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Appeal denied relating to Dufferin Wind’s utility pole sealing work

The Ontario Environmental Review Tribunal (ERT) has dismissed an appeal centred around the remedial utility pole sealing program completed by Dufferin Wind Power Inc. along its transmission line.

Earlier this fall, local resident Karren Wallace claimed the Ministry of the Environment (MOE) had made an amendment to Dufferin Wind’s Renewable Energy Approval (REA) license without properly consulting the public.

After holding a preliminary hearing on the matter earlier this month, the ERT dismissed Wallace’s appeal on Monday (Dec. 22). The ERT meeting scheduled to be heard in Shelburne on Jan. 5 was cancelled as well.

“DWPI does not see the dismissal of Ms. Wallace’s appeal as a victory; rather it was the only outcome that could be expected,” Dufferin Wind said in a statement released to the media. “That being said, it is important to stress to the community that DWPI is acting in everyone’s best interests in terms of the pole capping mitigation measures that were voluntarily put in place to protect the aquifers.”

The Ontario Energy Board (OEB) approved Dufferin Wind’s plan to construct a 230 kV transmission line running from its 49-turbine wind farm in Melancthon to Amaranth last year.

In August, however, MOE officials acknowledged it was possible more than 300 utility poles along the transmission line could act as conduits for surface water pollutants, such as fertilizers, to enter the groundwater supply in the event of heavy rain run-off or flooding.

As a result, Dufferin Wind voluntarily completed a sealing program, which MOE officials report consisted of applying benonite clay seals around 306 utility poles in Melancthon and Amaranth. Dufferin Wind completed the construction work to the satisfaction of the MOE in late October.

“As a precaution, we directed Dufferin Wind to implement a sealing program,” MOE spokesperson Kate Jordan told The Banner prior to the ERT pre-hearing. “The ministry has found no evidence to suggest that negative impacts to the local potable water aquifer occurred.”

During the ERT pre-hearing, Wallace argued the change to Dufferin Wind’s project required more public consultation than was undertaken. Although MOE officials said it wasn’t needed, Wallace believed the change required a formal amendment to Dufferin Wind’s REA.

The ERT, however, dismissed Wallace’s argument on Monday.

The ERT panel ruled that that none of the items contained in Wallace’s appeal described how the sealing program would cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment.

The panel also noted that since no formal order was issued by the MOE – Dufferin Wind had voluntarily agreed to seal the foundations – the ERT tribunal doesn’t have the jurisdiction to consider the case.

“The grounds of the Appellant’s appeal must relate to the Project design changes which the Director has approved,” the ERT decision stated. “The Tribunal does not have the jurisdiction to consider, in this proceeding, other approvals, orders or decisions made by the MOE.”

This isn’t the first time Dufferin Wind has been party to an ERT hearing.

After hearing an appeal of the MOE’s decision to approve the company’s 99 MW wind farm last year, the ERT dismissed a constitutional challenge to Dufferin Wind’s REA on Dec. 23 of last year.

According to that ERT panel, no evidence was presented to prove the MOE’s REA process violated local residents’ right to security under Section 7 of the Charter of Rights and Freedoms.

The tribunal also ruled no evidence to support claims of damage to animals or the environment was brought forward.

“Annoyance per se has not been proven to be a health effect, and is too vague a concept to be considered serious harm so as to engage s. 7 of the Charter,” the ERT decision in December of 2013 stated. “The constitutional challenge therefore fails on the evidence.”