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Township residents appeal turbine ruling to environmental tribunal  

Credit:  by David Meyer, The Wellington Advertiser, www.wellingtonadvertiser.com 13 January 2012 ~~

MAPLETON TWP. – A group opposing NextEra Energy’s Conestogo Wind Energy Centre, approved last month by the Ministry of Environment, has appealed that decision to an environmental tribunal.

NextEra wants to build a 10-turbine, 22-megawatt wind farm southwest of Arthur. Residents in the area have opposed the project almost since it was announced three years ago.

The hearing of evidence starts on Feb. 21 at 10am in the council chambers at the Waterloo Region office in Kitchener, and will continue, if necessary, on Feb. 22.

A preliminary hearing will be held on Jan. 20 at 10am at the same location to rule on requests from people for party, participant or presenter status; to identify the issues to be considered at the main hearing; and to deal with any preliminary matters.

The appeal by Preserve Mapleton Incorporated had to be filed two days before Christmas, and a delegation of angry residents came to Mapleton council seeking council’s help to fight the proposal.

Council, after meeting with representatives from county council just before the holidays, decided it would not become involved with the tribunal. It will consider seeking a judicial appeal of the project.

Mayor Bruce Whale said last week council wants to be sure there are grounds to be successful in court.

NextEra spokesman Josie Hernandez said on Monday the appeal by Preserve Mapleton Incorporated is “part of the process.”

She said, “We’ve put forth a great proposal and we’ll see what happens.”

The hearing is for the tribunal to review the Ministry of Environment director’s decision to approve the project and the hearing will consider only if engaging in the renewable energy project in accordance with the approval will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment.

John Krul, a spokesman for Preserve Mapleton Incorporated, said in an interview on Monday environmental lawyer Eric Gillespie, who has been hired by his group, believes the residents’ case can be won over health issues.

Gillespie recently sent a letter to several cabinet ministers and the MOE director of approvals stating the ministry’s press release on Dec. 16 about wind turbines is inaccurate and misleading.

Gillespie’s letter stated, “The apparent purpose of the MOE media release is to ‘educate’ the public on matters related to wind turbine noise exposure and human health. As part of its mandate, government is responsible for providing citizens with accurate and appropriate information so they can protect themselves and their health.”

Gillespie said the press release steered people to a website that states: “Is wind turbine sound harmful? The best available science shows there is no direct health risk from wind turbine noise.”

Gillespie said in the letter, “An uninformed member of the public could incorrectly interpret this MOE backgrounder statement to mean wind turbine sound cannot harm human health.”

He cited a previous tribunal hearing in Chatham-Kent (turbine opponents failed to stop that project), and noted that ruling stated, “This case has successfully shown that the debate should not be simplified to one about whether wind turbines can cause harm to humans. The evidence presented to the tribunal demonstrates that they can, if the facilities are placed too close to residents. The debate has now evolved to one of degree.”

In Australia, for example, some government members are seeking a two kilometre setback from residences. The current setback there is 1km while in Ontario the setback is 550 meters.

If the tribunal determines harm will be caused by the NextEra project, the tribunal may revoke the director’s decision, instruct the director to take such action as the tribunal considers appropriate, or alter the director’s decision, for which purpose the tribunal may substitute its own opinion.

Krul said Gillespie has hopes the coming hearing will prove more successful than the one in Chatham-Kent. Gillespie is busy fighting other cases, too.

Krul said, “He’s working on another one in southern Ontario. He figures he’s got a really good chance [of winning]. Time will tell.”

Gillespie’s report was done for Wind Concerns Ontario.

“This is very worrying,” said Wind Concerns Ontario president Jane Wilson, a registered nurse.

“They crafted that media release specifically to make this year-old report look like the last word on the issue of health and turbine noise.

“It’s out of date, and completely ignores the expert evidence from and conclusions of the Environmental Review Tribunal last year. And, it’s yet another literature review. This province has yet to officially connect with the real people experiencing real health effects out there.”

If the tribunal determines that such harm will not be caused, the tribunal shall confirm the director’s decision.

An email from the tribunal announcing the hearing stated people were notified of the hearing “because you are an owner of land near the approved renewable energy project or a person who may have an interest in this hearing.”

It also states owners of nearby lands and interested parties may seek the opportunity to participate at that hearing. They are not required to attend it, but if they wish to be involved, there are four ways to do that. They are:

– attend the hearing and observe the proceedings, but not actively participate;

– request the hearing panel to grant presenter status. If granted, the person will be able to provide testimony under oath or solemn affirmation on a given day at the hearing, and be cross-examined by all parties (those interested may also file written material in addition to giving an oral presentation);

– request participant status at the hearing. If granted, they can provide testimony at the hearing, and be cross-examined by all parties (they may also file written material at the beginning and end of the hearing); and

– request party status. If granted, they will be able to present evidence through witnesses, cross-examine witnesses and make submissions at the beginning and end of the hearing.

The MOE notice added, “Parties are often represented by legal counsel. Parties are expected to attend all hearing days. Parties are also subject to the tribunal’s costs rules.”

To participate, interested parties should visit the tribunal’s website to obtain a copy of the Rules of Practice and Practice Directions of the Environmental Review Tribunal and the relevant guide. The tribunal’s website is www.elto.gov.on.ca. For those with no internet access, a copy of the rules can be mailed upon request.

The MOE email also noted if people do not attend the preliminary hearing and identify themselves to the tribunal, it may proceed in their absence and they will not receive any further notice in these proceedings.

Any information or documents provided to the Tribunal for the case become part of the public record unless a document is marked “confidential” by order of the tribunal.

Source:  by David Meyer, The Wellington Advertiser, www.wellingtonadvertiser.com 13 January 2012

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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