Amendments to O.Reg. 359/09 (Renewable Energy Approvals)
As a key pillar in supporting the development of Ontario’s green economy, the Ontario government established O. Reg. 359/09 (Renewable Energy Approvals) under the Environmental Protection Act, on September 24, 2009. The regulation governs the approach to regulating renewable energy generation facilities based on transparency and clear, up-front provincial rules, while ensuring that the environmentt and human health are protected.
Since the regulation came into force, certain provisions of the regulation have been identified as needing further clarity or detail to bring them in line with the original intent of the regulation. The Ministry has made amendments to the regulation to strengthen and clarify those provisions. The amending regulation was filed with the Registrar of Regulations as Ontario Regulation (O.Reg. 521/10) on December 20, 2010. The regulatory amendments come into force on January 1, 2011.
Public Consultation on the proposal for this decision was provided for 45 Days, from October 07, 2010 to November 21, 2010. As a result of public consultation on the proposal, the Ministry received a total of 285 comments: 24 comments were received in writing and 261 were received online.
The Ministry considered all comments received during the comment period in response to the posting and made the following revisions to the amendments originally posted in the proposal notice:
Ontario Regulation 359/09 identified the centre of a vacant lot as a noise receptor for the purpose of determining setback distances for wind energy and other facilities. Since the implementation of the REA process and during the EBR consultation period the Ministry heard a mixed opinion on the best approach to this issue. This amendment changes this approach to make it consistent with the Ministry’s 2008 Noise Guidelines, requiring a consideration of the existing zoning by-law and typical building pattern in the area when determining a more likely location for a future noise receptor. This approach will also allow for consideration of existing municipal zoning permissions and the typical local building patterns.
Definition of noise receptor
Ontario Regulation 359/09 described a noise receptor as a location for “overnight accommodation”. This amendment changes the definition of noise receptors from “overnight accommodation” to “dwelling” to better match the originally intended interpretation of a noise receptor – locations where there is a residence with cooking, eating, living, sleeping and sanitary facilities. In response to comments received in the EBR consultation, the definition of “dwelling” was further modified by replacing the words “intended to be used” with “capable of being used”. The Ministry is also clarifying that a dwelling can be either a permanent or seasonal residence. This definition of dwelling is based on the definition in the Building Code and is premised upon the existence of the infrastructure needed to support someone living in a dwelling.
Setback prohibitions and cumulative noise assessment
The wind turbine setback prohibitions in Ontario Regulation 359/09 required proponents to consider all noise receptors at the time of construction. This approach did not reflect the fact that the surrounding conditions could change between the time of approval and time of construction. This amendment changes the time at which a proponent must consider noise impacts to surrounding noise receptors, requiring proponents to consider all noise receptors at the time they make their site plan public. Proponents then have 6 months to submit an application with the noise receptors defined in that site plan. In response to comments received, the Ministry is adding the ability of the Director to extend the expiry date of the site plan beyond the originally proposed 6 months if the proponent cannot submit an application due to circumstances outside his or her control. This requirement to consider all noise receptors at the time the site plan is made public also applies to existing projects that have made their site plan publicly available prior to the amendment coming into force.
The amended regulation also requires proponents to consider all existing and publicly known projects in the surrounding area when determining their site plan and complying with the noise setback requirements. Considering all publicly known projects in the area may require larger set backs in the noise modeling, and will ensure the Ministry can assess the cumulative impacts of the proposed project.
Public notification of meetings
Ontario Regulation 359/09 required notice of public meetings 30 days prior to the first meeting. This amendment clarifies that public notice must be made 30 days prior to the first public meeting and 60 days prior to the final public meeting. This is to allow for additional consultation where necessary and avoid the need for notice of all public meetings to be made at the very start of the process. In response to EBR comments received, the Ministry has also extended the notice period for the final public meeting from 30 days to 60 days. The 60 day period is consistent with when draft reports must be made available to the public prior to the final public meeting and will enhance public engagement.
Public notification of Renewable Energy Projects
Ontario Regulation 359/09 required written notice of a project to all landowners within 120 metres of the project location. This amendment changes the notification requirements, requiring written notice to all adjacent landowners in addition to those within 120m of the project location. This amendment applies to all renewable energy projects. In response to EBR comments and concerns about wind energy projects in particular, the Ministry has also extended the 120 metres distance to 550 metres in the case of Class 3, 4, or 5 wind energy projects to better align with the minimum setbacks from noise receptors. The extension to 550 metres does not apply to small wind or other types of renewable energy projects such as solar, and does not impact the minimum setback prohibition for Class 4 or 5 wind facilities of 550 metres from the base of a turbine to a noise receptor. These amendments will encourage increased transparency and enhanced public engagement.
Public notification of an application being made to the Director
Ontario Regulation 359/09 did not require final documentation submitted to the Ministry to be made public. This raised concerns about transparency and whether or not the proponent took into consideration the comments received during the consultation. This amendment requires proponents to post all documents that accompany a REA application on the proponent’s website, should they have one. In response to the EBR comments received, this amendment further requires the proponent to provide public notice of their application being accepted for review by the Ministry. Within 10 days of their application being posted on the EBR by the Ministry, the proponent must publish a newspaper notice. The notice must include project information, the website where final documents can be viewed, and a statement that members of the public can submit comments to the Director via the EBR. This amendment will ensure that the public is aware of an application being submitted and of the EBR comment period. This rule does not apply to Class 2 wind facilities or to bio-energy facilities located at a farm operation. These amendments will encourage increased transparency and enhanced public engagement.
Ontario Regulation 359/09 required that the Ministry’s municipal consultation form be provided to the municipality 90 days prior to the final public meeting, and draft reports be made available 60 days prior to the final public meeting. While the intent was to give municipalities an early opportunity to learn about the project, without the documentation it proved difficult for municipalities to be meaningfully engaged. This amendment requires proponents to provide a draft Project Description Report and the Ministry’s municipal consultation form to municipalities at least 30 days prior to the first public meeting. Draft reports (but not the confirmation letters from other ministries) must be provided to municipalities 90 days prior to the final meeting. In response to EBR comments the Ministry has removed the requirement to provide the municipal consultation form 90 days prior to the final public meeting to avoid unnecessary duplication. Municipal consultation is an important part of the REA process and these amendments will better ensure municipalities can make informed and timely comments on the project proposed.
Wind turbine specifications report
Ontario Regulation 359/09 requires a wind turbine specification report for Class 3, 4 and 5 wind projects. The amendment requires that the specification report must include acoustic emissions data in accordance with Canadian Standards Association (CSA) standards. As a result of EBR comments received, the Ministry has also added the terms “measurement uncertainty value” and “tonality” to the specification report requirements.
Ontario Regulation 359/09 sets out specific requirements a proponent of each type of renewable energy facility must meet prior to submitting a REA application. This had created the unintended consequence of proponents not technically meeting the requirements where they were responding to public concerns (e.g. changing the public meeting location to accommodate increased public interest). This regulation was proposed to provide discretion in prescribed instances to the Ministry of the Environment Director where the requirement was not necessary for adequate understanding of potential negative environmental effects or satisfactory consultation. In response to EBR comments received, the regulation has been changed to clarify that this discretion can only be exercised if the Director is of the opinion that it will not compromise an adequate understanding of the negative environmental effects of a project, or if it will improve public consultation.
The regulation provides proponents that have already issued a notice under section 15 of the regulation with the flexibility to use the amended regulatory requirements for applications. The EBR proposal notice proposed to have proponents declare whether they intend to use the amended requirements by submitting written notice within 60 days of this regulation coming into force. In response to EBR comments, this has been changed to allow proponents to identify if they have applied the amended requirements to their project in the publicly available documents at the time of REA application. This flexibility only applies to those that have already issued a notice so as to not unfairly impact project timelines and consultation done to date.
The EBR proposal notice indicated that these transition provisions would only apply to Part IV of the regulation (where renewable energy approval requirements where identified). In response to EBR comments, the Ministry has also clarified that the transition provisions apply to the amendments related to the definition of vacant lots and woodlands.
In addition to the concerns described above, the Ministry received a large number of submissions through the Environmental Registry that were not specifically related to the proposed amendments, but related to the Government’s position on green energy. The most common themes were related to general opposition to the Government’s green energy agenda and wind energy project development in particular. Some specific comments were related to perceived health impacts, setbacks, property values and loss of municipal decision-making authority.
The MOE Statement of Environmental Values was considered in the development of these regulatory amendments. The regulation takes an ecosystem approach and supports the principle of pollution prevention by facilitating the development of renewable energy generation which is a cleaner, less polluting source of electricity than fossil fuel-based generation. These amendments encourage increased transparency and enhanced public engagement. Amendments are in keeping with the principle of continuous improvement, as changes will strengthen and improve existing requirements.