Procedural wrangling took up most of the first day of an appeal of an approval for Florida-based NextEra Energy’s East Durham wind project.
West Grey resident Len Van Den Bosch, who is appealing the Jan. 20 approval by the Ministry of the Environment for the 23 megawatt wind project located near Priceville to the Environmental Review Tribunal, was supposed to be the first witness Monday.
However, his testimony did not begin.
“That’s good because it gives me time to get questions and that ready,” he said later.
Rozina Van Den Bosch and Gloria Morris, who have participant status, were the only two witnesses to testify during the eight-hour hearing and that came late in the afternoon.
The hearing is scheduled to sit through today then adjourn until May 5.
Throughout the day, Leonard Van Den Bosch, who was representing himself, faced a challenge by lawyers for NextEra Energy and Ministry of the Environment, who argued the form of his witness statement doesn’t conform to proper procedure.
John Terry, representing NextEra, went as far as to ask the statement be ruled inadmissible. Chairman Robert Wright denied the motion.
Van Den Bosch’s appeal relies on two main arguments.
One is that the concrete used for wind turbine bases contains heavy metals and toxic substances which, over the 20 year contract of the wind development, will leach into the aquifers posing a threat to drinking water sources for area residents.
He also alleges the same chemicals leaching into streams that pass through part of the wind project will harm the redside dace, an endangered fish species which lives in streams on his property which is 550 metres from the nearest turbine site.
“The concrete contains many toxic chemicals that can harm people and wildlife. The government of Ontario is allowing a foreign corporation to destroy the quality of our drinking water,” Van Den Bosch said in his introductory witness statement.
Terry noted the success of Van Den Bosch’s case relies on showing the concrete does contain the toxic chemicals he alleges and that there is compelling evidence from expert witnesses the chemicals will harm the redside dace.
Van Den Bosch tried without success to compel NextEra to supply the hearing with the list of ingredients for the cement for kits wind turbine bases.
He asked that the company be compelled to turn a sample of the concrete over to him for analysis.
Van Den Bosch argued without knowing what is in the concrete, he couldn’t select the proper expert witness.
The chair ruled it is up to Van Den Bosch to produce the evidence and an expert witness.
“It’s not up to them (NextEra) to prove your case,” said Wright, who acknowledged Van Den Bosch faces a Catch 22.
Van Den Bosch served notice he would proceed with his evidence under protest.
NextEra and Ministry of Environment lawyers said they would produce experts on the subject of the concrete.
Van Den Bosch went on to produce a report on the chemical analysis of a sample of concrete he had obtained from a wind turbine project and had analysed by an independent laboratory.
The report notes the sample contains cadmium, lead, vanadium and boron in amounts that exceeded allowable provincial standards.
Another 28 elements in the sample were in amounts allowed under provincial regulations but “some could represent a health concern.”
Earlier on the hearing was delayed while West Grey’s representative, Bev Cutting, left the meeting to get a couple of voice recorders after some witnesses for the appellant complained they didn’t have access to a recording of the proceedings
West Grey resident Maria De Melo said since NextEra and the Ministry of the Environment were sharing the cost of a qualified reporter who was recording the proceedings using sophisticated equipment, Van Den Bosch and other opponents deserved the same opportunity.
Wright agreed to allow Van Den Bosch to record the proceedings, but only for personal record keeping. He forbade the use of the information for broadcast purposes to or appear on social media.
De Melo and Orah Randall complained lawyers for the Ministry of the Environment and the NextEra were sitting together and could be seen consulting one another.
De Melo said it gave the appearance the ministry and the proponent were on the same side whereas she expected the MOE to represent the interests of the people of Ontario.
She wanted Wright to order them to sit apart.
He denied the request.
In his introduction Terry, the lawyer for NextEra, stressed evidence presented at the hearing by the opponents must fall within the scope of the appeal and must show the project “will cause” serious and irreversible harm to humans, animals, plants and environment.
He noted the onus is on Van Den Bosch to produce evidence from properly qualified experts.
The hearing is to resume sitting May 5-9. During that time Van Den Bosch’s only expert witness is to give evidence related to the presence of the redside dace and effects of the wind project on the endangered species along with other witnesses on behalf of NextEra.
“I have a lot of faith in my guy. He’s pretty good,” said Van Den Bosch.
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