The Potential Impacts of Electricity Projects on the Environment

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With the passage of the Green Energy and Green Economy Act, 2009 and the implementation of Ontario’s Feed-in Tariff program (see Powering the Future: The Green Energy and Green Economy Act, 2009 in this year's Annual Report), an increasing number of renewable energy projects are being connected to the province’s electricity grid. While cleaner energy sources are certainly needed to address climate change and improve poor air quality, it is still imperative to fully and appropriately consider the potential environmental impacts of all electricity projects.

This year, Ontarians used their EBR rights to file several applications related to the construction and operation of electricity projects. The ECO reports on the government’s handling of these applications in this part of the Annual Report. For more information, refer to Sections 5 and 6 of the Supplement to this Annual Report.

Environmental Assessment Requirements for Electricity Projects

In May 2009, two applicants requested that the Ministry of the Environment (MOE) review O. Reg. 116/01 – Electricity Projects, made under the Environmental Assessment Act (EAA), which establishes the environmental assessment requirements for electricity projects, as well as the ministry’s Guide to Environmental Assessment Requirements for Electricity Projects (the “Guide”). The Guide classifies projects into one of three categories – either A, B or C, based on size, fuel type and facility efficiency – which indicates the depth of environmental review prescribed by the regulation.

The applicants argued that large natural gas facilities are misclassified in O. Reg. 116/01 and the Guide. In the Guide, all natural gas facilities five megawatts or larger are placed in Category B. At the time the application was submitted, several renewable energy projects were also in the same category. Projects in Category B are not required to undergo a full individual environmental assessment (EA), but only to follow a proponent-driven Environmental Screening Process (ESP). The applicants argued that natural gas facilities, which are fossil-fuel based and can produce toxic emissions and greenhouse gases, should follow the full EA process. The applicants also expressed concerns that the ESP is: inherently biased; does not require a rigorous assessment of site-specific potential environmental impacts; and does not require consideration of the need for the project, project alternatives, cumulative impacts or local ambient air quality.

Ministry Response

In July 2009, MOE denied the application, stating that the regulation and Guide categorize projects based on similar scale and environmental effects. MOE stated that projects with known and mitigable environmental effects are grouped together and subjected to an ESP, and that only projects with “known significant environmental effects,” such as coal-fired facilities, are placed in Category C and subject to the higher scrutiny of an individual EA. MOE stated that because the environmental effects of large natural gas-fired facilities are mitigable, these projects are properly classified as Category B. MOE asserted that little environmental harm would occur if a review was not conducted since the public can request that a proposed Category B project be elevated to an individual EA. Moreover, the ministry noted that since the EA process, like the ESP, is carried out by the proponent, many of the applicants’ concerns would still not be addressed if individual EAs were required for larger natural gas facilities.

MOE responded that because questions about “need” and “alternatives” are considered during other planning processes, it would be “inappropriate to require project proponents to duplicate an existing assessment.” With regard to cumulative impacts, MOE indicated that it is currently reviewing its EA processes to determine how to consider cumulative effects in stressed airsheds and watersheds. MOE noted it has the authority to impose conditions in Certificates of Approval and require proponents to assess and mitigate negative impacts on air quality.

In September 2009, O. Reg. 359/09 – Renewable Energy Approvals, under the Environmental Protection Act (EPA), amended O. Reg. 116/01 such that most renewable energy generation projects (several of which were classified as Category B) are now exempt from having to comply with the screening process prescribed by O. Reg. 116/01.

ECO Comment

The ECO disagrees with MOE’s decision to deny this review. Nine years have passed since the regulation first came into effect and Ontario’s regulatory landscape and generation mix for electricity have shifted so dramatically that a review of this regulation is warranted.

In denying the review, MOE noted that the replacement of coal-based electricity generation with natural gas will result in improved air quality and substantial health benefits. While this is true, the ECO does not believe this validates denying the review. The ECO believes that the more appropriate comparison to determine whether large natural gas facilities are appropriately categorized would have been to compare the air emissions of these projects with other Category B projects, including wind turbines, biomass and smaller scale hydroelectric facilities, each of which release little to no air pollutants.

The ECO has expressed concern in the past with MOE’s approach to elevation requests under the EAA. While the ministry apparently receives approximately 60 to 70 such requests a year, the ECO is unaware of any elevation requests that have been granted. The ECO, therefore, questions MOE’s assertion that the opportunity exists for members of the public to request an elevation through the ESP process. A request that is never granted rings as a hollow promise.

For example, in response to the proposed York Energy Centre (YEC) development in York Region, concerned citizens made multiple requests to MOE to elevate the project to an individual EA. These concerns focused primarily on the possible impacts of the proposed natural gas-fired generator on agricultural land and water, and whether the facility would conform to local and provincial planning policies. Each of these requests was denied. The ECO believes that many of the elevation requests made compelling arguments, and that if such requests were not granted in this particular case, it is difficult to imagine a situation where such requests would be approved. The ECO suggests that the problems with the ESP illustrated by the YEC provide sufficient grounds for a review of O. Reg. 116/01 and the Guide, with regard to large natural gas facilities.

The ECO also disagrees with MOE’s assertion that fundamental questions about “need” and “alternatives” are being asked under other planning processes. The ECO notes that in June 2010, the government posted a notice on the Environmental Registry (#011-0037) proposing to exempt the YEC from the Planning Act and, therefore, facilitate the development of this power plant.

Review of the Noise Criteria for Wind Farms in Rural Areas

In December 2009, MOE received an application requesting that the ministry review its noise standards for wind farms in rural areas. The applicants argued that the rural noise limits in the provincial Noise Guideline (NPC-232) are unfair to rural residents because they disregard that ambient noise levels (i.e., background noise) in rural areas are lower than in urban areas such that any noise introduced into a rural setting is more audible and consequently more disturbing to residents. The applicants also argued that noise from wind turbines contributes to detrimental health effects for those living near wind farms. They argued that turbine setbacks should be increased to protect rural residents. The applicants filed similar applications with MOE in 2006 and 2008, both of which were denied by the ministry.

Ministry Response

In February 2010, MOE denied this request, citing similar reasons to those it gave in response to the previous applications for review. MOE stated that a 2006 peer review of the Noise Guideline recommended no changes to the sound limits for stationary sources or to the sound level adjustments. The ministry asserted that the noise limits were based on scientific evidence and would ensure that its technical standards protect the environment. MOE also explained that in 2007, an independent noise expert reviewed the ministry’s Noise Guideline for Wind Farms and concluded that the ministry’s approach was scientifically sound. Likewise, MOE stood by its required 550-metre setback between wind turbines and residences, indicating that its guidelines are based on scientifically sound information and were developed in a transparent and peer-reviewed process.

MOE stated that it was in the process of consolidating its current noise guidelines and seeking information on the potential health effects of low frequency noise emissions and the regulation of low frequency noise in other jurisdictions. MOE confirmed that any new guidelines would be posted on the Environmental Registry for comment.

ECO Comment

In recent years, the ECO has received numerous complaints regarding disturbances from wind turbines. At the same time, there is public demand for the province to move towards cleaner energy sources. Clearly, a balancing of priorities is needed to preserve the health and well-being of those living near rural wind farms, while undertaking initiatives to ameliorate the air we breathe and reduce greenhouse gas emissions.

The ECO reiterates comments made in the Supplement to the ECO’s 2008/2009 Annual Report; many of the concerns over wind turbines in rural areas could be resolved by proper land use planning principles and appropriate exclusion zones for wind power development.

The ECO supports the consolidation of the various noise related guidelines into a single accessible and understandable document and urges MOE to ensure that the document is user-friendly and comprehensible. The ECO is also pleased that MOE is seeking expert advice related to the potential health effects of low frequency noise. The ECO strongly encourages the ministry to consult with affected individuals as part of its study since many of the symptoms rural residents experience may not be easily measured by scientific studies. The ECO notes that such consultation was absent in the 2006 peer review of sound level criteria.

The ECO urges MOE to review studies being conducted on the potential impacts of turbine noise and consult the public in order to re-evaluate appropriate setbacks and noise level limits for wind turbines. The ECO will continue to monitor and report on developments on this topic in future reports.

Alleged Contraventions in the Construction of the Wolfe Island Wind Project

On May 8, 2009, two Ontario residents submitted an application for investigation alleging that two companies had contravened approvals issued under O. Reg. 116/01. They alleged that the widening of a road and replacing of a culvert during construction of a wind farm on Wolfe Island had caused unaddressed harm to a provincially significant wetland (PSW).

The applicants also alleged that the local municipality contravened section 17(1) of the EAA by using “waste” materials obtained from the wind project site as fill in the road widening without approval from MOE, as well as contravened section 23(1) of the Aggregate Resources Act (ARA), by extracting aggregate from the wind project site without a wayside permit. (Wayside permits allow the extraction of aggregates from private lands in designated areas for short-term public projects of road construction.)

The application was sent to both MOE and the Ministry of Natural Resources (MNR).

Ministries’ Responses

MOE reviewed the Environmental Review Report (ERR) submitted by the proponents for the wind project and concluded that an EBR investigation was not warranted. MOE concluded that the road widening was undertaken by the municipality as part of its responsibilities to provide routine maintenance and was subject to the Municipal Class EA developed by the Municipal Engineers Association. MOE also explained that the materials used by the township in the road widening were “inert fill” as defined by O. Reg. 347 – General – Waste Management, under the Environmental Protection Act (EPA) and were exempt from the waste management provisions of the EPA and EAA. Further, MOE concluded that because the road widening was within the existing municipal right-of-way and covered by the Municipal Class EA, no approval was required for disposing of the material obtained from the wind project site. MOE also found that “the work related to the culvert replacement was done in accordance with the commitments made by the companies in the ERR.” MOE concluded, therefore, that no contravention of O. Reg. 116/01 had occurred.

Like MOE, MNR determined that an investigation was not warranted. MNR noted that a wayside permit is not required if the excavated material results from erecting a building or structure on the excavation site. MNR stated that “since the excavation is integral to the development [of] a structure (i.e., foundation of a wind turbine) the extraction activity does not meet the definition of quarry under the ARA. Consequently, subsection 23 (1) of the ARA does not apply.” In its decision response, MNR noted that in January 2009 it had received a complaint regarding possible impacts on fisheries habitat in the PSW. In response, the ministry had advised the complainant to contact the federal Department of Fisheries and Oceans.

ECO Comment

The ECO believes that MOE’s decision not to investigate was reasonable since the applicants’ allegations and evidence were based on incorrect interpretations of statutes and regulations. As MOE pointed out, municipalities have the authority under the Municipal Class EA to undertake road widenings within municipal road right-of-ways. Moreover, the ERR for the wind project recognized and approved the need for the road widening, stipulating that any damaged culverts be replaced appropriately. The ECO notes, however, that MOE failed to mention what protections, if any, are provided to PSWs by the Municipal Class EA.

While the ECO also agrees with MNR’s decision not to investigate and its interpretation of the applicability of section 23(1) of the ARA, the ECO is troubled by the ministry’s apparent lack of concern regarding potential impacts of the new culvert on water levels in this PSW. Although MNR noted that it had not observed any non-seasonal changes in the wetland’s water levels between fall 2008 and spring 2009, the ministry also indicated it had no historical information on water levels in the wetland. MNR’s lack of information about the wetland is troubling and suggests that the ministry does not sincerely embrace its responsibilities to protect PSWs.

The ECO is also disappointed with MNR’s apparent lack of concern regarding the potential loss of fisheries habitat. In our 2007/2008 Annual Report, the ECO noted the respective responsibilities of provincial ministries within the Fish Habitat Compliance Protocol and strongly advised MNR and MOE to modify the 2007 Compliance Protocol agreement so that their responsibilities to protect fish and fish habitat are met. To date, this modification has not occurred. This is particularly concerning given MNR’s own admission that it has no historical information to determine what constitutes a change in water levels in this PSW. The ECO believes that the ministry should have committed to longer term monitoring of water levels in this wetland.

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This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario.

Citing This Article:
Environmental Commissioner of Ontario. 2010. "Considering the Potential Impacts of Electricity Projects." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. .