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Scott Berry, Manager, Site Public Affairs Corporate Relations and Communications Nuclear Issues / Nuclear Waste Management for OPG, beside 'in-ground' structures for storing intermediate level waste.Fred Lum/The Globe and Mail

A federal judge has invalidated Ontario Power Generation's licence to build new reactors at its Darlington site, saying the federal regulator did not sufficiently consider the potential for a severe accident or waste issues involving spent fuel.

Justice James Russell ordered the Canadian Nuclear Safety Commission (CNSC) to re-establish a review panel and address the "significant gaps" in its assessment of chemicals on site, the risk of an extreme accident, and the disposal of spent fuel.

Greenpeace Canada, which launched the judicial challenge, welcomed the decision, saying it will force federal regulators to consider controversial aspects of nuclear construction projects that have typically been left to later assessments. "It's unprecedented for any nuclear project in Canada to face the kind of regulatory scrutiny the court is demanding," Greenpeace campaigner Shawn-Patrick Stensil said Thursday.

Justice Russell noted the review panel had acknowledged that "no solution has yet been implemented for the long-term management of used [radioactive] fuel," but that it failed to adequately assess the implications of that situation.

A federal body, the Nuclear Waste Management Office, is proposing to construct a deep repository to bury high-level radioactive fuel but it has not selected a site or filed for an environmental assessment of that project. OPG's own plan to bury low- and intermediate-level radioactive waste in a deep geological repository on the shore of Lake Huron is still being considered by the CNSC, and has provoked vehement opposition in Ontario and Michigan.

The decision does not affect a current project since Ontario cancelled plans to build two reactors at Darlington. Ontario Progressive Conservative Leader Tim Hudak has said he would support construction of new reactors rather than wind and solar projects if demand for electricity rebounded and the power was needed.

A spokesman for the Canadian Nuclear Safety Commission said the regulator would not comment on the decision because it needed time to review it.

Neal Kelly, of the provincially owned OPG, said there is plenty of time for the regulator to reconstitute a panel and deal with the issues highlighted by Justice Russell, who refused Greenpeace's request to throw out the entire environmental assessment and make the parties start over. "He's asking this panel or another panel to take a look again at three specific issues," Mr. Kelly said.

However, environmental groups have also challenged the regulator's environmental assessment of OPG's plan to refurbish existing reactors at Darlington, a project that is the cornerstone of the Liberal government's long-term energy plan.

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