The Environmental Review Tribune on Ostrander Point returns to Demorestville this week, starting at 10 a.m. Monday and at 9:30 a.m. on the following four days. Gilead Power and the Ministry of Environment will present their case Monday through Thursday. APPEC’s reply evidence is to be given on Friday. The schedule of witnesses is still undetermined.
The ERT is examining the decision to approve an industrial wind turbine project at Ostrander Point, Prince Edward County.
During March and April, ERT members Heather Gibbs and Robert Wright heard many hours of expert testimony from dozens of Prince Edward County Field Naturalists’ (PECFN) case witnesses on how nine 500-foot turbines planted in concrete bases and with wing spans of a football field will impact plants and animals and the Important Bird Area on the shoreline of South Marysburgh.
The wind development company experts countered that there will be harm but not so great as to be irreversible.
This month, the hearing changed its focus to how turbines risk human health in a case brought forward by the Alliance to Protect Prince Edward County (APPEC). Their appeal must prove serious harm to human health, though not necessarily irreversible harm.
Following is APPEC’s reports written by Henri Garand and Paula Peel for the May 27-31 hearings. The focus is almost exclusively on Dr. McMurtry’s testimony and cross-examination. Click here for previous reports on witness impacts.
Report on May 27th ERT Hearing on Human Health Appeal
The Environmental Review Tribunal heard the qualifying testimony and cross-examinations of two expert witnesses, Dr. Robert McMurtry and Dr. Robert Thorne, as well as submissions on the schedule for the remainder of the appeal.
Qualifying Examination of Dr. Robert McMurtry
APPEC lawyer Eric Gillespie sought to qualify Dr. McMurtry as an expert witness with the identical status accepted at the 2011 Erickson ERT appeal in Chatham-Kent: “a physician and surgeon with experience in healthcare delivery, healthcare policies, and health policy.”
Dr. McMurtry, a specialist in orthopedics, is an awarding-winning member of the Royal College of Physicians and Surgeons (RCPS). He is the former Dean of Medicine at the University of Western Ontario and a former assistant deputy minister at Health Canada, and was an adviser to the Romanow Commission on Healthcare. In 2012 he was made a member of the Order of Canada.
Sine 1992 Dr. McMurtry’s career has involved both his orthopedic practice and his interest in public health. Currently, he is on the board of the University of Waterloo’s Canadian Index for Well-being, which publishes an annual report rating Canada on eight criteria such as health, community vitality, and economics. He noted that the reports assess levels of stress and social engagement as indicators of well-being and reflect a bio-psycho-social model of medicine.
Dr. McMurtry, a Prince Edward County resident, had initially thought of erecting a wind turbine on his property, but he became concerned about the health impacts when he attended an APPEC meeting in August 2008 and heard Dr. John Harrison, a retired Queen’s University professor of physics, speak about turbine sound emissions and the level of noise. Since then he has spent some 7200 hours in researching, writing, and speaking on wind turbines. He has met with over 40 individuals suffering adverse health effects and reported on 53 cases to the Ontario government. He testified in two previous ERT appeals.
His peer-reviewed article “Towards a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis” was published in the Bulletin of Science, Technology and Society in 2011.
Dr. McMurtry served on the APPEC board for four years and was the founding chair of the Society for Wind Vigilance. He resigned from both boards so he could confirm his independence as a “health advocate,” one of the professional missions and roles of RCPS members.
Challenge of Dr. McMurtry
Following lengthy cross-examination and citing a number of legal precedents, Gilead Power lawyer Darrel Cruz challenged acceptance of Dr. McMurtry as an expert witness on these grounds: 1. Experience in healthcare policy was not relevant to the question of whether the Ostrander Point wind turbines would cause serious harm to human health; 2. Medical training in orthopedics was unrelated to the health effects reported by APPEC’s witnesses; 3. Past membership in APPEC indicated bias; 4. Past activities in opposing wind development were incompatible with the objectivity required of an expert witness.
Ministry of Environment lawyer Sylvia Davis added that the Erickson ERT was a different situation because APPEC was not the appellant and the Tribunal had qualified witnesses outside their areas of expertise.
Eric Gillespie defended Dr. McMurtry by saying that “healthcare policy” was clearly misunderstood. Dr. McMurtry is the only expert witness for this ERT who has published a relevant peer-reviewed article. He would be applying a health policy, his case definition, to the testimony given by APPEC’s other witnesses. As for advocacy and bias, if Dr. McMurtry’s past activities barred him, how could the other parties’ expert medical witnesses be qualified when they had written letters to newspapers, made public presentations, and been commissioned to write wind industry reports? Some witnesses financially benefited from wind development, while Dr. McMurtry had donated his money and time.
ERT Panel’s Deferral
Robert Wright and Heather Gibbs, ERT co-chairs, deferred a decision until the next morning.
Qualifying of Dr. Robert Thorne
Mr. Gillespie sought to qualify Dr. Thorne as an “expert in environmental health with knowledge of acoustics and psycho-acoustics.” Robert Thorne holds a Ph.D. from Massey University, New Zealand. His doctoral research was in intrusive noise and external sounds at the upper and lower levels of human hearing. Since 1999 he has been a principal in Noise Emissions Services, which researches hearing system devices and does acoustic consulting. He has studied wind turbine noise in two Australian and three New Zealand wind projects. At the Erickson ERT he was qualified in psycho-acoustics (the human perception of noise, or variations in sound).
Mr. Cruz and Ms. Davis questioned Dr. Thorne’s breadth of background and lack of relevant peer-reviewed publications.
The ERT panel amended Dr. Thorne’s qualification status to limit the scope of his expertise to “environmental health in relation to acoustics and psycho-acoustics.”
Schedule of ERT Hearings
The long day ended with a dispute over the witness schedule. Ms. Davis and Mr. Cruz proposed to comply with an ERT request by concluding all testimony on May 31. This would require APPEC to finish its case on Tuesday and all 11 MOE and Gilead witnesses to be heard in three days.
Mr. Gillespie protested that the schedule did not allow sufficient time for challenges, examinations and cross-examinations or for reply witnesses. Considering the time spent on the PECFN phase of the appeal, the schedule would not lead to a fair and just proceeding for APPEC but would result in an incomplete process. It would be a waste of the appellant’s and the Ontario taxpayer’s money because the same issues would have to be addressed in a new ERT appeal.
Mr. Wright asked whether any of the parties was seeking a statutory extension of the proceedings. Mr. Gillespie did not make such a motion, and Ms. Davis and Mr. Cruz said they would not consent to it. The ERT panel left the matter for further discussion the next day.
Report on May 28th ERT Hearing on Human Health Appeal
The Environmental Review Tribunal heard examination testimony of APPEC witness Dr. Robert McMurtry and the full testimony of APPEC witness Dr. Robert Thorne via video conference from New Zealand.
Qualifying of Dr. McMurtry (cont’d)
Dr. McMurtry was qualified by the ERT Tribunal as a physician and surgeon with experience in healthcare delivery, health care policies and health policy. In their finding of expert qualifications the Tribunal noted Dr. McMurtry’s distinguished record of public service, as well as APPEC’s argument that he has discussed adverse health effects of industrial wind turbines with more victims than anyone else in Canada.
Examination of Dr. McMurtry
Dr. McMurtry said his peer-reviewed article “Toward a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis” represents a logical culmination of
35 years’ experience, stimulated by a symposium held in Prince Edward County in October 2010. The intent of the article is to assist primary health care practitioners in making diagnosis of probable adverse health effects in individuals in the environs of industrial wind turbine projects.
Dr. McMurtry discussed three orders of criteria in finding probable adverse health effects, in the sequence they should be used:
First order criteria: (a) living within 5 km of turbines, (b) altered health status following the start-up of turbines, (c) amelioration of symptoms when more than 5 km from turbines, and (d) recurrence of symptoms upon return to within 5 km of turbines. Dr. McMurtry noted that all four conditions must be present.
Second order criteria: (a) compromised quality of life, (b) continuing sleep disruption, (c) increased stress, including psychological distress, and (d) preference to leave residence temporarily or permanently.
Third order criteria: otological, cardiovascular, psychological, regulatory disorders, etc. Criteria either occur or worsen following the start-up of the wind project. Dr. McMurtry clarified that the line between second and third order criteria is not hard and fast: Second order criteria (compromised quality of life, or sleep disruption, or stress) usually lead to some elaboration.
Dr. McMurtry related the three orders of criteria to three post-turbine witnesses that have testified at the hearing: Douglas Desmond (May 21), Stephana Johnston (May 22), and Janet White (May 24). Dr. McMurtry noted the importance of “cross over,” the difference in how people feel when near turbines and upon leaving the environment. Ms. White did not report improvement when away from the turbines, and Dr. McMurtry understands that she has never left the environment. It follows that the first order criteria is not satisfied.
However, Dr. McMurtry considers that, more probably than not, Mr. Desmond and Ms. Johnston suffer serious harm. Both witnesses reside within 2 km of wind turbine projects. Nothing distinguishes Ostrander Point from those projects. Based on two persons per receptor/per residence, Dr. McMurtry believes that 16 individuals will more probably than not suffer serious harm when the Ostrander Point wind project operates as approved.
Dr. McMurtry said that the medical profession has not been kept informed. Individuals who report adverse health effects have been greeted with indifference and ridicule, and at times have been threatened with exposure of their full medical history. Dr. McMurtry noted the importance of the reference to the World Health Organization (WHO) in the Erickson ERT decision (2011).
Dr. McMurtry’s further testimony was postponed till Wednesday so a scheduled video conference with Dr. Thorne could proceed.
Examination of Dr. Robert Thorne
Dr. Thorne researches the human perception of noise, or variations in sound. His report “Wind Farm Noise and Human Perception: A Review” (2013) addresses the potential for serious to moderate adverse health effects in individuals living near large turbines.
Dr. Thorne noted sleep disturbance, anxiety, and stress. Since noise from wind turbines never stops, individuals are unable to escape the noise other than through leaving their environment. They are able to get used to environmental noises such as road traffic and planes but are unable to get used to turbine noise. Dr. Thorne considers that the fluctuating characteristic of sound from turbines poses a nuisance; amplitude modulation always applies and is one of the core characteristics of wind turbines.
Dr. Thorne views the sound of turbines as unique. He described it as swishing or a steady rumble with swishes, whines, and “rumble thumps.” Sound varies as blades turn with wind direction and when blades interact with disturbed air from other turbines. The swishing sound, as well as special audible effects such as “rumble thumps,” awakens people and keeps them from getting to sleep again.
Cross -examination of Dr. Robert Thorne
Sylvia Davis, lawyer for the Ministry of the Environment, asked Dr. Thorne whether his monitoring equipment was activated by people when they were annoyed by noise. Dr. Thorne replied that his study, according to New Zealand standards, required monitoring equipment to be set up five metres from a residence and inside a residence, with sound recorded continuously. The equipment is encased and cannot be interfered with.
Ms. Davis suggested to Dr. Thorne that someone could have anxiety or annoyance but these wouldn’t cause serious harm. Dr. Thorne replied that in his experience when people reach the point of being anxious, annoyed or agitated, they’ve got serious harm. Dr. Thorne noted his study only suggests the need for more research, the same research that used to be done for roads and railways.
Ms. Davis pointed out that the WHO night-time noise guideline is not more than 40 dB(A) outside homes versus the 32 dB(A) found in Dr. Thorne’s study to cause serious health harm.
Dr. Thorne agreed with Darrell Cruz, lawyer for Gilead Power, that he did not have access to all the medical records for all 23 people involved in his study. He noted that complaints related to people being awakened at night, over months and months of wind turbine noise, and their reports of anxiety and sleep disturbance.
Re-examination of Dr. Thorne
APPEC lawyer Eric Gillespie asked Dr. Thorne about the discrepancy between the WHO guideline and his study. Dr. Thorne said the WHO health effects and sound criteria relate to noise generated by roads, traffic and the environment. Those guidelines are not meant for fluctuating sounds that are constantly on, 365 days a year in rural environments.
Mr. Gillespie asked Dr. Thorne about Mr. Cruz’s comment on not reviewing the medical records. Dr. Thorne noted the government’s Privacy Law, but he had analyzed, nonetheless, some historical health records feely provided by participants.
ERT Panel Questions
Mr. Wright asked about the turning of the turbines and the different sounds they make in different wind directions. Dr. Thorne replied that the wind usually changes direction incrementally but a small change (10% or so) causes a rumble-thump that sounds “like an old boot in a dryer.” It is quite different from the normal operating “swishing” sound. Sounds are also different when there are clusters of turbines or multiple turbines.
Report on May 29th ERT Hearing on Human Health Appeal
The Environmental Review Tribunal received an APPEC motion to extend the deadline for an ERT decision, and it heard the cross-examination of APPEC witness Dr. Robert McMurtry.
APPEC Motion for Adjournment
APPEC Lawyer Eric Gillespie made a motion to adjourn, or extend the ERT’s period for decision making, for one week, i.e., to July 10. Gilead Power’s lawyer Darrel Cruz said Gilead did not consent to the motion but would not oppose it. Ministry of Environment lawyer Sylvia Davis said that MOE consented to the motion.
The ERT panel granted the adjournment as “necessary to ensure a fair and just hearing.”
Gilead Cross-examination of Dr. Robert McMurtry
Darrel Cruz started to lead Dr. McMurtry through a witness-by-witness review of his assessment of the information each had provided. Eric Gillespie objected to the attempt to turn the ERT into a series of “personal injury” cases. ERT co-chair Robert Wright ruled that Mr. Cruz would be given a little time to establish his line of inquiry.
Mr. Cruz then focused on three witnesses and questioned Dr. McMurtry’s conclusions. Dr. McMurtry explained how he applied the three orders, or categories, of criteria in “Towards a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis.” He said they were a guide for primary healthcare givers and were not intended to replace full diagnosis, which would involve direct questioning, examination, and medical tests. However, they were a screening diagnosis such as used in orthopedics before surgery. The case definition sets forth three categories that would lead to a possible, probable, or confirmed diagnosis of adverse health effects related to wind turbines. None of the witnesses had a confirmed diagnosis because there was no testing.
Turning to the medical records for each of the witnesses, Mr. Cruz drew Dr. McMurtry’s attention to pre-existing conditions and the results of tests such as for blood pressure and blood sugar, and he asked Dr. McMurtry to consider alternative explanations. Dr. McMurtry proceeded to give some lessons in medical practice and diagnosis, and he declined to agree with the simplistic interpretations Mr. Cruz repeatedly presented.
Dr. McMurtry went on to emphasize that the case definition serves medical rather than legal purposes, though he appreciated the rigorous scrutiny it was receiving.
Mr. Cruz asked about the importance of establishing a dose relationship in terms of sound levels and frequencies. Dr. McMurtry agreed that it was valuable to have a patient’s history of exposure and subjective response to the intensity and frequency of turbine sounds.
Next, Mr. Cruz questioned the 5-km distance specified in the case definition. Dr. McMurtry said it is not a proposed setback. The distance was chosen as the environs of a wind turbine because adverse health effects spread farther as turbines increase in size and sound emissions. Since health effects have already been reported as far as 10 km away, 5 km seemed a reasonable compromise. Dr. McMurtry pointed out that the key variable is the turbine noise signal. A setback is simply a proxy for the noise level.
MOE Cross-examination of Dr. McMurtry
Sylvia Davis inquired about the origin of the case definition. Dr. McMurtry said it is based on self-reports on a questionnaire developed by Wind Voice and gathered from Ontarians living near wind projects. There was no research on the prevalence of complaints; that would require an epidemiological study such as Health Canada is undertaking. Dr. McMurtry pointed out that family physicians applying the case definition have not reported false positives, and some have contacted him with the “probable diagnosis” of adverse health effects related to wind turbines.
Ms. Davis asked whether some criteria could be side effects of prescribed drugs. Dr. McMurtry said this could be true of third order criteria but not first or second. Ms. Davis wondered about “common health complaints” related to circumstances like aging. Dr. McMurtry said the case definition was not about statistics but diagnosis.
Ms. Davis asked about the “small number” of people affected. Dr. McMurtry said the situation is the same as for diseases like lung cancer: Not everyone exposed to risk factors becomes ill. Even within families some members have adverse effects from turbines while others do not. Reports worldwide suggest that 5-40% of people experience adverse effects, the percentage varying with the distance from turbines.
APPEC Re-examination of Dr. McMurtry
Mr. Gillespie asked whether any of the day’s questioning had caused Dr. McMurtry to change his opinions. He said that with more information he now felt it is “more likely than not witnesses are suffering from industrial wind turbines.”
ERT Panel Questions
Co-chair Heather Gibbs asked about the prevalence of adverse effects due to the Ostrander Point project. Dr. McMurtry said it is not possible to establish prevalence until population studies are completed.
Testimony of Dr. Sarah Laurie
Dr. Laurie was scheduled to testify by video conference from Australia, but technical difficulties prevented it.
Report on May 31st ERT Hearing on Human Health Appeal
The Environmental Review Tribunal heard discussion and a motion on the status of APPEC’s case.
Outstanding Issues in APPEC’s Case
APPEC Lawyer Eric Gillespie confirmed that due to technical difficulties expert witness Dr. Sarah Laurie would not be testifying from Australia.
The issue now before the Tribunal was the “agreed statement of fact” on the medical records of APPEC witnesses. This would enable the “truth of the opinions” in the medical records to be accepted without the need to call physicians to testify as to their accuracy.
All counsel are in agreement that the medical records are acceptable for post-turbine witnesses up to the time that wind projects started operation. Gilead Power lawyer Darrel Cruz said that Gilead was prepared to consider the post-operational records of five witnesses but declined to consider those of the other four.
Co-chair Robert Wright directed counsel to undertake further discussions on the understanding that an extension of the hearing had already been given and APPEC’s case was supposed to close on May 30.
After a lunch-hour adjournment Mr. Gillespie reported that he wished to call a doctor and social worker to testify on the medical records of one APPEC witness, whom he considered representative of psychological harm. Both Mr. Cruz and Ministry of Environment lawyer Sylvia Davis objected on the grounds that APPEC’s case had closed and further delay would prejudice their own cases.
Mr. Gillespie presented a motion asking for leave to call two expert witnesses who would testify Monday morning by video conference.
Mr. Cruz objected that APPEC’s case did not rest on the testimony of treating physicians but on Dr. McMurtry’s review of witness statements. Ms. Davis emphasized the timelines in the Renewable Energy Approval process.
The ERT panel adjourned to weigh the arguments. Then Mr. Wright and co-chair Heather Gibbs dismissed the motion because it had not been demonstrated that the new expert testimony was sufficiently important to APPEC’s case and that the prejudice to APPEC’s case was sufficient to offset the prejudice to Gilead’s and the MOE’s due to the time constraints.
Scheduling of ERT Hearings
The ERT panel confirmed that the hearings would return to Prince Edward County for the final week, June 3-7.
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