HomeMy WebLinkAbout18 017 OPG Low and Intermediate Level Nuclear Waste Agreement Amendment By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
[. (Br
/X-Li'l' '�C\
tk
lid
,`�Ng�LIiY OF K1NGPQ�\�
BY-LAW
NO. 2018 - 017
BEING A BY-LAW TO AMEND BY-LAW NO. 2004 - 157 THE SIGNING OF AN
AGREEMENT WITH ONTARIO POWER GENERATION INC. FOR THE
MANAGEMENT OF LOW AND INTERMEDIATE LEVEL NUCLEAR WASTE
WITHIN THE MUNICIPALITY OF KINCARDINE
WHEREAS Sections 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended, provide that the powers of a municipality under this or any other Act
• shall be interpreted broadly so as to confer broad authority on the municipality to
enable the municipality to govern its affairs as it considers appropriate and to
enhance the municipality's ability to respond to municipal issues and has the
capacity, rights, powers and privileges of a natural person for the purpose of
exercising its authority under this or any other Act;
AND WHEREAS on October 13, 2004, by By-law No. 2004 - 157, the
Municipality of Kincardine entered into an agreement with Ontario Power
Generation Inc. for the management of low and intermediate level nuclear waste
within the Municipality of Kincardine (the Agreement);
AND WHEREAS under Section 4.1(3)(G) of the Agreement, the parties are
required to amend the Agreement to address, among other things, the manner in
which the monies held in trust are to be distributed, and the manner in which the
further annual payments described in Schedule "A" are to be administered;
AND WHEREAS under Section 4.1(3)(E) of the Agreement, ongoing annual
payments for each of Kincardine and the Adjacent Municipalities, as specified in
Schedule "A" of the Agreement, have been held in trust by OPG since 2015;
• AND WHEREAS Council deems it expedient to amend the Agreement with
Ontario Power Generation Inc.;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That By-law No. 2004 - 157 be amended as per the Amending Agreement
and attached hereto as Schedule 'A' and forming part of this by-law.
2. This by-law shall come into full force and effect at the time of its passing.
3. This By-law may be cited as the "OPG Low and Intermediate Level Nuclear
Waste Agreement Amendment By-law".
READ a FIRST and SECOND TIME this 14th day of February, 2018.
READ a THIRD TIME and FINALLY PASSED this 14th day of February, 2018.
s
Mayor Clerk
This is Schedule "A." to By-Law
No(D1_ b-6}passed the 1` day
of �cbc UGry 2018
AMENDING AGREEMENT
THIS AMENDING AGREEMENT ("Amendment") is dated as of February 14, 2018 (the
"Amendment Effective Date"),
BETWEEN:
ONTARIO POWER GENERATION INC., a
corporation existing under the laws of Ontario
(hereinafter called"OPG")
AND
THE CORPORATION OF THE MUNICIPALITY
OF KINCARDINE, a corporation existing under the
laws of Ontario
(hereinafter called"Kincardine")
RECITALS:
A. Whereas OPG and Kincardine entered into a certain Agreement Regarding a Deep Geologic
Repository for Low&Intermediate Level Nuclear Waste,dated as of October 13,2004(the
"Agreement");
B. Whereas the Agreement contemplates that Kincardine and the Adjacent Municipalities are
entitled to certain payments and community benefits in connection with the construction
and operation of the DGR, in recognition of the communities' role in providing a benefit to
all of Ontario with a safe and permanent solution for the waste, and as is widely considered
good practice at similar waste facilities around the world;
C. Whereas OPG continues to maintain that the DGR project is the best and lasting solution
for low- and intermediate-level nuclear waste, and Kincardine continues to acknowledge
the potential benefits of the DGR project to the environment, its own residents and all
communities around the Great Lakes
D. Whereas under Section 4.1(3)(E) of the Agreement, ongoing annual payments for each of
Kincardine and the Adjacent Municipalities,as specified in Schedule"A"of the Agreement,
have been held in trust by OPG since 2015;
E. Whereas under Section 4.1(3)(G) of the Agreement, the parties are required to amend the
Agreement to address,among other things,the manner in which the monies held in trust are
to be distributed, and the manner in which the further annual payments described in
Schedule"A" are to be administered;
- 1 -
F. Whereas subsequent to the Agreement: a Community Consultation in Kincardine found a
majority of residents in support of the DGR; and, following two years of extensive public
consultations and public hearings, a federally appointed, independent Joint Review Panel
("JRP") of experts concluded in 2015 that the DGR would protect the environment and
Lake Huron,that the Bruce nuclear site was appropriate,and that the project should proceed
"now rather than later";
G. Whereas the timeline for the federal process to approve the project's Environmental
Assessment has been extended for requests for additional information on the project;
H. Whereas OPG continues to maintain that a DGR at the Bruce nuclear site is the best and
lasting solution for the permanent and safe disposal of L&ILW, will protect the lake and
environment, and is the right thing to do for future generations;
I. Whereas OPG recognizes that Kincardine and the Adjacent Municipalities have continued
to support the DGR project at all stages and in multiple venues: through the JRP hearings
and other public reviews including in the extended approvals process; with resolutions of
municipal councils, submitted to regulatory authorities; in municipal officials' interviews
with media; and in regular, ongoing engagement by elected officials and municipal staff
with their communities;
NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged,the parties hereto agree as follows.
1. Unless otherwise defined in this Amendment, all capitalized terms appearing in this
Amendment,including those in the above recitals, shall have the meanings ascribed thereto
in the Agreement.
2. Upon the execution and delivery of this Amendment by the Parties, OPG shall pay to each
of Kincardine and the Adjacent Municipalities, in accordance with Schedule "A" of the
Agreement,fifty percent(50%)of the annual payment amounts stipulated in Schedule"A"
and currently held in trust by OPG with respect to the years 2015,2016 and 2017.
3. Notwithstanding Section 4.1(2)(A)of the Agreement,but subject to all other provisions of
the Agreement, including, for greater certainty, Section 2.2(b), OPG shall pay to
Kincardine and the Adjacent Municipalities, on or before December 31St, 2018 and on or
before December 31'of each subsequent year, fifty percent(50%) of the annual payment
amounts contemplated thereunder and as stipulated in Schedule "A", until the occurrence
of either of the following events:
a. If OPG, in its sole discretion, terminates the DGR project at the Bruce nuclear site
as described in the Environmental Assessment undertaken under the Canadian
Environmental Assessment Act, 2012 (the "Environmental Assessment") for any
or no reason,no further payments, including annual payments, lump sum payments
-2-
or payments held in trust, shall be due or payable by OPG to Kincardine or the
Adjacent Municipalities; or
b. If the Environmental Assessment process results in a governmental decision
allowing the DGR project to proceed, OPG shall pay to each of Kincardine and the
Adjacent Municipalities the remaining fifty percent (50%) of the annual payment
amounts stipulated in Schedule "A" for the years 2015, 2016 and 2017, currently
held in trust by OPG, as well as the remaining fifty percent(50%)of any payments
held in trust for 2018 and subsequent years, and OPG shall resume payment of the
full amount of the subsequent annual payments to Kincardine and Adjacent
Municipalities in accordance with Section 4.1(2) and Schedule "A" of the
Agreement.
4. Except as expressly provided in this Amendment, all other payment terms set out in the
Agreement shall continue to apply. For greater certainty, OPG shall pay to Kincardine and
the Adjacent Municipalities the lump sum payments in accordance with Section 4.1(1)(C)
of the Agreement.
5. Section 4.1(3)(G) of the Agreement is hereby amended as follows:
In the first sentence thereof, the reference to "2017" is deleted and replaced with
"2026"; and
In the second sentence thereof, "June 30th 2018" is deleted and replaced with
"June 30th, 2027"and"2017" is deleted and replaced with"licence approval of
DGR operation".
6. Section 4.1(3)(I)of the Agreement is hereby amended by deleting the first sentence thereof
and replacing it with the following:
Notwithstanding CNSC licence approval to operate the DGR in 2026, should the
DGR not be in service by 2027, or should OPG for any reason be prevented from
operating the DGR at any time after 2027, annual payments to be made for the
calendar year following 2027, or the year in which OPG was prevented from
operating the DGR, as the case may be, may at OPG's sole discretion be held by
OPG in trust in a separate bank account to be applied in accordance with this
Agreement.
7. Section 9.3 (Centre of Energy Excellence) of the Agreement is deleted in its entirety and
replaced with the following:
9.3 Centre of Energy Excellence
OPG and Kincardine agree to form a joint OPG-Kincardine working group
(the "Working Group") to support the concept of a centre of energy
excellence ("CEE"). The Parties agree that the Working Group will be
-3 -
responsible for making recommendations to OPG and Kincardine on the
nature of the CEE, consistent with OPG's commitments to the Joint Review
Panel.
Notwithstanding the foregoing,the implementation of the Working Group's
recommendations shall be: (i) conditional on mutual agreement by both
Parties; and (ii) conditional on the approval of the licence to construct the
DGR under the Nuclear Safety and Control Act, as amended, consolidated,
supplemented or replaced from time to time.
8. The following is hereby added to the Agreement as new Section 12.11:
12.11 Relationship of Parties
OPG and Kincardine are independent contractors. This Agreement does not
create any agency, partnership, employment or joint venture between OPG
and Kincardine or the Adjacent Municipalities. Neither Party has the
authority to bind the other Party without the other Party's prior written
consent.
9. The Parties agree to review the terms of the Agreement following a governmental decision
allowing the DGR project to proceed under the Environmental Assessment process. The
Parties agree that this Amendment is made a part of the Agreement. Unless expressly
amended herein, all terms and conditions of the Agreement shall remain in full force and
effect and are hereby ratified. In the event of any conflict between this Amendment and
the Agreement,the terms of this Amendment will prevail.
10. This Amendment may be executed in counterparts and delivered by the exchange of email
PDF documents, each of which shall be an original, but all of which shall constitute one
and the same instrument.
The rest of this page is intentionally blank
-4 -
IN WITNESS WHEREOF,the undersigned have executed and delivered this Amendment as of
the Amendment Effective Date.
ONTARIO POWER THE CORPORATION OF THE
GENERATION INC. MUNICIPALITY OF
KINCARDINE
By: Ldp ' It By: (..)(1,1„....001,
Name: 4-/S / Name: Anne_ Eca t e
vice - Pei%SIi /J J
Title: NU -LEA-e. ttl" 57 MGAIT Title: Moo(
I have authority to bind the corporation. I have authority to bind the corporation.
Name: GhOken ChQrilbc(v
Title: C f\O
I have authority to bind the corporation.
-5 -