’s decline has very significant impacts on the stability of the Lake’s food web. Further, as the lake’s water clarity changes, there is increased plant growth, including beds of Cladophora (or green algae) along the shore by the Darlington site. Lake Ontario’s ecological instability means that predictions about the DNGS’s future impact must be treated with caution. In the report he prepared for the Darlington Refurbishment Environmental Assessment process, Dr. Henderson noted that climate change models have predicted that by 2041-2070 the maximum water temperature could be 2.5°C above the 1970-2000 norm.2 His report also noted that entrainment and impingement numbers at the DNGS have varied greatly over time.3 This information indicates that neither the Lake Ontario ecosystem, nor the DNGS’s impact on it, can be treated as static. Durham Region is changing. Durham Region will not look the same 13 years from now, let alone 40. Ontario’s Growth plan for the Golden Horseshoe identifies Oshawa as an urban growth center and the area surrounding the DNGS as a ‘Golden Horseshoe Growth Plan Area’.4 According to the Ontario government’s growth forecasts, there will be an additional 350,000 people living in Durham region by 2031.5 As the areas around Darlington urbanize, Lake Ontario’s role will change. More people will come to depend on the shoreline near the DNGS as a source of recreation and natural beauty. Darlington Provincial Park will be one of the largest green spaces in the 2 P. A. Henderson, “Comments on Environmental Studies Relation to the Darlington Nuclear Generating Station Refurbishment and Continued Operation Project”, prepared for Lake Ontario Ontario Waterkeeper with reference to the Darlington Nuclear refurbishment EA process, (July 2012) [hereinafter “Henderson, 2012] at 10. 3 Henderson, 2012 at 6, 8. 4 Ontario Ministry of Infrastructure, “Growth Plan for the Greater Golden Horseshoe, 2006”, (June 2013, Office Consolidation) [hereinafter “Ontario Growth Plan”] at 61. 5 Ontario Growth Plan at 63.

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area, and one of the best swimming spots in the summer. The lake will also provide drinking water to all of Durham’s new inhabitants. The revitalization of Toronto’s waterfront over the past two decades should serve as a reminder that a community's connection to the lake can change quickly. As Durham grows, the importance of Lake Ontario to the community will grow as well.

Ontario’s growth forecasts indicate the area surrounding the DNGS will continue to grow in the coming decades.

Growth in the Durham region will place further stress on the lake. Sewage and stormwater runoff are two of the most common sources of water pollution in Canada.

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As the population of Durham grows, the quantity of stormwater and sewage released into Lake Ontario will increase. In Ajax, water quality has already been degraded by massive summer blooms of Cladophora (a type of algae), which may be linked to phosphorus in effluent from the Duffin Creek wastewater treatment plant.6 The algae is a significant ecological problem, and already impedes the public’s enjoyment of the Lakeshore in this area. Paradoxically, growth will mean not only increased stress on the Lake, but also increased dependence on a swimmable, drinkable, fishable Lake Ontario. The Commission must take this into account when examining the impact of the DNGS on the lake. The DNGS continues to kill fish and degrade water quality. The DNGS continues to use once-through cooling technology, despite the fact that it has been demonstrated to be most detrimental to aquatic ecosystems. The DNGS Condenser Cooling Water (CCW) system has a maximum flow rate of 155 cubic meters of water per second7. This is the equivalent of one Olympic-size swimming pool every 15 seconds. After passing through the reactors this water is returned directly to Lake Ontario. This process results in the entrainment and impingement of fish and the release of biocides and other contaminants into the lake. The water discharged into Lake Ontario is a source of thermal pollution with the potential to degrade surrounding fish habitat. Thermal plumes from the DNGS have been linked to lower survival rates in round whitefish embryos. Stormwater from the DNGS is released directly into Lake Ontario. Although stormwater is not sampled regularly, some samples taken in 1996 and 2001 failed acute lethality testing.8 Samples taken in 2010 revealed contaminant concentrations exceeding

6 see: Town of Ajax, “Duffin Creek Water Pollution Control Plant Outfall Environmental Assessment - Part II Order Request”, (10 February, 2014). 7 Canadian Nuclear Safety Commission and Fisheries and Oceans Canada, “Final Environmental Assessment Screening Report: The Refurbishment and Continued Operation of the Darlington Nuclear Generating Station, Municipality of Clarington, Ontario”, (March 2013) [hereinafter “CNSC and DFO EA Report”] at 19. 8 CNSC and DFO EA Report at 42.

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Ontario’s Provincial Water Quality Objectives (PWQOs).9 Sampling in 2010 also revealed that onsite and near site waterbodies are exceeding some PWQOs on a regular basis.10 PWQOs are target concentrations set by the Ontario government aimed at protecting human and aquatic life. Although PWQOs are not legal guidelines per se, the Ontario government has acknowledged that “meeting PWQOs is a minimum requirement” for ensuring that “the surface waters of the province are of a quality which is satisfactory for aquatic life and recreation”.11 DISCUSSIONS Does the DNGS make adequate provisions for the protection of the Environment? Section 24(4)(b) of the Nuclear Safety and Control Act is explicit that the Commission shall not relicence a facility unless it “make[s] adequate provision for the protection of the environment”. OPG bears the onus of demonstrating that the DNGS adequately protects the environment. If the Commission does not have sufficient information to conclude that this is the case, or if the information before the Commission does not lead to this conclusion, the Commission cannot relicence the DNGS.

a. The DNGS, as it currently operates, does not make adequate provisions for the protection of the environment.

The DNGS has not made adequate provisions to protect aquatic biota or to minimize surface water pollution. Therefore, the DNGS is unable to satisfy section 24(4)(b) of the Nuclear Safety and Control Act.

9 CNSC and DFO EA Report at 41. 10 Golder Associates, “Surface Water Environment Technical Support Document Darlington Nuclear Generating Station Refurbishment and Continued Operation Environmental Assessment”, (December 2011) [hereinafter “Surface Water TSD”] at 56. 11 Ontario Ministry of Environment and Climate Change, “Provincial Water Quality Objectives of the Ministry of Environment and Energy”, (July, 1994) at 3.1.

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a.1. The DNGS has not made adequate provisions to protect aquatic biota.

The DNGS’s failure to make adequate provisions to protect aquatic biota is apparent from the impingement and entrainment data, the plant’s history of non-compliance with the Fisheries Act, the inadequacy of the current DFO authorization, the continued threat posed to species of conservation concern, and the lack of robust monitoring requirements.

a.1.1. The DNGS kills large numbers of fish, invertebrates and plankton.

a.1.1.1. Impingement. The DNGS’s once-through cooling system kills large numbers of fish, fish larvae and fish eggs each year. While the porous veneer intake system may help reduce impingement and entrainment rates, the available data shows that impingement and entrainment rates are significant. Existing impingement data suggests that impingement rates have increased at the DNGS over the last decade. In the report he prepared for the Darlington Refurbishment Environmental Assessment process, Dr. Henderson concluded that the “most recent data indicate that fish are becoming impinged in high numbers and biomass”.12 In 2006/07 the weight of fish impinged was estimated to be no more than 893 kg, whereas by 2010/2011 this number had increased to over 2300 kg, representing the fate of an estimated 274,931 individual fish.13 The increase in impingement rates is likely due to an increase in round goby and alewife abundance in the area surrounding the plant. The increase may also be due in part to new screens that were installed in 2010/11. According to Dr. Henderson’s report, the new screens may be better at washing impinged fish to the sampling point,

12 Henderson, 2012 at 8. 13 Ontario Power Generation, “Submission to DFO for an Authorization under the Fisheries Act for the Darlington Nuclear Generating Facility”, (21 August, 2014) [hereinafter “OPG’s Submission to DFO”] at 32.

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thereby increasing the accuracy of impingement data.14 If this is part of the reason for the reported increase in impingement rates it would mean that previous data were underestimating the impact of the DNGS. The high numbers of alewife and round goby impinged by the DNGS cannot be dismissed simply because the species are non-native. In its submission to the DFO for a section 35 authorization, OPG went so far as to claim that the “ongoing removal of goby biomass through impingement should be regarded as positive”.15 This mindset indicates OPG’s unacceptable failure to recognize that Lake Ontario is in a state of ecological upheaval. While the presence of goby and alewife in Lake Ontario may be detrimental to some native species, they have become a part of Lake Ontario’s ecology. To ignore these species would be unwise because, as Dr. Henderson has noted, in the future ‘an ecosystem dependent on round goby and alewife as prey for large predatory species is quite likely’.16 The fact that Lake Ontario is changing does not mean it is in less need of protection. Rather, minimizing disturbance will be essential to allowing the ecosystem to stabilize. Impingement data indicates that the number of species being impinged has also increased over the past decade. Sampling in 2006/07 indicated that 8 different species were impinged. In 2010/11 the impingement study identified 15 different species and reported an additional 712 fish that were too decayed to identify.17 Although round goby and alewife constituted over 90% of the species impinged during the 2010/11 study, the fact remains that the plant continues to kill a relatively diverse range of native and non-native species.18

14 Henderson, 2012 at 7. 15 OPG’s Submission to DFO at 48. 16 Henderson, 2012 at 12. 17 SENES Consultants Limited, “Aquatic Environment Technical Support Document Darlington Nuclear Generating Station Refurbishment and Continued Operation Environmental Assessment”, (December 2011) [hereinafter “Aquatic Environment TSD”] at 3-16. 18 Aquatic Environment TSD, at 4-18.

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a.1.1.2. Entrainment. The most recent entrainment data available for the DNGS is almost 10 years old. These data come from a 2006 study, which estimated that 605,059 eggs and 6,996,246 larvae were entrained.19 A previous 2004 study estimated that 15,631,833 fish eggs and 1,201,943 fish larvae were entrained.20 These studies assessed the Equivalent Adult (Age) Value (EAV) of the entrainment losses to be 1,318 and 11,548 Age-1 fish for 2004 and 2006 respectively.21 EAV is a mathematically-derived value that measures the reproductive importance of individual fish, eggs and larvae by providing a unit (Age-1) that is standardized across life-stages (i.e. eggs and larvae have a low Age-1 value, since very few will survive until adulthood to reproduce, while reproductively mature adults will have a high Age-1 value). The limited entrainment data indicate that entrainment rates at the DNGS may be increasing. Between 2004 and 2006 the EAV values increased by roughly 875%.22 As with the impingement data, this may be largely due to the increased abundance of round goby. The variability in the existing entrainment data, along with the absence of any recent sampling, makes it difficult to comment on current entrainment rates but Dr. Henderson’s report noted that entrainment rates may increase in the future.23 It is important to note that neither the raw entrainment data or equivalent adult age values fully describe the impact that entrainment has on the surrounding aquatic ecosystem. The CCW sucks in immense numbers of planktonic plants and invertebrates along with fish eggs and larvae. Although survival rates have not been studied at the DNGS, Dr. Henderson’s report indicates that survival rates for invertebrates can range between 18 and 66 percent.24 By killing hundreds of thousands of invertebrates, which have an ecologically significant position in the food web, the CCW systems takes an additional toll on the surrounding ecosystem.

19 CNSC and DFO EA Report at 89. 20 CNSC and DFO EA Report at 89. 21 CNSC and DFO EA Report at 89. 22 This number was produced using the EAV values found on pg 89 of the CNSC and DFO EA report (11548/1318 = 8.76*100=875%) 23 Henderson, 2012 at 10. 24 Henderson, 2012 at 9.

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The available data suggests that impingement and entrainment rates at the DNGS are increasing.

Dr. Henderson’s report also cautions that the equivalent adult age values should be treated with caution since they are based on various assumptions that may not hold true for the ecosystem surrounding the DNGS.25 A final problem with these values is that they fail to account for the fact that fish eggs and larvae are an important component of Lake Ontario’s already stressed and unstable local food web.26

a.1.2. Old impingement and entrainment data may not be predictive of future trends.

During Day One of the current relicensing hearing on August 19th, 2015, OPG was asked by Commission Member Harvey whether there could be any change in lake conditions that might alter impingement or entrainment rates. OPG stated that they

25 Henderson, 2012 at 9. 26 Henderson, 2010 at 8.

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“are not anticipating changes”.27 This conclusion is simply not supported by the entrainment and impingement data, which shows dramatic variance in impingement and entrainment rates over the past decade. As mentioned above, between 2004 and 2006, the EAV for loss due to entrainment increased by roughly 875%. The estimated biomass of fish impinged increased by over 200% between sampling conducted in 2006/07 and 2010/11. Given these well documented increases in impingement and entrainment rates, it is highly problematic that OPG does not anticipate future changes. These indications that impingement and entrainment rates are increasing cannot be ignored. At the same time, given Lake Ontario’s ecological instability, and the limited availability of entrainment and impingement data, it is difficult to predict future trends with any degree of certainty. Lake Ontario is a severely stressed ecosystem in the midst of ecological upheaval. The introduction and proliferation of invasive species (which could potentially include asian carp), climatic warming, eutrophication and pollution will all continue to alter Lake Ontario’s ecosystems during the refurbishment period. In addition, growth in Durham region also has the potential to significantly increase local stresses on the lake. There are also positive changes occurring within Lake Ontario; concentrations of some contaminants are decreasing, and there are initiatives underway to reintroduce extirpated species. One example is the Lake Ontario Atlantic Salmon Restoration project, which OPG has played an important role in supporting. To date, this initiative has been responsible for the release of 2.5 million salmon into three target tributaries, one of which is within 30 kilometers of the DNGS.28 A second example of a major restoration effort is Ontario’s proposed American eel recovery strategy. The strategy aims to restore eel access to all immediate tributaries on Lake Ontario, increase eel habitat by 10% every five years and achieve a 50% reduction in cumulative mortality rates by 2050.29 These two initiatives alone have the potential to bring about significant 27 Canadian Nuclear Safety Commission, “Transcript: Public Hearing on August 19 2015”, [hereinafter “the transcript”] at 267. 28 Bring Back the Salmon, “Lake Ontario Atlantic Salmon Restoration Program”, viewed on 24 September, 2015 at: http://www.bringbackthesalmon.ca/?page_id=12 29 MacGregor et al., “Recovery Strategy for the American Eel (Anguilla rostrata) in Ontario”, Ontario Recovery Strategy Series. Prepared for Ontario Ministry of Natural Resources, Peterborough, Ontario, (2013) at v.

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changes in the aquatic ecosystems surrounding the DNGS. These initiatives also mean that the ecological impacts of the DNGS could change drastically over the course of the proposed 13-year licence period.

Atlantic salmon and American eel are two species that could become more abundant around the DNGS due to restoration initiatives. In sum, there are numerous changes, both challenging and beneficial, taking place in Lake Ontario. What is clear is that predictions about future lake conditions must be treated cautiously, especially when data are limited. This is consistent with the precautionary principle which has been developed over decades in Canadian environmental law. Further, it is of utmost importance that the Commission properly consider certain data trends that may be inconsistent with OPG’s assertion that changes in impingement and entrainment rates will not change.

a.1.3. The DNGS has a history of non-compliance with the Fisheries Act. The DNGS’s CCW system has operated in violation of the Fisheries Act for over two decades. When Unit 2 of the Darlington plant was brought online in 1990, sections 32 and 35 of the Fisheries Act read:

32. (1) No person shall destroy fish by any means other than fishing except as authorized by the Minister or under regulations made by the Governor in Council under this Act. 35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

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(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

The DNGS has used the same CCW system since it began operating. Throughout the 1990s and 2000s the CCW system killed thousands of fish each year. It also released contaminants and created thermal plumes which may have altered or destroyed fish habitat. During this time the DNGS did not have authorization from the minister to kill fish or to disrupt or destroy fish habitat. Nor were there any regulations exempting the DNGS from section 32 and 35 of the Act. It is concerning that the DNGS would illegally operate its CCW system for such an extended period of time. The scale and complexity of the DNGS would suggest that this conduct was not merely an oversight. In 2012 section 32 of the Fisheries Act was repealed and 35 was changed to read as follows:

(1) No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.30 (2) A person may carry on a work, undertaking or activity without contravening subsection (1) if

(a) the work, undertaking or activity is a prescribed work, undertaking or activity, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

(b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;

(c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or entity and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

(d) the harmful alteration or disruption, or the destruction, of fish habitat is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or

30 Note that the wording of section 32(1) was changed as of November 25th, 2013.

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(e) the work, undertaking or activity is carried on in accordance with the regulations.

Although the new wording of section 35 provided the DNGS with additional options for compliance, the plant continued to illegally degrade and destroy fish habitat for another three years. OPG did not apply for a section 35 authorization from DFO until August 21st, 2014 and the authorization was not granted until June 24th, 2015.

a.1.4. The Commission is obliged to consider the impact that relicensing the DNGS will have on fish populations and whether the plant will comply with the Fisheries Act.

During Day One of the relicensing hearing for this matter on August 19th, 2015, Mr. Richardson stated, on behalf of CNSC staff, that the DNGS’s section 35 DFO “authorization is not linked to this CNSC licence application and, therefore, it does not impact or impede the decision for this licence application”.31 This statement is problematic in at least two respects. First, this statement indicates that CNSC staff have failed to appreciate that the Commission must understand whether the DNGS complies with the Fisheries Act in order to meet its obligation under section 24(4)(b) of the Nuclear Safety and Control Act. Although the term ‘adequate’ is not defined in Nuclear Safety and Control Act it is inconceivable that parliament could have intended the standard demanded by section 24(4)(b) to fall anywhere below full regulatory compliance. Therefore, the questions of whether the DNGS has a section 35 authorization, and whether it will be able to comply with the terms of the authorization, are highly relevant to the relicensing decision. Second, this statement does not reflect the terms of the Memorandum of Understanding (MOU) between CNSC and DFO that was signed on December 16th, 2013. Section 3(a)(ii) of the MOU reads:

31 Transcript at 225.

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3. PURPOSE 3(a) The Parties will work together in the development of work plans and protocols to improve the efficiency and effectiveness of regulatory reviews of applications and decision-making related to the roles and responsibilities of each Party for:

(i) [.....] (ii) Ensuring that CNSC’s assessment of applications considers the intent and requirements of the Nuclear Safety and Control Act, the Fisheries Act, and the Species at Risk Act.

Section 4(c)(i) of the MOU reads:

4. WORK TO BE COORDINATED (a) [.....] (b) [.....] (c) THE CNSC agrees to: (i) Conduct reviews of licence applications for potential impacts to fish and fish habitats, to ensure that the assessment process considers the intent and requirements of the Fisheries Act, SARA, and their associated regulatory and policy frameworks;32

Section 3(a)(ii) and 4(c)(i) of the MOU make it very clear that in rendering its relicensing decision, the Commission must consider the requirements and intent of both the Fisheries Act and the Species at Risk Act (SARA). The clear wording of the MOU contradicts the CNSC staff’s position that the DFO authorization need not be considered during the relicensing process. The MOU requires the Commission to take a holistic approach when assessing the DNGS’s impact on fish populations and endangered species. By requiring the Commission to consider the intent of the Fisheries Act and SARA, the MOU makes it clear that the Commission’s obligation is more than a perfunctory check for regulatory compliance. The Commission must look beyond the technical requirements of these acts and ask whether there is a risk that the DNGS will frustrate the overarching goals of either act, namely protecting the 32 Canadian Nuclear Safety Commission and Fisheries and Oceans Canada, “Memorandum of Understanding Between Fisheries and Oceans Canada and Canadian Nuclear Safety Commission for Cooperation and Administration of the Fisheries Act and the Species at Risk Act Related to Regulating Nuclear Materials and Energy Development”, (16 December, 2013) s 3-4.

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health of Canada’s fish populations and protecting species of conservation concern from further harm.

a.1.5. The DNGS will exceed the terms of its DFO authorization. In light of the DNGS’s history of non-compliance, it is important that the Commission seriously consider whether the DNGS will be able to comply with the terms of its current section 35 DFO authorization. The authorization reads:

The serious harm to fish likely to result from the proposed work(s), undertaking(s), or activity(ies), and covered by this Authorization includes.

○ Death of fish: the impingement and entrainment of approximately 1,742 kilograms to 2,200 kilograms of Age+1 equivalent fish per year than do not include any aquatic species at risk listed under the Species at Risk Act.33

a.1.5.1. The plant will kill more than 2,200 kilograms of Age+1 per year.

It is important to recognize that 2,200 kg of Age+1 fish is a very different metric than 2200 kg of fish. As discussed above, Age-1 is a mathematically derived metric that attempts to standardize across life stages. Eggs, larvae and young fish have low Age-1 values, while older fish have higher Age-1 values. The available data indicates that the DNGS impinges and entrains well over 2,200 kg of Age+1 fish. According to OPG’s own calculations, the DNGS could be impinging and entraining approximately 21,537 kg of Age+1 equivalents of fish per year.34 As Dr. Seaby has noted, this number exceeds the current authorization by nearly 10 times.35

33 Fisheries and Oceans Canada, “Paragraph 35(2)(b) Fisheries Act Authorization”, issued: June 24, 2015, [hereinafter DFO authorization] s. 1. 34 OPG’s Submission to DFO at 55. 35 R. Seaby “Notes on the fishery issues relating to Darlington Nuclear Generating Facility relicensing (Ontario Power Generation (OPG))”, prepared for Lake Ontario Ontario Waterkeeper with reference to the DNGS relicensing process, (September, 2015) [hereinafter “Seaby, 2015”] at 6.

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In its “Submission to DFO for an Authorization under the Fisheries Act for the Darlington Nuclear Generating Facility” (“OPG’s submission to DFO”), OPG requested that it be permitted to ‘discount’ the contribution of round goby to impingement and entrainment biomass.36 OPG also indicated that the entrainment contribution of carp should be ‘reduced’ since OPG believed that there were problems with the methodology in its own entrainment studies.37 In OPG’s submission to DFO it estimates that after round goby is discounted and carp entrainment reduced, the plant impinges and entrains roughly 1,742 kg of Age+1 equivalents per year. The DFO authorization does not permit OPG to discount the contribution of round goby impingement and entrainment, nor does it comment on OPG’s conclusion about carp

36 OPG’s Submission to DFO at 48, 55. 37 OPG’s Submission to DFO at 45-48 ,55.

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entrainment. As such, the DNGS cannot be held to comply with the terms of its current DFO authorization.38 According to the DFO authorization:

“The failure to comply with any condition of this Authorization constitutes an offence under Paragraph 40(3)(a) of the Fisheries Act and may result in charges being laid under the Fisheries Act”.39

The Commission must not ignore the fact the DNGS has now operated its CCW system in violation of the Fisheries Act for over two decades. This pattern of chronic noncompliance indicates a failure of take adequate provisions to protect the environment. The DFO was correct to not allow the DNGS to discount the contribution of round goby biomass to impingement and entrainment numbers. As noted above, round goby’s status as an invasive species does not negate their potential to become an important component of the food web. Dr. Seaby has explained that although goby may be considered a ‘pest’ species, their removal represents a loss of biomass felt by the entire aquatic community, including ‘species of value’.40 OPG’s request that of carp entrainment estimates be reduced highlights the inadequacy of the current impingement and entrainment data. In its submission to the DFO, OPG noted that:

“The methodology used in the 2004 and 2006 studies (OPG 2006 and 2007) is considered standard practice but is a potential source of a great deal of uncertainty in estimates”.41

OPG cannot argue, on the one hand, that current data are sufficiently reliable to estimate the CCW system’s future impact on aquatic biota, but on the other, that the data are such a source of uncertainty that carp entrainment rates should be drastically reduced. Although OPG does point to other aquatic sampling in the area to support its

38 It should be noted that even if the contribution of carp entrainment is ‘reduced’ OPG will still exceed the current authorization by a large margin since goby entrainment alone represents 16,021 kg of Age+1 fish. 39 DFO authorization, at 7. 40 Seaby 2015 at 6. 41 OPG’s Submission to DFO, at 47.

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assertion that carp entrainment estimates in 2006 were high, it is obvious that uncertainty in the data can cut both ways. The solution is the development of robust sampling regime, not the selective examination of data points that OPG finds undesirable.

a.1.5.2. The plant may kill species of conservation concern. The EA screening report noted that four species of conservation concern have been recorded in the vicinity of the DNGS: deepwater sculpin, atlantic salmon, lake sturgeon and American eel. Dr. Seaby notes that it would ‘certainly be possible’ that the DNGS entrains or impinges young deepwater sculpin.42 A study in Lake Michigan found that some sculpin larvae came inshore in December before moving deeper in the water column.43 Sculpin larvae were reported at all depths from 15 meters downward, suggesting that the DNGS 10 meter intake has the potential to catch sculpin larvae in small numbers.44 In his report, Dr. Seaby notes that the DNGS currently impinges American eel and there is no reason to expect that this will stop in the future.45 The 2010/11 impingement study found that one American eel was impinged.46 It is important to recall that the 2010/11 annual impingement figures were derived by extrapolating the data from the impingement study, so the actual number of eels impinged during this time frame may have been higher. The fact that the American eel is not listed under SARA does not relieve the Commission from considering the impact of the CCW system on this species. The American eel has been designated as threatened by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and is listed as endangered under Ontario’s Endangered Species Act. Taking adequate provisions to protect the environment must

42 Seaby 2015 at 7. 43 Seaby 2015 at 7. 44 Seaby 2015 at 7. 45 Seaby 2015 at 7. 46 Aquatic Environment TSD, at 3-16.

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include protecting this species. It is not acceptable for the DNGS to continue impinging this imperiled species for the next four decades. Low impingement rates of American eel or deepwater sculpin could still translate into a significant ecological impact. Dr. Seaby comments in his report that because species of conservation concern are typically rare it is difficult to effectively sample for them or to observe a project’s impact on them.47 At risk species often have small populations and multiple stressors, meaning that chronic low level sources of mortality like the DNGS have the potential to impede recovery or contribute to further decline.

a.2. The timelines for future impingement and entrainment studies are not acceptable.

OPG’s proposal for future monitoring is to conduct 2 year impingement and entrainment studies once per decade.48 The DFO authorization indicates that entrainment monitoring will be conducted in 2015/16 and impingement monitoring will occur in 2024/25.49 The EA follow-up report does not impose any additional requirements.50 These timelines indicate that OPG will be allowed to follow its proposed once-per-decade monitoring approach. OPG’s 10 year monitoring timelines are inappropriate due to the highly dynamic nature of Lake Ontario’s ecosystems and the changing character of the local environment surrounding the DNGS site discussed in this submission above. The current monitoring plan will make it impossible to know whether the DNGS complies with the Fisheries Act or SARA. In addition, the once per decade monitoring will deprive the Commission of a complete factual record on this issue in future relicensing hearings. It will also deprive the public of important information concerning the quality and ecological integrity of Lake Ontario, their local waterbody.

47 Seaby, 2015 at 6. 48 OPG’s Submission to DFO, at 36. 49 DFO authorization, at 3.1.1.2, 3.1.1.3. 50 Ontario Power Generation, “Darlington Nuclear Refurbishment and Continued Operation Environmental Assessment Follow-Up Program”, (September 2013) at 11-12.

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a.2.1. The current monitoring plan will make it impossible to know whether the DNGS complies with the Fisheries Act or SARA.

Determining whether the DNGS complies with its current authorization will only be possible if OPG adopts a regular, robust monitoring regime. This is the only approach that will allow OPG to know if the CCW system is killing listed species or if it is exceeding the impingement and entrainment limits set in the authorization. Given that that the most recent data indicates that the DNGS greatly exceeds impingements and entrainment limits it is essential that there is monitoring data to show whether the DNGS is able to take measures to comply with the Fisheries Act. Dr. Seaby has noted that because of their scarcity, threatened species are difficult to sample.51 Without regular, long term monitoring, understanding a project's impact on species that are present in low densities is difficult. The DNGS s 35 authorization requires that OPG give DFO notice within 72 hours when a listed species is killed.52 Yet this requirement will be all but meaningless if OPG only studies impingement and entrainment rates once per decade. It is troubling that DFO would support such an unambitious monitoring plan. Dr. Seaby states in his report that Lake Ontario is ‘in a state of flux’.53 The existing impingement and entrainment data reveal that there have been major fluctuations over short periods of time. The data also raise concerns about whether OPG will be able to comply with its authorization. All of this indicates a pressing need for regular monitoring. If the Commission does not require the DNGS to adopt a suitable monitoring regime it will be very difficult for the Commission to know whether the DNGS complies with its s 35 authorization over the next decade.

a.2.2. The current monitoring plan will deprive the Commission of a complete record in future relicensing hearings.

Refurbishing the DNGS’s four reactors will allow the station to operate for another 40 years. Throughout this period the Commission will be responsible for relicensing the 51 Seaby, 2015 at 6. 52 DFO authorization, at 3.2.2. 53 Seaby, 2015 at 11.

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plant and ensuring that it makes adequate provisions to protect the environment. This submission has highlighted the essential importance that reliable information plays in allowing the Commission to understand whether there are adequate provisions in place to protect the environment. Unless the Commission requires OPG to change its monitoring plan, it will be forced to make future licensing decisions without a full understanding of the DNGS’s impact on species of conservation concern, or changes in impingement and entrainment rates.

a.2.3. The current monitoring plan will deprive the public of information it is entitled to be provided with.

The preamble of the proposed Great Lakes Protection Act (GLPA) states that “all Ontarians have an interest in the ecological health of the Great Lakes-St. Lawrence River Basin”.54 The GLPA recognizes that Ontarians care deeply about Lake Ontario. Ontario’s Environmental Bill of Rights acknowledges that Ontarians have the right to a healthful environment.55 Because of Lake Ontario’s position as a source of drinking water and recreation this right cannot be protected without protecting Lake Ontario. If Ontarians are not provided with information about the impact that the DNGS has on the surrounding environment they will not be able to assess whether it affects their right to a healthful environment, or whether they consider its impact on Lake Ontario to be acceptable. This information is particularly important for people living in the ever expanding communities near the DNGS, who may fish in Lake Ontario and rely on the health of its ecosystems for their future recreation. OPG is a public company, wholly owned by the Government of Ontario. OPG’s basic mandate is to provide the public with a service - the generation of electricity. How this electricity is produced, and where it will come from in the future, are public issues. For Ontarians to engage with these issues, they need to understand the costs associated with different forms of electricity production. The Darlington plant produces roughly

54 Bill 66, An Act to protect and restore the Great Lakes-St. Lawrence River Basin, 1st Sess, 41st Leg, Ontario, 2015 (passed 2nd reading 04 June 2105, currently before the Standing Committee on General Government). 55 Environmental Bill of Rights, 1993, SO 1993, C-28.

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20% of Ontario’s electricity - Ontarians are entitled to reliable, long term data about the impact that the DNGS has on Lake Ontario.

b. The DNGS has not made adequate provisions to minimize surface water pollution.

b.1 Stormwater from the DNGS runs directly into Lake Ontario.

According to the Surface Water Environment Technical Supporting Document (TSD), stormwater from the DNGS property is discharged directly into Lake Ontario. The Surface Water TSD notes that there are 12 sub-catchments on the property and an additional four that partially border the property.56 These sub-catchments lead to 16 outfalls that all send stormwater directly into Lake Ontario.57

Stormwater runoff from the DNGS is released directly into Lake Ontario 56 Surface Water TSD, at 35. 57 Surface Water TSD, at 35.

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b.2 Stormwater from the DNGS fails to comply with federal law or provincial standards.

Stormwater has not been sampled consistently at the DNGS, but the three studies that were conducted over the last two decades (in 1996, 2001/02 and 2010/11) raise a number of concerns. Sampling in 1996 showed that several discharge points were failing acute lethality tests for Daphnia magna and rainbow trout.58 A sample taken from one of the discharge points in 2001/02 also failed acute lethality testing for Daphnia magna.59 Stormwater passed acute toxicity tests in 2011, however no chronic lethality tests were performed.60 All three stormwater studies also detected a range of contaminants coming of the DNGS site. In 1996 and 2001 sampling detected petroleum hydrocarbons in runoff. Petroleum hydrocarbons were not detected in 2011, but toluene was found at a concentration that was nearly double the existing interim Provincial Water Quality Objective (PWQO).61 In 2001 concentrations of aluminum, iron, lead, copper, zinc, cadmium and total suspended solids all exceeded PWQOs during one or more sampling events.62 In 2010 over 10 different contaminants exceeded PWQOs during one or more sampling events, these included: boron, iron, cadmium, copper, hexavalent chromium, lead, molybdenum, vanadium, and zinc.63

58 Surface Water TSD, at 42. 59 Surface Water TSD, at 42. 60 Surface Water TSD, at 42. 61 Surface Water TSD, from 44-45. 62 Surface Water TSD, from 45-50. 63 Surface Water TSD, from 45-50.

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A final concern with stormwater runoff is that the recent monitoring shows tritium levels that are hundreds of times higher than background levels.64 Although concentrations remain below the current PWQO of 7000 Bq/L it should be noted that the Ontario Drinking Water Advisory Council (ODWAC) has recommended that Ontario adopt a tritium drinking water standard of 20 Bq/L (Ontario’s current drinking water standard for tritium is also 7000 Bq/L).65 Since Lake Ontario is a crucial source of drinking water to local inhabitants, and due to the inability of water supply plants to remove tritium, it is essential that all reasonable efforts are made to minimize tritium discharge into the lake.

64 CNSC and DFO EA Report, at 85 (the Report notes that tritium levels in some subcatchments are up to 5,430 Bq/L compared to background levels of 5-26.2 Bq/L in surface water and 23-61Bq/L in precipitation). 65 Ontario Drinking Water Advisory Council, “Report and Advice on the Ontario Drinking Water Quality Standard for Tritium”, (21 May, 2009).

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b.3 Stormwater runoff from the DNGS is not regularly monitored. Stormwater sampling at Darlington has only been conducted during three intervals over the past 20 years. The lack of regular stormwater monitoring at the DNGS is troubling given that past sampling has shown a range of metal concentrations exceedings PWQOs. Failed acute lethality in 1996 and 2001 suggests that the DNGS was in violation of section 36 of the Fisheries Act. In light of these findings, it is difficult to understand why the DNGS has not developed a regular storm water monitoring program.

b.4 Contaminant concentrations in onsite and near site waterbodies exceed Provincial Water Quality Objectives.

The surface water technical supporting document indicates that contaminant concentrations in several onsite and near site water bodies have exceeded PWQOs and interim PWQOs on one or more sampling occasions. Coot’s Pond has consistently exceeded the PWQO for pH during the summer months.66 Samples taken from Coot’s Pond have also exceeded the PWQO for unionized ammonia and iron, and the interim PWQO for phosphorus.67 Samples from SWM pond, Tree Frog Pond and Darlington Creek have exceeded the PWQO for cobalt and iron on one or more sampling occasions.68 In addition, samples from SMW pond in 2007 showed chromium levels above the PWQO, and samples from Darlington Creek and Tree Frog pond in 2007 exceeded the interim PWQOs for boron, phosphorus and zirconium.69 A final concern is samples from 2008 that show aluminum, nitrate and nitrite levels in Darlington Creek exceeding the

66 Surface Water TSD, at 53. 67 Surface Water TSD, at D-6, D-12, D-18, D-24. 68 Surface Water TSD, at D-5, D-11, D-17, D-23 69 Surface Water TSD, at D-5, D-6, D-11, D-12, D-17, D-18, D-23, D-24.

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Canadian Council of Ministers of the Environment’s Canadian Environmental Quality Guidelines for the Protection of Aquatic Life (CCME CEQG PALs).70 What terms and conditions, if any, would be required to ensure adequate provisions for the protection of the environment?

Section 24(5) of the Nuclear Safety and Control Act allows the Commission to impose any licence condition that it deems necessary for the purposes of the Act. If the Commission decides to issue a licence, it has the authority and responsibility to impose terms and conditions to ensure that environmental protection measures are adopted and enforced. The following licensing conditions would help to minimize the plant’s impact on the environment (both necessary and feasible).

a(i) The Commission should require OPG to develop and implement a robust impingement and entrainment monitoring program for the DNGS.

Due to the inadequacy of the available impingement and entrainment data. The Commission should require the DNGS to develop and adopt a robust monitoring program that can address this significant deficiency. A robust monitoring program would require:

● ongoing impingement and entrainment sampling at monthly intervals; ● an understanding of differences between daytime and nighttime impingement

and entrainment rates, and a sampling methodology that accounts for these differences; and

● making the monitoring data readily available to the public and the Commission on an ongoing basis.

OPG should also monitor the impact of the DNGS on ichthyoplankton. Properly monitoring ichthyoplankton will require a study that is attuned to seasonal variation in

70 Surface Water TSD, at D-5, D-11, D-17, D-23

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the presence of eggs and larvae in the water. The study would also need to be intensive, since life stages for some species last only a few days. Finally, the study would need to develop a protocol for reliably collecting ichthyoplankton samples, which are delicate and can easily be damaged beyond the point of identification.

a(ii) The Commission should require OPG to immediately review available impingement and entrainment mitigation options and determine how it will comply with its current DFO authorization.

Aside from switching to a closed cycle cooling system, there are no obvious mitigation measures for reducing impingement and entrainment rates at the DNGS. The DFO authorization requires that OPG conduct a “review of available impingement and entrainment avoidance and mitigation options... to determine if any may be technically and economically feasible to further avoid or mitigate impingement and entrainment losses”.71 The authorization requires that this review be completed and reported to DFO by 2024. The Commission should request that OPG begin this review immediately and release the findings within one year. Impingement and entrainment represent a chronic source of stress to the ecosystem surrounding the DNGS. If there are any mitigation measures that can reduce the impact of the CCW system, they should be implemented as soon as possible. Unless this review is conducted in a timely manner, and viable options are implemented, the DNGS cannot be said to have taken adequate measures to protect the environment. Furthermore, OPG is currently unable to meet the terms of its DFO authorization. OPG must determine how it will comply with the authorization as soon as possible, and within one year at the latest. The Commission must not permit the DNGS to continue operating in violation of the Fisheries Act. OPG’s review of mitigation options should include an examination of variable speed pumps. The use of variable speed pumps could help reduce flow rates through the CCW system at times when higher flow rates are not needed (due to low water temperatures, or lower generation). A reduction in flow rates could translate into a reduction in impingement and entrainment rates. However, OPG will need to consider

71 DFO authorization, at 2.1.2.

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whether variable speed pumps could create further problems with biofouling or thermal plumes.

b(i) The Commission should require OPG to develop and implement a regular stormwater monitoring regime.

The Commission should require the DNGS to implement a regular stormwater monitoring regime. According to Mr. Draganchuk, monthly or quarterly stormwater monitoring program would be feasible and in keeping with industry best practices. Mr. Draganchuk has advised that an effective stormwater monitoring regime would include:

● Monthly sampling initially with future reductions to a minimum of quarterly sampling based on each stormwater outfall meeting all benchmark monitoring requirements;

● A protocol to ensure that sampling captures the first flush. Mr. Draganchuk suggested that first flush samples would ideally be taken within the first 30 minutes of a storm event (and no later than an hour after a storm event begins);

● A sampling regime that captures potential changes in contaminant levels over the course of the year due to seasonal factors (e.g. salt use in the winter);

● A determination for each outfall of: a. monthly and annual discharge volumes b. contaminant loading discharged to Lake Ontario, and c. an assessment of the impact of contaminant loads on water quality in the

area immediately surrounding outfall ● A proper record keeping system that includes sampling and storm event data.

Based on the current lack of stormwater data, the Commission should require the DNGS to conduct monthly stormwater sampling to generate baseline data. The DNGS could shift to quarterly sampling after the Commission is satisfied that it has established adequate baseline data. Finally, the DNGS should be prepared to take corrective measures if stormwater data exceeds relevant benchmarks. Waterkeeper believes that two relevant benchmarks

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should be PWQOs and acute lethality testing.72 The Commission should require the DNGS to develop a contingency plan that details what corrective measures it will take if stormwater samples fail acute lethality testing or exceed PWQOs.

b(ii) The Commission should require OPG to take corrective actions to ensure that onsite and near site water bodies meet PWQOs.

The Surface Water Technical Support document suggests that Coot’s Pond, SWM Pond, Tree Frog Pond and Darlington Creek exceed certain PWQOs on a regular basis. The Commission should require that OPG closely monitor contaminant concentrations in these waterbodies and develop a strategy to keep all contaminant concentrations in these waterbodies below PWQOs.

Are there any other issues with this project? The Commission's primary tool for understanding whether the DNGS has made adequate provisions for the environment is the Environmental Assessment Screening Report. If there are gaps or flaws in the screening report the record before the Commission will not be complete and the Commission will not be able to fulfill its obligation to assess whether the DNGS has taken adequate measures to protect the environment. c. The Environmental Assessment Screening Report is not sufficient to prove the project makes adequate provision for the protection of the environment. Waterkeeper believes that the Environmental Assessment Screening Report (the “Report”) is seriously flawed. After the release of the Draft Environmental Screening Report (the “Draft”) Waterkeeper hired four experienced advisors in help inform the environmental assessment process. Based on their expert advice Waterkeeper raised a number of concerns with the Responsible Authorities about the draft. These concerns were not addressed in the Report. A detailed discussion of these concerns can be found in the submission we made to the Responsible Authorities during the 72 Waterkeeper stresses that acute lethality testing is already a legally binding benchmark under section 36(3) of the Fisheries Act. The DFO authorization does not alter the DNGS’s obligations vis-a-vis section 36(3).

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environmental assessment process (see Appendix 6). Below, two of our main concerns with the Report are briefly highlighted. The Commission should be aware of these concerns when reviewing the findings in the Report.

c.1 The Environmental Assessment Screening Report failed to properly consider closed cycle cooling - the only technology that would allow the DNGS to drastically reduce fish kills, thermal discharge and biocide release.

Cooling towers are a readily available technology that should be evaluated in any environmental assessment of a thermal power plant. In the United States the Environmental Protection Agency (EPA) considers the use of cooling towers at every power plant that it permits directly . This is because after 40 years of studying and regulating cooling water systems, the EPA has determined that closed cycle cooling is the best technology available for all new power plants.73 Cooling towers would allow the DNGS to drastically reduce the quantity of water that it draws from Lake Ontario. This would in turn allow for a major reduction in fish kills. The EPA has estimated that “freshwater cooling towers and saltwater cooling towers reduce impingement mortality and entrainment by 97.5 percent and 94.9 percent, respectively”.74 In addition to saving fish from impingement and entrainment, closed-cycle cooling would reduce thermal and chemical pollution, protect endangered species and improve the integrity of the surrounding ecosystem. No other technology even approaches the environmental effectiveness of closed-cycle cooling. Closed cycle-cooling would be both technologically and economically feasible at the DNGS. The Powers Engineering report which was attached to Waterkeeper’s submission to the Responsible Authorities concluded that:

73 See 66 Fed. Reg., at 65,256 (Dec. 18, 2001). 74 See 76 Fed. Reg. at 22,200, at col. 1 (“Optimized cooling towers may achieve flow reductions of 97.5 percent or better and 94.9 percent or better for freshwater and saltwater sources, respectively.”). Assuming that the same or a similarly sized intake structure is used, the reduced flow also greatly reduces the intake velocity, which also helps to lower impingement rates.

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A closed-cycle cooling system is the most effective alternative available to minimize the adverse environmental impact of the intake structures of DNGS Units 1-4. It would be technically feasible and cost-effective to retrofit Units 1-4 to closed-cycle cooling.75

Despite its feasibility, and well documented benefits, closed cycle cooling is not considered in the Report. Waterkeeper believes that this omission violated the Canadian Environmental Assessment Act and the Scoping Information Document. However, even if these two issues are left aside, there is a third that remains: The Commission must determine if the DNGS has taken adequate provisions to protect the environment, but it is being asked to do so with almost no information about the single provision that would allow the plant to drastically reduce its environmental impact. The Commission should not allow the DNGS to begin refurbishment until this informational gap is addressed.

c.2 The Environmental Assessment Screening Report’s methodology for assessing the CCW system’s impact on aquatic biota was flawed.

A major flaw in the Environmental Assessment Screening Report is its unwillingness to consider the broader ecological context in which effects of the CCW’s system are situated. It notes that lakewide populations of alewife and goby are large without discussing lakewide stressors. It notes that the decrease in round whitefish embryo survival was minor during warmer winters without considering the future impact of climate change. It notes the difficulty in linking the low impingement rates of slimy sculpin with population level changes, but treats this as grounds for inaction rather than precaution.76 It assumes that survival rates for plankton and invertebrates are high despite conflicting evidence in the literature and the absence of any information at all about survival rates at the DNGS.77

75 B. Powers, “Declaration on Feasibility and Cost-Effectiveness of Cooling Tower Retrofits for Darlington Nuclear Generating Station Units 1-4”, prepared for Lake Ontario Ontario Waterkeeper with reference to the Darlington Nuclear refurbishment EA process, (16 July, 2012) at 12. 76 CNSC and DFO EA Report at 89. 77 CNSC and DFO EA Report at 89.

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The conclusions in the Screening Report contrast with the United States Environmental Protection Agency’s (EPA) approach to understanding the impacts once-through cooling. The EPA has explained that:

“Although it is difficult to measure, EPA believes that an aquatic population's compensatory ability—the capacity for a species to increase survival, growth, or reproduction rates in response to decreased population —is likely compromised by impingement and entrainment (I&E) mortality losses and the cumulative impact of other stressors in the environment over extended periods of time. These cumulative impacts may lead to subtle, less-easily observed changes in aquatic communities and ecosystem function. These secondary impacts are difficult to isolate from background variability, partly because of the limited scope and inherent limitations of the data available to characterize I&E mortality.”78

The EPA’s approach is more in keeping with precautionary principles. It is also alive to the fact that the complexity of ecological systems can make drawing causal links difficult. This is particularly for true a highly stressed waterbody the size of Lake Ontario. The screening report’s flawed approach to understanding the DNGS’s impact on aquatic biota has led to a mistaken conclusion: that the impact is non- significant. When examining once-through cooling systems in the United States, American regulators have learned to avoid this mistake. They have recognized that once-through cooling degrades ecosystem health regardless of whether the impacts can be easily isolated and quantified. Accordingly, they have helped protect overall ecosystem health by focusing directly on minimizing impingement, entrainment and thermal discharge from power plants. Waterkeeper urges the Commission to take a similar approach.

78 United States Environmental Protection Agency, “Environmental and Economic Benefits Analysis for Proposed Section 316(b) Existing Facilities Rule (28 March, 2011), at 2-1.

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d. The CNSC has not released the results of the DNGS accident study conducted by the CNSC staff. In 2012, CNSC staff agreed to produce an accident study before the DNGS relicensing hearing took place. Through information requests, Greenpeace has discovered that CNSC staff have not released the portion of the study that looked at the potential impacts of a Fukushima-scale accident at Darlington. Waterkeeper believes that this study must be released immediately. Given the expected growth rates in Durham region, and Lake Ontario’s importance as a source of drinking water, the public has a right to know all the risks associated with the DNGS. Furthermore, this information is central to the Commission’s ability to adequately assess the potential impacts of OPG’s proposal on the community, including the natural environment. e. DNGS has not developed a proper off-site emergency plan. The Canadian Environmental Law Association (CELA) has spent considerable time reviewing the DNGS’s off site emergency planning. CELA has drawn attention to a number of issues including: 1) emergency plans are not designed to respond to serious accidents;, 2) lengthy evacuation times;, and 3) the inadequate, arbitrary distribution radius for KI pills. Waterkeeper believes that the DNGS must adopt CELA’s recommendations and develop a comprehensive, evidence-based off site emergency plan. CONCLUSION Lake Ontario is an irreplaceable resource. It constitutes an ecosystem of international importance that provides significant ecological services. It is the drinking water supply for millions of people, the site of recreation, transportation, and diverse aquatic habitats. In light of this, it is essential that the Commission’s decision about the DNGS be based on a thorough and reliable factual record. At this time such a record does not exist. Waterkeeper is deeply concerned about the DNGS’s continued non-compliance with the Fisheries Act, the open-cycle cooling water system, and the lack of information being collected on impingement, entrainment, and stormwater runoff. These concerns

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should lead the Commission to conclude that the DNGS does not make adequate provision for the protection of the environment. If the Commission decides to issue the DNGS a general operating licence, it should be for one year at most. A one-year licence would give OPG sufficient time to: 1) determine how it will comply with its DFO authorization; 2) develop and implement programs to monitor impingement, entrainment and stormwater runoff; and 3) develop a plan for ensuring that water quality onsite and near-site consistently meets all water quality standards. OPG’s request for a licence comes at a time when the United States and Canada have been cooperating to restore and protect the Great Lakes. Via the work of the International Joint Commission, and the Great Lakes Water Quality Agreement, and by committing billions to sustain and restore the Great Lakes, both jurisdictions recognize the value of these precious ecosystems. Furthermore, the Province of Ontario is on the verge of passing the Great Lakes Protection Act, which would require consideration for swimmable, drinkable, fishable Great Lakes in all major decisions. As a community, we are just beginning to appreciate the essential link between the health of the Great Lakes and our future prosperity. At a minimum, regulators should ensure that facilities like the DNGS comply with the law and carefully monitor their impact on the aquatic environment. OPG has not demonstrated that the DNGS does either. For that reason, the Commission cannot reasonably grant its request for a 13-year licence.

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LIST OF APPENDICES APPENDIX 1: Biological Report of Dr. Henderson on the New Nuclear Darlington Power Plant, Pisces Conservation Ltd. APPENDIX 2: Biological Report of Dr. Henderson on the Continued Operation of the Darlington Nuclear Generating Station, Pisces Conservation Ltd. APPENDIX 3: Biological Report of Dr. Seaby on the Continued Operation of the Darlington Nuclear Generating Station, Pisces Conservation Ltd. APPENDIX 4: Engineering Report of Bill Powers, Powers Engineering APPENDIX 5: Kevin Dragnanchuk CV APPENDIX 6: Lake Ontario Waterkeeper’s submission for the DNGS EA process.

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WORKS CITED Bill 66, An Act to protect and restore the Great Lakes-St. Lawrence River Basin, 1st Sess, 41st Leg, Ontario, 2015 (passed 2nd reading 04 June 2105, currently before the Standing Committee on General Government). Bring Back the Salmon, Lake Ontario Atlantic Salmon Restoration Program, viewed on September 24th 2015 at: http://www.bringbackthesalmon.ca/?page_id=12 Canadian Nuclear Safety Commission. (19 August, 2015). Transcript: Public Hearing on August 19 2015. Canadian Nuclear Safety Commission and Fisheries and Oceans Canada. (March 2013). Final Environmental Assessment Screening Report: The Refurbishment and Continued Operation of the Darlington Nuclear Generating Station, Municipality of Clarington, Ontario. Canadian Nuclear Safety Commission and Fisheries and Oceans Canada. (16 December, 2013). Memorandum of Understanding Between Fisheries and Oceans Canada and Canadian Nuclear Safety Commission for Cooperation and Administration of the Fisheries Act and the Species at Risk Act Related to Regulating Nuclear Materials and Energy Development. Golder Associates. (December 2011). Surface Water Environment Technical Support Document Darlington Nuclear Generating Station Refurbishment and Continued Operation Environmental Assessment. Fisheries and Oceans Canada. (June 24, 2015). Paragraph 35(2)(b) Fisheries Act Authorization. Henderson, P. A., Dr. (4 October, 2010) Comments on aquatic issues relating to the proposed New Nuclear Darlington (NND) power plants, Prepared for Lake Ontario Waterkeeper with reference to the Darlington New Nuclear Power Plant EA Process.

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Henderson, P. A., Dr. (July, 2012) “Comments on Environmental Studies Relation to the Darlington Nuclear Generating Station Refurbishment and Continued Operation Project”, prepared for Lake Ontario Ontario Waterkeeper with reference to the Darlington Nuclear refurbishment EA process. MacGregor, R. J. Casselman, L. Greig, J. Dettmers, W. A. Allen, L. McDermott, and T. Haxton. (2013). Recovery Strategy for the American Eel (Anguilla rostrata) in Ontario. Ontario Recovery Strategy Series. Prepared for Ontario Ministry of Natural Resources, Peterborough, Ontario. Ontario Drinking Water Advisory Council. (21 May, 2009). Report and Advice on the Ontario Drinking Water Quality Standard for Tritium. Retrieved from http://ceaa-acee.gc.ca/050/documents/49046/49046E.pdf Ontario Ministry of Environment and Climate Change. (July, 1994). Provincial Water Quality Objectives of the Ministry of Environment and Energy. Retrieved from: https://dr6j45jk9xcmk.cloudfront.net/documents/3016/moeprovincialwaterqualityobjectivesen.pdf Ontario Ministry of Infrastructure. (June 2013, Office Consolidation). Growth Plan for the Greater Golden Horseshoe, 2006. Retrieved from https://www.placestogrow.ca/content/ggh/2013-06-10-Growth-Plan-for-the-GGH-EN.pdf Ontario Power Generation. (September 2013). Darlington Nuclear Refurbishment and Continued Operation Environmental Assessment Follow-Up Program. Ontario Power Generation. (21 August, 2014). Submission to DFO for an Authorization under the Fisheries Act for the Darlington Nuclear Generating Facility. Powers, B. (16 July, 2012). Declaration on Feasibility and Cost-Effectiveness of Cooling Tower Retrofits for Darlington Nuclear Generating Station Units 1-4, prepared for Lake Ontario Ontario Waterkeeper with reference to the Darlington Nuclear refurbishment EA process.

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Seaby, R., Dr. (September, 2015). Notes on the fishery issues relating to Darlington Nuclear Generating Facility relicensing (Ontario Power Generation (OPG)), prepared for Lake Ontario Ontario Waterkeeper with reference to the DNGS relicensing process. SENES Consultants Limited. (December 2011). Aquatic Environment Technical Support Document Darlington Nuclear Generating Station Refurbishment and Continued Operation Environmental Assessment. Town of Ajax. (10 February, 2014). Duffin Creek Water Pollution Control Plant Outfall Environmental Assessment - Part II Order Request. United States Environmental Protection Agency. (28 March, 2011). Environmental and Economic Benefits Analysis for Proposed Section 316(b) Existing Facilities Rule.