Comment Related to ERO 013…

Comment Related to ERO 013-3800
Amendments to the Renewable Energy Approvals Regulation (O. Reg. 359/09)

Published Proposal:
Proposes to amend Renewable Energy Approvals Regulation (O.Reg. 359/09) to require a project developer to show there is a demand for the electricity they will generate to get a renewable energy approval.

Summary of Key Comments:
The intent of the proposed amendment is not wrong, as the need to show a demand for the electricity to be generated by any project is certainly justified. However, the proposed amendment is inadequate:
• The proposal acknowledges that renewable energy projects may impact the environment, but suggests that the effects will be reduced to an acceptable level through the renewable energy approvals process. The comments in this submission will identify where the current revision of the renewable energy approvals process are not sufficient to reduce the impact of renewable energy projects to a level commensurate with risk accepted by the public from other conditions and also show how the current revisions of the renewable energy approval process are not adequate to reduce the risk of renewable energy projects to the natural environment. The proposal needs to be amended to identify the required changes to O.Reg. 359/09 (as identified in this submission).
o A peer reviewed paper (Supporting Link 1) issued in 2017 presented evidence that there is a need to modify normal LAeq sound limits to improve the effectiveness of regulation of wind turbine sound limits. A key finding showed annoyance (or irritation) is more related to changes and characteristics of sound at a particular time, rather than long term averages of sound. As a result, current regulations that are based on long-term averages are not effective at addressing irritation, a health effect recognized by the World Health Organization.
o A second peer reviewed paper (Supporting Link 2) issued in 2018 presented evidence from many references and data from actual failures that “Wind turbines with inadequate setbacks can adversely impact public health both directly from physical risk and indirectly by irritation from loss of safe use of property.” The paper identified, “A comprehensive study of wind turbine failures and risks in the Canadian province of Ontario gives data to enable validation of existing failure models. Failure probabilities are calculated, to show risk on personal property, or in public spaces. Repeated failures, and inadequate safety separation show public safety is not currently assured. A method of calculating setbacks from wind turbines to mitigate public risk is shown.” The paper concluded the wind turbine industry should establish a comprehensive, accessible database of failures, which would improve the industry and protection of public safety. Regulating agencies could use the information from a comprehensive database to establish setbacks from known initiating events, such as a setback of 560 metres to provide mitigation from wind turbine failures and shed ice as demonstrated by the database of failures in Ontario.
• The proposal for amendment to the Renewable Energy Approvals Regulation suggests that the basis for the proposed amendment is that Ontario is in a strong supply situation. This would imply that proposals, which would harm the public or the natural environment, would be acceptable if the electricity supply situation was different. For example, construction of a proposed and approved connection cable under Lake Erie, or the construction of an enhanced inter-tie with the province of Quebec would each change the supply situation by permitting Ontario to export more electricity “if done is a way that ensures value to Ontario Electricity ratepayers and the electricity system.” Similarly, there will be a significant change in the Ontario electricity supply situation by the time that Pickering Generating Station reaches it’s end of life in approximately 6 years. It is wrong minded to suggest that any of these factors could even be considered to permit continuation of the harm to the public or the natural environment that has been created under the currently existing O.Reg. 359/09. The proposal needs to be amended to recognize that it is never sufficient to harm the public or the natural environment through supply proposals, and the only proposals to be approved would ensure the risk of the renewable energy projects to the public or the natural environment are not excessive as they currently are.
• The proposal identifies that it will “amend the Planning Act, to restore municipalities planning authority related to siting renewable energy generation facilities.” It is not sufficient to turn authority over to the municipalities without having in place adequate regulations under O.Reg. 359/09 to ensure protection of the public and the natural environment. As noted previously, O.Reg. 359/09 is currently inadequate to ensure this protection.
• Revision of the Regulation 359/09 should recognize that setbacks from any wind turbine in Ontario to a residence, or locations such as schools, churches, or recreation centres, should be based on the total sound level received at the site from all turbines in the array plus adjacent arrays within 2500 metres. The maximum sound level should be no more than 35 dBA in consideration of the special acoustic qualities of wind turbines, more irritating than road noise, of a cyclical nature, often worse at night, and tonal on some occasions. Additionally the sound from wind turbines increases when rain is present, or when icing is present due to increased turbulence.
• Relaxation of communication requirements from proponents who do not have a website to communicate the documentation occurs 11 times in the current regulations and are not justified. Any developer proposing a wind turbine development that does not even have the maturity to have a website to communicate information should not be considered.
• The ability of a landowner to enter into a contract that removes any protection from vulnerable members of society (it may be family members under age 18 living on the location, employees working for the landowner, or transient couriers who may be called to the location) is not justified, and needs to be addressed.
• Measured sound level limits need to apply to any location on the property, not only to the centre of a residence or other building. A receptor should not have to shelter inside a house, but should be able to access or develop all of their personal property without encumbrance from a wind turbine on a neighbour’s property.

Changes Required to O. Reg. 359/09 – by Section and Why:

Part I – Interpretation
• 1. (1) in this regulation
o “Sound power level” needs revision to delete “applies in respect of the wind turbine when the wind turbine is operating at 95 per cent of it’s nameplate capacity” and to substitute “applies in respect of the wind turbine when the sound emission from the wind turbine is at it’s maximum emitted sound, applying a penalty of 5 dB if cyclical sound is identified or 5 dB if tonality is detected.” Why required – Wind turbines are not necessarily at the maximum sound power level at high power. Reference Supporting Link 1. They may exhibit the highest, or most irritating sound emissions if curtailed in output, which may enhance tonality, or if cyclical emissions are enhanced by turbulent conditions due to wind direction through the array places turbines downwind of others, or when rain, icing, or blade damage occurs due to erosion. A 5 dB penalty applied to a lower sound power level when irritation is enhanced by tonality or cyclical emissions can result in an apparent total sound power higher than even high power conditions.
• 1. (4.) definition of “noise receptor” in subsection (1) identifies the locations of noise receptors
o Needs revision as subsection 1., 2., 3., 4., 5., each identify the “noise receptor” to delete the “centre of a building” or the potential future “centre of a building.” Substitute, “the location on the property at which the received irritating sound levels are the highest. This may be inside or outside of a building, and may vary depending on reflection from surfaces such as water bodies or structures. It may be at the boundary between the property hosting the wind turbine and the property where measurement is occurring.” Why required – measuring in the centre of existing building, in particular an existing building, may prevent a property owner from exercising their right to develop other locations on their property, subject to all the normal building bylaws. Additionally, property owners are not obliged to shelter inside buildings to mitigate the effects of noise emitted by neighbours with wind turbines. A property owner has the right to free and unencumbered access to any location on their property.
• 1. (4.1) identifies an exemption for buildings, which are not proposed, or existing at the time the application is made for a Renewable Energy Approval.
o Subsection 1. (4.1) should be deleted from the regulation. Why required - it permits a Renewable Energy Approval project to effectively “sterilize’ the property of a neighbour from future development. This is effectively expropriation without compensation of the rights of the neighbour to develop their property at a future date and should be considered as illegal. Reference URL of Supporting Link 2.
• 1. (4.2) identifies a reference to Subsection 1. (4.1). If 1. (4.1) is deleted, then 1. (4.2) should also be deleted. Why required – not applicable as referring to a section to be deleted.
• 1. (6) states that an odour receptor or noise receptor “does not include a location on a parcel of land if any part of the renewable energy generation facility will be located on that parcel of land ...” This subsection requires revision, as it should not be allowed to permit an individual signing a contract to site a renewable energy generation facility on a parcel of land to wave the rights of:
o Vulnerable minors under the age of 18 who may live on the parcel of land,
o Employees of the landowner who may work on the parcel of land, or,
o Transient visitors (such as delivery couriers, postal employees, or ambulance employees) who may be required to visit the parcel of land.
o Why Required - No individual has the right to sign a contract, which will waive the rights of vulnerable minors, or employees required to work on a parcel of land. The individual signing an agreement to site a renewable energy generation facility on a parcel of land is required to ensure that no individual has to waive rights to protection on the basis of a commercial contract.
• 1. (6.1) defines the standards and rules for “sound power level.”
o This section is incorrectly located as it is not a subsection of 1. (6) which applies to a parcel of land where a renewable energy facility is sited. Section 1. (6.1) needs to be a stand alone section, and needs to incorporate the applicable conditions identified for 1(1) previously, that sound power level needs to be defined so it applies in respect of the wind turbine when the sound emission from the wind turbine is at it’s maximum emitted sound, applying a penalty of 5 dB if cyclical sound is identified or 5 dB if tonality is detected.
• 1. (6.6) states that the reference to the sound power level of a wind turbine is a reference to the sound power rounded to the nearest whole number.
o This section needs to be revised to show that the reference sound power level shall either be the value identified, or shall be the value rounded up to the next higher whole number. Why required – there is no basis for rounding the sound power levels down. Any calculation performed can be easily done to the nearest decimal value, or if for some reason the proponent wishes to “round” the value, it should be rounded up due to uncertainty factors.

Part IV – Renewable Energy Approvals – Application Process Before Approval Issued
• Section 15 (6) 5. Identifies the neighbours of a proposed project who must receive notification.
o Currently specifies “notification of every assessed owner of land within 550 metres of the project location in respect of a Class 3,4,or 5 wind facility.” Requires revision to increase “notification of every assessment owner of land within 2500 metres of the project location in respect of a Class 3,4, or 5 wind facility.” Why required – land owners within 2500 metres of a project may be impacted by acoustical conditions, and may well drive past the facility after it is constructed.
o Currently specifies notification of the “clerk of each local municipality and upper tier municipality in which the project location is situated.” Requires revision to also include “clerk of any municipality and upper tier municipality within 2500 metres of the project location.” Why required – impact does not stop at municipality boundaries.
• Section 15.1 requires the “posting of copies of documents within 10 days related to the project on the person’s website, if the person has a website.”
o Requires revision to eliminate the exception “if a person has a website.” Why required – The excuse of not having a website is no justification of a project proponent not informing the public of details of a project. It is a simple act for a project proponent to obtain a website from it’s own resources of from a contractor. Not having the ability to have a website should be a major flag as to the capability of a proponent to carry out a project capably.
• Section 15.2 identifies the required publishing the details of a project, but is not specific as to where the publishing is carried out. It could be in a monthly advertising newspaper or a regional newspaper that is not commonly available in the municipality. Again, it permits an exception of the need to identify if project documents are available on a website if a website is not available.
o Requires revision to eliminate the exception “if a person has a website.” Requires clarification to ensure that the details are posted in each regional and local newspaper circulated in the area, and mailed directly to all residents living within 2500 metres of possible turbine locations, including:
• a clear map that identifies all relevant road names,
• the boundary of a 2500 metre encompassing all possible turbine site locations, as well as
• the website where detailed information is available, plus
• municipal town office and library locations where the detailed information is available
o Why required – examples can be given of newspaper maps that are so general that citizens were unable to identify project boundaries (in the Nation Rise project).
• Section 16 refers to consultation with public. Again, the phrase, “if the person has a website” is an excuse for not posting the information. Details of the “two public meetings, each on a separate day,” are inadequate.
o Requires revision to eliminate the justification of not having a website for not posting information. Needs more clarity as to the “public meetings.” Public meetings need to allow potentially impacted citizens to voice concerns, and to have the concerns recorded by the project proponent. These recorded concerns need to be posted on the project website, and responses to each identified question must be available on the website, and mailed to each person who raised a question at least 7 days before the next public meeting. Why required – Public meetings that are merely a display board forum, where questions are not recorded nor answered are inadequate.
• Section 18 refers to consultation with municipalities in which the project location is situated.
o This needs to be revised to include consultation with municipalities road boards and local services board where the project is located and any other municipality where the nearest possible turbine in the project proposal may be within 2500 metres of an adjacent municipality. Why required – Adverse impacts do not stop at municipal boundaries.
• Section 27 refers to evaluations in areas of natural heritage, and paragraph 27 (5) permits an exemption if the project location is at least 50 metres outside of all areas of natural and scientific interest, or at least 120 metres outside all natural features that are not areas of natural and scientific interest.
o This needs to be revised to require evaluation out to at least 560 metres from any part of a wind turbine project location. Why required - objects or persons within 560 metres are at risk to injury from turbine failures based on Ontario experience. Refer to Supporting Link URL 2.
o This same physical protection setback is required for all other sections identified in Section 27 (6).
• Sections 30 and 31 identify the setback for determination or site investigation within lakes within 120 to 300 metres of a project.
o This needs to be revised to require evaluation out to at least 560 metres from any part of a wind turbine project location. Why required - objects or persons within 560 metres are at risk to injury from turbine failures based on Ontario experience. Refer to Supporting Link URL 2.

Part IV.1 Renewable Energy Approvals – Application Process after Approval Issued
• Section 32.3 makes it optional “The Director may, by written notice ...” related to ongoing information of the public of changes made after the initial application.
o There should be no exception of ongoing communications of changes made to the public. Revise to state, “The Director shall, by written notice ...” Why required – To ensure that communication of changes does occur.

Part V – Prohibitions – Renewable Energy Projects

• Clause 33 is a very confusing statement of applicability and should be clarified. We’ll use a Class 4 wind facility for example.
o 33 (1) says this part (Which we must assume is Part V – Prohibitions) applies ... other than for a Class 2 wind facility (so we should assume it applies for a Class 4 wind facility, then)
o 33 (2) says despite 33 (1) which said Part 5 applies, section 53, 54, 55 apply to a Class 3, 4, 5 wind facility. So now, we should assume section 53, 54, 55 – which are STILL in Part V – Prohibitions, applies for a Class 4 facility, instead of Part 5 which was identified in 33(1) to apply which was also Part 5 – So we are left wondering why it said Part 5 applied, then said that it did not apply, but Part 5 applied. I beg your pardon, could you say that again, please?
o 33 (3) says despite 33 (2) which said 53, 54, 55 (in Part 5) apply instead of 33 (1) which said Part 5 applied, then Section 53, 54, 55 do not apply if approval existed before under Section 9 of “the Act” (a grandfather clause – but without specifying which Act), or section 47.3 of the Act does not apply pursuant to paragraph 2 of subsection 9 (1) of O. Reg. 376/09, s. 1. (None of which are included, so the reader is really lost by now.)
o The it goes on to say in paragraph (4) that section 53, 54, 55 apply for a person described in subsection (5) (the following Subsection (5) or what Subsection (5)?) and then goes on to talk about changes.
o The heading of this section is “Application and Interpretation of Part.” Really, one must ask if it could be “re-interpreted” to make it readable. Why required - It simply is terrible as it is, and a reader is left wondering what the applicability is. It could be much improved.
• Clause 35, under the headings “General Prohibitions” / “Associated Transformers” is not much clearer.
o Subparagraph (a) and (b) refer to the installation of acoustic barriers for transformers operating above 50 kV, but do not specify any differences depending on the transformer capacity. A 20 MVA transformer can have a considerably acoustical output than a 200 MVA transformer, yet either would require the same acoustic barrier at distances of at least 500 from the receptors, unless the transformer is over 1000 metres from the receptors. Again, the difference in transformer capacity should dictate the distance exemption. It may be appropriate to grant an exemption for a small transformer at 1000 metres, but that should not be applied to a large noisy transformer. The 1000 metre exemptions should be based on transformer noise rating. Why required – in recognition of the differences in transformer noise ratings.
o Again, this clause effectively sterilizes the development of property of landowners, as if a “receptor” is not present (1.0.1) – not in the renewable energy approval, when the development was proposed, then there is no need to consider it. Regulation clauses 35 (1.1) (1.2) (1.3) and (1.4) should be revised to require a project developer to consider any potential site where a “receptor” may legally develop their own property. Reason why – a wind development should not preclude other legal developments.
o Clause 35, (1.5) should be revised to remove the exemption of issuing information about a project, “if the developer does not have a web site.” As well as not requiring the developer to consider potential sites where development could occur. Why required – This is no excuse for not notifying the public of changes, or for sterilizing against future development.
• Clause 38, Table item 2, identifies setbacks of 120 metres from developments other than in item 1 (thus including wind turbine developments).
o The table should be revised to increase the setbacks to 560 metres from wind developments to each of the 9 identified areas, including provincial parks and conservation reserves, as Ontario experience shows that potential physical hazard exists at 560 metres. Why required - Members of the public have every right to be in these public spaces without being at risk. Reference Supporting Link 2.
o Similar consideration of increased setbacks from wind turbines to each of the water bodies identified in sections 39 through 46 inclusive. Why required - Members of the public have every right to be in these public spaces without being at risk. Reference Supporting Link 2.
• Clause 53 (1) (a) identifies “the distance between the centre of the base of the wind turbine and any public road right of way or railway rights of way is equivalent to, as a minimum, the length of any blades of the wind turbine plus 10 metres; and”
o Revise 53 (1) (a) to read, “the distance between the centre of the base of the wind turbine and any public road right of way or railway rights of way is equivalent to, as a minimum the distance of 560 metres; and” Why required – Ontario actual experience shows the risk of public injury at distance of 560 metres from wind turbines, Reference Supporting link 2.
• Clause 53 (1) (b) identifies, “the distance between the centre of the base of the wind turbine and all boundaries of the parcel of land on which the wind turbine is constructed, installed or expanded is equivalent to, at a minimum, the height of the wind turbine, excluding the length of any blades.”
o Revise 53 (1) (b) to read, “the distance between the centre of the base of the wind turbine and all boundaries of the parcel of land on which the wind turbine is constructed, installed or expanded is equivalent to, at a minimum, the distance of 560 metres.” Why Required - Ontario actual experience shows the risk of public injury at distance of 560 metres from wind turbines, Reference Supporting link 2, URL 2. Any distance less than this is effectively expropriation without compensation of the neighbouring landowner as the only mitigation possible to reduce his risk is to avoid any portion of his property closer than 560 metres from the wind turbine, Reference Supporting link 2.
• Clause 53 (2) identifies an exemption from Clause 53 (1) (b), specifying it does not apply in respect of a boundary of the parcel of land on which the wind turbine is constructed, installed or expanded if the abutting parcel of land on that boundary is,
o (a) owned by the person who proposes to engage in the renewable energy project in respect of the wind turbine; or
o (b) owned by a person who has entered into an agreement with the person mentioned in clause (a) to permit the wind turbine to be located closer than the distance specified in clause (1) (b).
o This subsection requires revision, as it should not be allowed to permit an individual signing a contract to site a renewable energy generation facility on a parcel of land to wave the rights of:
• vulnerable minors under the age of 18 who may live on the parcel of land,
• employees of the landowner who may work on the parcel of land, or
• transient visitors (such as delivery couriers, postal employees, or ambulance employees) who may be required to visit the parcel of land.
o Why Required - No individual has the right to waive the rights of vulnerable minors, or employees required to work on a parcel of land. The individual signing an agreement to site a renewable energy generation facility on a parcel of land is required to ensure that no individual has to waive rights to protection on the basis of a commercial contract. Reference Supporting link 2.
• Clause 53 (3) permits a further exclusion from Clause 53 (1).
o This clause should be deleted, as there is no basis for expropriation the rights of a landowner for normal usage of their property with out compensation and agreement. Why Required: Ontario actual experience shows the risk of public injury at distance of 560 metres from wind turbines, Reference Supporting link 2.
• Clause 54 (1) establishes a limit such that “no person shall construct, install or expand a wind turbine that meets all of the following criteria unless the centre of the base of the wind turbine is located at a distance of at least 550 metres from all noise receptors”
o Revise Clause 54 to identify, “no person shall construct, install or expand a wind turbine that meets all of the following criteria unless the centre of the base of the wind turbine is located at a distance of at least 560 metres from all noise receptors AND that the sound level received at the noise receptor from all wind turbines in the array, and any wind turbines in neighbouring wind arrays within 2.5 km of the receptor is not greater than 35 dBA. ” Why required: The minimum of 560 metres is a public safety setback based on actual Ontario experience. The maximum sound level of not greater than 35 dBA is required to address the special characteristics of the noise from wind turbines since they are cyclical in nature, and some are additionally tonal in nature. This results in a minimum decrement of 5 dB from a 40-dBA limit. Thousands of complaints received based on irritation from sound received at a limit of 40 dBA make it clear that 40 dBA is NOT an appropriate limit for the special characteristics of wind turbine sound. Reference Supporting Link 1.
• One cannot help thinking that continuing into Clause 54 and 55 is an exercise in obfuscation - the obscuring of the intended meaning of communication by making the message difficult to understand, usually with confusing and ambiguous language.
o The phrase, “if the person has a website” appears 6 more times in clause 54 and 55. There is no excuse for this clause appearing. If a person proposing a wind turbine array does not even have the capability of properly informing the public of documentation and changes, then they should not be considered as a developer. Remove all references to “if the person has a website” as justification of not posting information to inform the public.
o Where notices are required to be given to impacted landowners, the requirement should be changed to all landowners within 2500 metres, not 550 metres.
o Notification of clerks shall be to all municipalities within 2500 metres of the nearest wind turbine, not only those in which the turbines are located.
o All of the references to the table in clause 55 that suggest increased setbacks as the number of turbines increases or as the sound power level of the turbines increases are pointless, and should be removed, as should the table. The only condition that a developer would be required to use the table would be if a developer does not submit a report in accordance with the “Noise Guidelines for Wind Farms.” Yet EVERY developer is REQUIRED to submit such as report. Inclusion of the table suggesting increases in setbacks is misleading, and deceptive, and it should be removed. Why Required: Clarify the document and remove material which only clouds understanding yet is not applicable as the table need not be applied by any developer.