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A letter sent by industrial wind energy developer wpd Canada to Prince Edward County crosses the line, according to Prince Edward-Hastings MPP Todd Smith.
The letter, dated Aug. 23rd, declares legal action will be taken if the County fails to issue permits wpd says it is entitled to under its REA (Renewable Energy Approvals) for the project in South Marysburgh.
On July 31, wpd served notice to the County it intends to begin installation and construction of the electrical and related infrastructure for the reduced footprint (now nine-turbine, from original 29 plan) White Pines wind project on Sunday, Sept. 10th. It submitted an application for entrance, temporary occupancy and encroachment permits and noted building permits will be sought for the foundation works, prior to commencement, anticipated to begin in October.
On Aug. 23rd, wpd sent a further letter to the municipality.
In the letter, Ian MacRae, wpd president, states the company recently received correspondence from the County stating it will not be in a position to issue permits until a jurisdictional “gap” is clarified by the IESO, (Independent Electricity System Operator); HONI, (Hydro One Networks Inc) MOECC (Ministry of Environment and Climate Change) and OEB (Ontario Energy Board).
“We know of no good faith basis on which the County may simply refuse to issue permits to wpd because of outstanding permits from the OEB or MOECC, or because of the status of wpd’s commercial contracts with IESO, or HONI, to which PEC is not a party,” stated MacRae. “There is no jurisdictional overlap or proper basis on which the County may attempt to obtain proprietary and confidential information from those commercial parties; instead, it appears to us to be a clear attempt by PEC to interfere in wpd’s contractual relations.”
MacRae reminds the County that in the past, “attempts by a municipality to obstruct a provincially-approved REA have been met with strong condemnation by the courts. wpd has successfully enforced its rights pursuant to its REA and has recovered its legal costs at both the Divisional Court and Court of Appeal” (wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes in 2015 and 2016).
The County has until Sept. 7 to reply, before wpd states it will engage legal action.
Smith has written to the Energy Minister in hopes of forcing the government to deal with the situation, noting a number of terms of the original contract haven’t been met by wpd and should be enough reason for the government to review whether the project can even go ahead.
“The project has also missed its ‘Milestone Commercial Operation Date’ by more than two years, according to data provided by the Independent Electricity System Operator (IESO),” Smith said. “In order to comply with the name plate capacity requirements outlined in the FIT contract provided for the project, the turbines would have to be larger than any turbine currently operating on land in Ontario.
“If the company does not intend to meet its nameplate capacity requirements to the IESO, then the County has raised questions that have to be answered about the status of the project and any possible transmission changes that need to be made,” said Smith in his letter. “The community deserves to know of any changes to the size and scale of the project before it is sprung on them at the last minute – in a manner which has so often occurred in the process.”
“We have seen instances in the past, such as with the Samsung agreement where the government enjoyed extensive legal rights to ensure cost savings for ratepayers and it did not pursue the kind of aggressive action to which it was entitled based on the non-compliance by the developer,” Smith said in his letter… “Your government’s prior decisions in pursuing legal action alongside the developer in the case of this project is cause for some concern but it is my hope that the government cannot support this kind of bullying behaviour from an energy company.”
Mayor Robert Quaiff called a special council meeting for Thursday, Aug. 31 at 1 p.m. at Shire Hall to consider the wpd notice of commencement of works, the Road Users Agreement and the notice of dispute filed with respect to the issuing of permits.
That meeting will begin in open session and move into closed session to discuss any potential litigation and advice that is subject to solicitor-client privilege.
South Marysburgh councillor Steve Ferguson is hosting a public Town Hall meeting in Milford on Tuesday, Sept. 5 from 7-9 p.m. to help citizens understand the implications of wpd’s plans.
“Mayor Quaiff and municipal staff will be attending as well as other knowledgeable individuals who will be able to answer questions,” said Ferguson.
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