Unloading in the evening

Unloading in the evening

Sunday, October 31, 2010

Ontario aiming to improve Conservation Authority permitting process for applicants

As part of the Open for Business initiative of the government, the Ministry of Natural Resources is proposing amendments to Ontario Regulation 97/04, (the “Content of Conservation Authority Regulations under Subsection 28 (1) of the Act: Development, Interference With Wetlands And Alterations to Shorelines and Watercourses”) under the Conservation Authorities Act. The proposed amendments are intended to simplify and streamline the permitting process that conservation authorities undertake under Section 28 of the Conservation Authorities Act through 36 individual authority regulations.

The proposed amendments are also intended to support conservation authority compliance with the timelines for decisions on Conservation Authority Act Section 28 permit applications outlined in the ‘Policies and Procedures for Conservation Authority Plan Review and Permitting Activities’ document (‘Policies and Procedures’ document) previously posted to the Environmental Registry (Environmental Registry # 010-8243). The ‘Policies and Procedures’ document forms a chapter of the Conservation Authorities Policies and Procedures Manual that guides provincial aspects of conservation authority operations. The intent of the chapter is to describe the roles of conservation authorities in municipal planning and plan review, and under the Conservation Authorities Act Section 28 permitting related to development activity and the protection of environmental interests.

The Ministry is streamlining the permitting process by:
Enabling the conservation authority to delegate its powers under the regulation including the power to make positive permit decisions to the conservation authority’s executive committee or conservation authority employees.

Extending the maximum period of validity of a permit from 24 months to 60 months.
The anticipated environmental consequences of the regulation proposal are considered to be neutral. The improvements to the permitting process are for the applicant or development proponent and do not impact what the conservation authority regulates or by what considerations.

The anticipated social consequences are positive to neutral. This proposal is intended to reduce wait times for a decision on a permit for an applicant or development proponent for straight forward and uncomplicated development activities. For larger development applications and proponents the proposal is intended to reduce frustration, cost and duplication of effort in having to re-apply for a permit where a development project may require permits or approvals from other regulatory bodies that cannot be reasonably obtained before the expiration of the Conservation Authorities Act Section 28 permit. This is intended to improve business relationship between the conservation authorities and applicants or development proponents for Conservation Authorities Act Section 28 permits.

The anticipated economic consequences are positive to neutral. The amendments streamline the permit process by delegating positive permit decisions to conservation authority staff. Currently the Conservation Authority Board which met generally monthly make all permit decisions, by delegating to staff, wait times for some permit decisions are reduced for the applicant. With the extension of the validity of a permit from 24 months to 60, this may reduce the requirement for larger development proponents to need to re-apply for a permit while waiting for other approvals from other regulatory bodies or given extended construction timelines.

All comments on this proposal must be directed to:

Chris Popovich
Great Lakes & Water Policy Section Intern
Ministry of Natural Resources
Policy Division
Biodiversity Branch
Great Lakes & Water Policy Section - Peterborough
300 Water Street
Floor 5 South
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5591
Fax: (705) 755-1957

Monday, October 25, 2010

Ontario livestock trucker fined for obstructing inspector attempting to euthanize cow

A Justice of the Peace in Cayuga, Ontario has convicted Frank DeBoer of one count of obstructing a veterinary inspector under the Livestock Community Sales Act.  The court found that DeBoer obstructed a veterinary inspector in the course of her duties under the LCSA at the Hagersville Livestock Auction. The inspector was prevented from euthanizing a lame cow that was not medically fit to be transported without undue suffering. The offence occurred on or about August 31, 2009.  Justice of the Peace Dan MacDonald sentenced DeBoer to a fine of $800 plus a victim fine surcharge of $125.

The Better Farming website has a follow-up story on this court case which raises some questions about whether or not the animal required euthanization at all.  Apparently the animal was returned to its owner, had its hoof trimmed, and was sold ten days later at auction without incident.  Read the Better Farming story at: trucker-obstructed-livestock-inspector-court-rules.

Thursday, October 21, 2010

W.Va. property owners sue over canceled gas leases

Range Resources Corp.
More than 100 northern West Virginia property owners have sued Range Resources Corp. in Federal Court accusing the company of cheating them on natural gas leases.  Range allegedly cancelled leases with landowners that offered $3,500 per acre plus a 17% royalty when gas prices began to fall in 2008.  A Range spokesman says that the leases were signed, but that all Range leases require "management approval", which was not forthcoming.  The landowners say that company land agents or "landmen" had told them that the approval was a mere formality and that they turned down offers from other companies in reliance on the Range offer.

Read about the case at: The Charleston Gazette - West Virginia News and Sports.

Wednesday, October 20, 2010

Smith v. Alliance Supreme Court Hearing Video Online

"This has been a long and perplexing case for Mr. Smith, an 82 year-old farmer from central Alberta." 

Video of the recent hearing of the Smith v. Alliance Pipeline case by the Supreme Court of Canada is available on-line at: SCC Webcast.  The video seems a bit slow, but if you start it and hit pause for a while, it might buffer enough to allow it to play smoothly from that point forward. 

Tuesday, October 19, 2010

Saskatchewan cattle producer liable for $500 fine for moving cattle without tags

In a recently released decision, the Canadian Agricultural Review Tribunal has upheld a Notice of Violation and a $500 fine against a Saskatchewan rancher who had alleged moved cattle from his farm without proper CFIA tags.  Cecil Coward testified that he is a farmer/rancher in southwestern Saskatchewan and, with his wife, have 175 cow/calf pairs.  In 2009, he transported 125 pairs to his own pastures and 50 pairs to the Shamrock Community Pasture.  He transported the 50 pairs on May 19 in two loads.  After he was home again that morning, he received a call around 11:30 a.m. from the Pasture Manager telling him that some of his cows were missing their RFID-CCIA approved tags.
Once again in this decision, Dr. Donald Buckingham takes note of the practical difficulties in ensuring 100% compliance with the tagging requirements of the Health of Animals Regulations:
Practical difficulties arise in attempting to have 100% of Canadian cattle, bison and sheep tagged with approved tags. Some animals, requiring identification pursuant to Part XV of the Health of Animals Regulations, may never be tagged, through neglect or opposition to the present regulatory scheme. Most animals, however, will be tagged, but, even among these, some will lose their tags somewhere between the birthing pen and the slaughter house floor. To minimize “"slippage"” and to maximize the number of animals that are tagged with approved tags for the full duration of the animal's life, the Health of Animals Regulations require several actors in the production chain to tag animals which are either not yet tagged or which have lost their tags. If actors inside or beyond the farm gate do not tag, as required by the Health of Animals Regulations, they too face liability when tags are missing. Owner and transporters of sheep are among those identified under the Health of Animals Regulations with such responsibilities. The Agency has the responsibility of ensuring compliance with these provisions either through criminal prosecutions or through the levying of administrative monetary penalties for violations identified in the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
For the purposes of this case, such approved tags are RFID-CCIA approved tags made of plastic bearing a front piece printed with a bar code and a back button which, when applied to an animal's ear, is meant to lock the tag into place permanently. Such a permanent locking device would permit farm-to-processor tracking and thus meet the objectives of the Regulations to establish a permanent and reliable system to track the movements of all bison, cattle and sheep in Canada from the birth of such animals on their “"farm of origin"” to their removal from the production system, either through export or domestic slaughter. Almost every system of mandatory identification is, however, subject to mechanical failure or human error.
The evidence in this case is that the system that the Regulations rely upon, or perhaps more accurately the equipment and technology to support that system, does not establish a permanent and infallible system to track the movements of all bison, cattle and sheep in Canada. The Tribunal accepts the evidence of Coward that on May 1, 2009, he tagged all of his cattle with RFID-CCIA approved identification tags. If there was human error in the application of the RFID tags on May 1, 2009, there was no evidence of it presented at the hearing. The Agency and its officials were never at the Coward farm and there is no evidence which contradicts the testimony of Coward and his wife on this point. [emphasis added]
However, Buckingham could not overlook that 10 of Coward's cows were found in the Shamrock Community Pasure without approved tags.  He found that, on a balance of probabilities, CFIA had proven that at least one and up to ten of the cows had been loaded on May 19 without a proper tag.  Unlike in the recent Habermehl case, there was an admission by Coward here that he had not verified each cow as it was loaded for travel to the pasture.  Buckingham found it likely that at least one tag fell out between the time they were applied on May 1 and the time the cattle were loaded on May 19.

As usual with the regulations, the Tribunal has no discretion once it has found that the CFIA has proven its case on a balance of probabilities:
The Tribunal finds that the Agency has, therefore, made out all of the essential elements of this case. The Tribunal has no reason to doubt Mr. and Mrs. Coward's assertions that “"due to drought + the price of cattle it is hard enough to make a profit"” (statement by Coward in his request for review) and that they are good cattle producers who agree with the tagging program for Canadian cattle. However, in light of the evidence and the applicable law, the Tribunal must conclude that the Agency has established, on a balance of probabilities, that Coward committed the violation and is liable for payment of the penalty in the amount of $500.00 to the Agency within 30 days after the day on which this decision is served.
Read the decision at: Coward v. Canada (CFIA).

Monday, October 18, 2010

OMB denies application to sever former aggregate pit land zoned agricultural

James Graham wished to create and sever from an existing 50 acre parcel of land a new estate residential lot comprising 1.24 hectares (3 acres).  Council for the Municipality of Middlesex Centre refused his Official Plan Amendment and Zoning By-law Amendment applications in that regard and the Committee of Adjustment denied his severance request. Those decisions were appealed by Mr. Graham to the Ontario Municipal Board (OMB).

The Graham family has owned 50 acres of land on the west side of Komoka Road and south of Glendon Drive in the Municipality since the mid seventies. Up until 1991 these lands were licensed to permit aggregate extraction operations below the water table. This operation resulted in creating an existing land use comprised of a series of large ponds interspersed between fragmented parcels of land. In total, approximately 16.2 hectares (40 acres) of the site consists of open water and the remaining 4.03 hectares (10 acres) of land adjacent to Komoka Road is used for residential purposes having on it a single detached dwelling.

The Applicant, Graham, testified that in or about 1991 the entire parcel was conveyed to his children. He and his wife then moved from the location. However, they wished to return to the area and create a new lot upon which to build a home. In order to effect their objective, the OMB was asked to approve an Official Plan Amendment (“OPA”).  The issue to be determined in the hearing was whether the proposal is consistent with the 2005 Provincial Policy Statement (“PPS”) and whether it conforms to the Middlesex County Official Plan (“County OP”) and the Middlesex Centre Official Plan (“Centre OP”).

The OMB found that the proposed amendment was inconsistent with the Ontario Provincial Policy Statement and the relevant Official Plans.  The Applicant argued that, since the aggregates on the property had been depleted, the land should now be available for expanded residential purposes.  However, the Board member ruled:
The land has been used for permitted agricultural uses for decades. The depletion of aggregate on the property should not, in my opinion, give rise to uses which are not permitted. ... Even if the subject property is considered unique in some respects, that uniqueness does not transcend, in any manner whatsoever, the specific policy prohibitions identified throughout these reasons. These prohibitions are unequivocal in their language and, in my view, decidedly clear in their purpose and direction. Based on all the foregoing therefore, the OPA and ZBA are not approved and Provisional Consent is not granted. Accordingly, the appeals are dismissed.
Read the decision at: Graham v. Middlesex Centre.

Friday, October 15, 2010

How much should it cost to rent land located underneath power lines?

In 1997, The Manitoba Hydro-Electric Board (“Manitoba Hydro”) leased land beneath Manitoba Hydro transmission lines to Chuck Arnason Golf and Sports Ltd. (“Arnason”). The rent was set at $6,000 per year, subject to a rent review every five years based on a formula in the lease.  In 2006, The Manitoba Housing and Renewal Corporation (“the MHRC”) announced it would expropriate Arnason’s lease, which it ultimately did in May 2009.  In early 2008, relying on an appraisal of the MHRC, Manitoba Hydro raised Arnason’s rent, for the third five‑year period, tenfold to approximately $60,000 per year. Arnason said this was wrong and sought a declaration from the Manitoba Court of Queen's Bench regarding the interpretation of the renewal formula in the lease.

The renewal formula was as follows:
3. Future rental rates shall be established by means of the following formula: The Lessor shall determine the current market value of the leased land (as vacant) using standard appraisal practices of the Appraisal Institute of Canada. … [emphasis added]
Arnason argued that the formula should be interpreted to be subject to Manitoba Hydro's continuing use and interest in the land for electrical distribution and transmission lines and communication lines.  Manitoba Hydro and the MHRC countered that "as vacant" meant there should be no consideration of the use of the land by Manitoba Hydro (which would devalue the land for the lessee and result in a lower level of rent). 

Following an in-depth analysis of the lease contract, the Court concluded that future rent was to be determined on the basis of the following assumptions:
(a) future rent is to be based on the current market value of the leased land;
(b) the current market value shall take into account, or be subject to, the leased land being a “secondary use of the land”, always subject to the primary use of the leased land being Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble;

(c) the current market value shall consider the leased land zoned as agricultural, or such other zoning that may be applicable considering Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble; and

(d) other than Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble, the leased land is vacant of any improvements.
In other words, the Court agreed with Arnason that the "as vacant" value of the land must include consideration of Manitoba Hydro's ongoing use of the land.  "As vacant" meant vacant of any improvements over and above the Manitoba Hydro improvements. 

Read the decision at: Chuck Arnason Golf and Sports Ltd. v. The Manitoba Hydro-Electric Board et al.

Wednesday, October 13, 2010

Owner liable for damages caused by pet goat

A Small Claims Court in Nova Scotia has awarded a woman $1,500 in damages after her neighbour's goat rammed her car.  At first, the goat had chased the woman's young daughter who had exited the vehicle.  When the daughter managed to get back into the car, the goat rammed the side of the car and then climbed on top of it.  The goat was being "goatsat" while the owner was away.

The Small Claims adjudicator ruled that the goat was to be considered a wild animal rather than a domesticated one for the purposes of the case:
The law divides animals into one of two categories.  The first category is wild by nature known as ferea naturae The second category would be those considered domesticated by nature and this category is known as mansuetae naturae.  I grant you it is sometimes difficult to categorize animals as wild by nature versus domesticated by nature. For example, is a cow a domesticated animal or a wild animal?  Is a Rottweiller or a Pitbull a wild animal or a domesticated animal?  These are questions that face the Small Claims Court on more than one occasion.  I think it is safe to say the goat would fit in to the first category of an animal that is wild by nature.  No doubt they can be trained to a certain extent but when you have an animal like a goat would you allow it to live in your home.  I suggest there is only so far you can go to training an animal like a goat.  The same could be said for a tiger.  While they may be well trained they are wild animals.  As such the law imposes a very high duty on the owner to prevent any kind of injury from such animals even if the owner believes in his own mind that the animal is harmless.  The owner of such an animal will be strictly liable for any injury caused by that animal, which is the case here.
Read the decision at: Pittman v. Morin.

Tuesday, October 12, 2010

Renewable Energy Approvals changes being proposed

Proposed Amendments to O.Reg. 359/09 (Renewable Energy Approvals)

Description of Regulation:

The Green Energy and Green Economy Act, 2009 was passed by the Legislature on May 14, 2009. The Act places priority on expanding Ontario’s use of clean and renewable sources of energy including wind, water, solar, biomass and biogas power. Developing these renewable resources is a cornerstone of Ontario’s future prosperity and the government’s plan to combat climate change and phase out coal. As a key pillar in supporting the development of Ontario’s green economy, the Ontario government made O. Reg. 359/09 (Renewable Energy Approvals) under the Environmental Protection Act, which came in to force on September 24, 2009. This regulation offers an approach to regulating renewable energy generation facilities that is based on transparency and clear, up-front provincial rules, while ensuring that the environment and human health are protected.

The Renewable Energy Approval (REA) process is intended to support the Green Energy initiative and the Ontario Government’s Climate Change Action Plan that will reduce greenhouse gas emissions, increase renewable energy generation and energy conservation, and create thousands of green jobs in Ontario. The REA integrates provincial review of the environmental matters that were previously addressed through the local land use planning process (e.g. zoning or site planning), the environmental assessment process and the environmental approvals process (e.g. Certificates of Approval, Permits to Take Water).

The Ministry of the Environment (MOE) is proposing to amend O.Reg.359/09 to provide additional clarity with respect to certain regulatory requirements for activities subject to the regulation. Proposed amendments will also strengthen some requirements in the regulation that have been identified through implementation of the regulation since coming into force.

The draft amended regulation is attached to this notice and plain language descriptions of the key proposed amendments can be found below. The summary descriptions below are for explanatory purposes and the attached regulation should be consulted for precise wording of proposed amendments.

Application Eligibility

An amendment is being proposed to the regulation to provide consistency with proposed amendments to the Environmental Protection Act in Schedule 7 of Bill 68 (Open for Business Act, 2010) which adds section 20.14, with respect to the submission and consideration of an application for an REA. This amendment is intended to provide greater flexibility to the Director in the processing of applications and reduce unnecessary burden where appropriate. For example, where previous activities or use of land at a proposed project location have already benefited from a planning and/or environmental regulatory process. The proposed changes are in respect of the requirements in Part IV of the regulation and do not impact Part V where setback prohibitions are located.

Proposed changes to the application eligibility provisions can be found in Section 12 of the attached draft regulation.

Definition of Noise Receptors

The definition of noise receptor is proposed to be amended to provide additional clarity as to what constitutes a noise receptor for the purposes for determining setbacks from noise receptors.

Locations that are considered noise receptors are currently defined in the regulation as the centre of buildings or structures used for overnight accommodation or those used as an educational facility, day nursery, or place of worship. Public or privately owned campsites or campgrounds are also included in the definition of noise receptors. In addition to existing buildings or structures, those that are planned for construction and have been issued a building permit under the Building Code Act are also considered to be noise receptors.

The goal of setbacks between wind turbines and noise receptors is to limit noise at buildings where long term residency is possible and likely to occur. Structures without servicing built to allow temporary or intermittent uses such as hunting, trapping or other similar uses are not intended to be considered noise receptors for the purposes of measuring setbacks.

To achieve the intended goal of noise setbacks, it is proposed that the definition of noise receptor be amended to replace the term “overnight accommodation” with the term “dwelling”. Dwelling is also proposed to be defined in the regulation to provide additional clarity as to what type of buildings or structures would be considered a noise receptor.

Proposed changes to the definition of noise receptors can be found in Section 1 of the attached draft regulation.

Vacant Lots

Setbacks in the regulation are also intended to protect future use of vacant land where that land is zoned to allow construction of potential noise receptors (e.g., a future residence). For the purposes of measuring setbacks from vacant lots in Sections 54 and 55 of the regulation, the potential future noise receptor is currently considered to be the centre of the vacant lot if no site plan approval or building permit has been issued. This approach is not entirely consistent with normal building practices on vacant lots in that a future building would normally be constructed near an existing road to facilitate access and servicing, rather than in the centre of the vacant lot.

It is therefore proposed that the identification of noise receptors on vacant lots be changed from the centre of the lot to a location where a building would normally be located having regard to the existing zoning by-laws and the typical building pattern in the area. This definition would be consistent with the Ministry’s Noise Guidelines for Wind Farms, dated October 2008. It is proposed that the 550 metre minimum setback would be measured from the base of the wind turbine to a location on the zoned vacant lot identified in the Renewable Energy Approval, having regard to the existing zoning by-laws and the typical building pattern in the area.

Proposed changes to the identification of noise receptors on vacant lots can be found in Sections 1, 54, 54.1 and 55 of the attached draft regulation.

Noise Receptor Setback Prohibitions

The identification of noise receptors for the purpose of measuring setbacks from proposed wind turbine locations would normally take place during the project planning phase. Identifying noise receptors is an important component of completing studies and consultations required as part of an application. However, the prohibition for minimum setbacks from noise receptors is currently tied to the date of construction of the project. This may result in uncertainty for proponents and the public in cases where a noise receptor is established within the minimum setback distance from a proposed project after the proponent has submitted an application but before construction has commenced.

It is proposed that the regulation be amended to confirm that the identification and consideration of noise receptors is required earlier in the planning stages of a project, and not at a later stage such as after an application has been submitted. Proposed amendments in sections 54 and 55 of the regulation would require proponents to consider only noise receptors that existed at the time of application. Any noise receptor that is established within the minimum setbacks of a project for which an application has already been submitted would not be considered for the purposes of complying with the setback prohibitions.

It is also proposed that proponents have the option to issue a draft site plan with the proposed location of wind turbines, and that consideration be given only to those noise receptors that existed at the time the draft site plan was issued. To ensure that proponents proceed with their projects in a timely manner, it is proposed that the draft site plan expire 6 months after its publication unless the proponent submits an application for an REA. The 6 month timeframe could not be extended and a site plan for the same project could not be republished. A proponent would also have to secure property rights or some other right to the land sufficient to construct the wind turbine before the draft site plan could be published.

These proposed amendments will provide additional certainty to proponents in planning wind projects, and provide clarity to the public regarding how noise receptors must be considered by wind project proponents.

Proposed changes to noise receptor setback prohibitions can be found in Sections 54, 54.1 and 55 of the attached draft regulation.

Noise Setback Matrix

Wind project proponents are required under Section 55 of the regulation to take other existing and proposed wind turbines into account when siting new turbines. Currently they must consider other wind turbines with sound power level equal to or greater than 102 dBA within a 3 km radius of a noise receptor that have: a) been constructed; b) obtained an REA or Certificate of Approval (C of A); or, c) have an application for an REA or C of A posted on the Environmental Registry. However, proponents are not required to consider other nearby wind facilities that are being planned concurrently unless they have submitted an application for an REA or C of A. This may result in uncertainty for wind project proponents who are assessing the combined noise from wind turbines in their project area during the project planning stage.

It is proposed that the regulation be amended to require proponents to also consider wind turbines with sound power level equal to or greater than 102 dBA within a 3 km radius of a noise receptor that are being planned but not yet approved and have been identified in any of the following: a) an application for an REA; b) a draft site plan that is published in accordance with a new section 54.1 if it is still valid and has not expired; or, c) a notice of completion published in accordance with O.Reg.116/01. This proposed amendment will provide additional clarity to proponents and the public regarding the requirements for wind project proponents to consider other wind turbines being planned concurrently in the same area.

Proposed changes to the noise matrix requirements can be found in Section 55 of the attached draft regulation.

Odour Receptors

To ensure consistency with the definition of noise receptors, it is proposed that the definition of odour receptors also be amended to replace the term “overnight accommodation” with the term “dwelling” to clarify what type of buildings or structures would be considered an odour receptor. The proposed definition of dwelling would continue to apply for the identification of odour receptors.

Similar to proposed changes regarding noise receptor setback prohibitions, it is proposed that the regulation be amended to confirm that the identification and consideration of odour receptors for the purpose of measuring setbacks is required earlier in the planning stages of a project, and not at a later stage such as after an application has been submitted. Proposed amendments would require proponents to consider only odour receptors that existed at the time of application.

Proposed changes to the definition of odour receptors can be found in Section 1 of the attached draft regulation. Proposed changes to the odour receptor setback prohibitions can be found in Sections 47, 48 and 51 of the attached draft regulation.

Notification Requirements

A number of amendments are proposed to clarify and strengthen the regulatory requirements regarding the distribution of notices of projects and public meetings in order to ensure that interested parties are made aware of proposed renewable energy projects and the occurrence of public meetings required under the regulation.

Proposed changes to notification requirements can be found in Section 15 of the attached draft regulation.

Consultation Requirements

A number of amendments are proposed to clarify and strengthen the regulatory requirements regarding mandatory consultations with the public, Aboriginal communities, municipalities and the Niagara Escarpment Commission. The amendments are related to broader circulation of draft reports by the proponent and availability to the public.

Proposed changes to consultation requirements can be found in Sections 16, 17, 18, and 32 of the attached draft regulation.

Protected Properties, Archaeological and Heritage Resources

The regulation currently requires consideration of whether a renewable energy project is on a protected property under Section 19, may or will have an impact on an archaeological or heritage resource under Section 20, or whether the characteristics of the project location require completion of an archaeological assessment under Section 21. Section 20 also requires that if a proponent determines that there is no possibility of impact on an archaeological or heritage resource then they must submit a written summary of how they came to that determination; however, Sections 19 and 21 currently do not require a written summary to be submitted in similar circumstances.

It is proposed that Section 19 be amended to include a requirement for a proponent to submit as part of their application a written summary demonstrating how they came to the determination that their project location was not on a protected property as described in the Table in Section 19. It is also proposed that Section 21 be amended to include a similar requirement for a written summary if a proponent determines that the characteristics of the project location do not require completion of an archaeological assessment. These proposed amendments mirror the requirement that currently exists in Section 20(2) with respect to consideration of archaeological and heritage resources. The purpose of the amendments is to ensure that proponents demonstrate how they have complied with the requirements in Sections 19 and 21.

Another proposed amendment to Section 19 would require a proponent to obtain written confirmation from the corresponding person or body listed in the Table of that section that it agrees with the proponent’s conclusion that, while the project location is on a protected property, the project will not impact it.

Proposed changes to archaeological and heritage resource requirements can be found in Sections 19 and 21 of the attached draft regulation.

Natural Heritage Assessment and Water Assessment

The regulation currently requires proponents to conduct a physical site investigation for the purposes of completing a natural heritage assessment under Section 24 and a water assessment under Section 29. The requirement to conduct a physical site investigation requires physical access to land within 120 metres of the project location; however, there may be instances where a proponent cannot reasonably access a parcel of land within 120 metres of the project location. It is proposed that this requirement be amended to require a physical site investigation where access is possible and an alternative site investigation where it is not possible despite all reasonable efforts.

Proposed changes to natural heritage assessment and water assessment requirements can be found in Sections 26, 27, 28, and 31 of the attached draft regulation.

Bird and Bat Monitoring Plan

It is proposed that the regulation be amended to include a requirement for proponents of Class 3, 4 and 5 wind facilities to complete an environmental effects monitoring plan for birds, bats and other species identified in guidance established by the Ministry of Natural Resources (MNR). This plan would be prepared in accordance with evaluation criteria or procedures established by the MNR and submitted to MNR along with the natural heritage assessment in order to obtain the confirmation from MNR required in Section 28 of the regulation.

Proposed changes to species monitoring plan requirements can be found in Sections 23.1 and 28 of the attached draft regulation.

Reporting Requirements

A number of amendments are proposed to the contents of reports listed in Table 1 of the regulation. The proposed changes seek to ensure that the Ministry is provided with complete and accurate information needed for the timely review of applications. Some changes are also intended to correct errors in the application of some reports in column 3.

Proposed changes to the reporting requirements can be found in Table 1 in the attached draft regulation.

Class 2 Wind Facilities

The regulatory requirements for Class 2 wind facilities (>3 kW and <50 kW) are less than the requirements for Class 3, 4 and 5 wind facilities. Currently, only a project description report (PDR) must be submitted to the Ministry as part of an application for an REA for a Class 2 wind facility. It is proposed that, in addition to the PDR, a Class 2 wind specifications report also be required as part of an application to provide the Ministry with additional technical information to review in consideration of the application. The report would include manufacturer’s specifications available, sound power level, and a site plan that identifies the location of noise receptors within a 1km radius from each turbine. This additional information will assist the Ministry in ensuring the proposed facility will comply with noise limits and standards. The proposed content of the Class 2 wind specifications report is a lesser level of detail than the wind specifications report required for a Class 3, 4 or 5 wind facility given the reduced size, complexity and potential environmental impact of small scale wind technologies.

Proposed changes to Class 2 wind facility requirements can be found in Table 1 of the attached draft regulation.

Solar Facilities

It is proposed that the name plate capacity thresholds for solar facilities be changed from 10 kW to 12 kW in order to allow small solar technologies with input name plate capacity greater than 10 kW but with output capacity of less than 10 kW to remain exempt from the requirement to obtain an REA. These small solar facilities are eligible for the government’s micro feed-in tariff (FIT) program because they have an output of less than 10 kW but due to inverter losses the name plate capacity of the panels is often in the order of approximately 11.4 kW. This inconsistency could result in microFIT-eligible small solar facilities having to obtain an REA which was not the intent of the regulation. The proposed amendment will ensure that small scale solar facilities continue to benefit from reduced regulatory burden.

Proposed changes to name-plate capacity of solar facilities can be found in Section 4 of the attached draft regulation.

Other Changes

The Ministry is proposing a number of other minor amendments, technical changes and grammatical corrections that are not described in detail in this notice. Please refer to the attached regulation for a list of all of the proposed amendments that are currently being contemplated by the Ministry.

Transition Provisions

Proposed amendments to Parts I, II, III and V of O.Reg.359/09 are proposed to take effect when the regulation in made and would apply to any project or proposed project for which an REA is required. Proposed amendments to Part IV and Table 1 will also take effect when the regulation is made; however, if a proponent has published a project proposal notice before the amendments take effect, the requirements in Part IV and Table 1 prior to being amended will continue to apply. This will ensure that a proponent that has begun work to satisfy the requirements of Part IV and Table 1 will not have to redo work to satisfy new proposed requirements in Part IV and Table 1. However, it is proposed that a proponent could notify the Director within 60 days of the regulation being made that they wish one or more of the new sections in Part IV and Table 1 to apply to their proposed project.

Proposed transition provisions for the regulatory amendments described in this proposal notice can be found in Section 11.1 of the attached draft regulation.

Purpose of Regulation:

The purpose of this posting is to inform the public and interested stakeholders of proposed amendments to Ontario Regulation 359/09 (Renewable Energy Approvals), and to solicit comments on the proposed amendments.

Other Information:

More information on the Renewable Energy Approval can be found at http://www.ene.gov.on.ca/en/business/green-energy.

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting October 07, 2010. If you have any questions, or would like to submit your comments, please do so by November 21, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to November 21, 2010 will be considered as part of the decision-making process by the Ministry of the Environment if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0181.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Other Public Consultation Opportunities:

Regulatory Impact Statement:

The proposed amendments will ease the overall regulatory burden for proponents of renewable energy projects subject to the regulation. The proposed changes will provide enhanced clarity with respect to the regulation’s requirements and therefore assist proponents in meeting the requirements. Some proposed amendments to the notification, consultation and reporting requirements may increase work for proponents but will contribute to more robust consultations and the submission of complete applications and therefore assist proponents meet the requirements of the REA process in a more timely manner.


All comments on this proposal must be directed to:

Suchaet Bhardwaj
Senior Program Advisor
Ministry of the Environment
Environmental Programs Division
Program Planning and Implementation Branch
135 St. Clair Avenue West
Floor 4
Toronto Ontario
M4V 1P5
Phone: (416) 325-7893

Monday, October 11, 2010

B.C. Oil and Gas Commission touts its new legislation

British Columbians now have a new Oil and Gas Activities Act, designed to streamline and expedite the regulatory process required for oil and gas projects in the province.  The Oil and Gas Commission (OGC) says about the Act:
The Oil and Gas Activities Act (OGAA) reflects a shift toward the future of oil and gas activity in British Columbia. Technological advances, interest in unconventional gas, and increased social and environmental expectations are driving the industry forward. In response, the province developed a new regulatory framework. A process that started with extensive consultations with communities, landowners, First Nations, environmental groups and industry ended with streamlined, enhanced legislation reflecting the needs of the people, environment, industry and government.   
In governmental newspeak, the new Act sounds like a way to speed up the approval of new energy projects in B.C. The OGC's primer on the new Act is available at: OGAA Primer.  The Act as it looked when it passed third reading in the Legislature is available at: 2008 Act.  I will post a link to the final version of the Act when it becomes available on the web.

Thursday, October 7, 2010

National Energy Board "Participant Funding Program" released

The National Energy Board (NEB) has now released details of its "participant funding program" that will apply to the following oral hearing processes:
•Certificate of public convenience and necessity for a pipeline (section 52);
•Exempting orders respecting pipelines (section 58);
•Certificate of public convenience and necessity for an international or designated interprovincial power line (subsection 58.16);
•Abandonment of an international or designated interprovincial power line (subsection 58.34);
•and Abandonment of a pipeline (section 74). 
Interested parties, including landowners, will be able to apply to the Board for funding of costs (up to 75% may be paid in advance, with the balance paid following the oral hearing).  However, only a limited amount of total funding for any single hearing process will be made available depending on the importance of the project as determined by the Board.  Also, the amount the Board may make available for funding will depend on the amount of money directed to the program by the federal government. 

Parties who wish to receive funding must enter into a contribution agreement with the NEB.  If a project application is subsequently withdrawn by a company, the party receiving funding must return all funds into the program except funds which have been irrevocably committed. 

It remains to be seen how this program will operate in practice.  Unlike cost recovery mechanisms available in some provinicial systems, landowners will not necessarily be entitled to recover their reasonable costs.  Instead, they will only be able to recover a share of whatever limited funding is made available for a specific hearing process.  Also, as opposed to provincial cost recovery mechanisms, the NEB funding will come from the government rather than being charged to the company making the application. 

Read about the program in the NEB Participant Funding Program Guide.

Wednesday, October 6, 2010

Smith v. Alliance case heard by Supreme Court of Canada

The Supreme Court of Canada heard an appeal by Vernon Smith yesterday against a decision of the Federal Court of Appeal related to pipeline landowner compensation for damages.  The Federal Court of Appeal had overturned an arbitration decision that awarded Smith his unpaid costs of a court case that had been started and lost by Alliance Pipelines.  According to the Supreme Court's website, a decision in the case is under reserve or has been made but with reasons to follow.  My previous posts on this case are at:
July 2010; April 2010; January 2010.

Tuesday, October 5, 2010

World's largest solar farm completed at Sarnia, Ontario

CBC News - Technology and Science - Enbridge completes Sarnia solar farm

Click on the link above to read the CBC News story about the completion of an 80 MW solar project at Sarnia, Ontario. Originally built as a 20 MW facility by First Solar Inc. under the Renewable Energy Standard Offer Program (RESOP) from the Ontario Power Authority (OPA), the operation was upgraded by Enbridge Inc. and will continue to be operated by First Solar. The farm consists of 1.3 million panels covering 950 acres. 

Under the new Feed-in Tariff (FIT) program that replaced RESOP, the OPA can no longer enter into contracts for energy generated by ground-mounted solar facilities greater than 100 kW in size that are located on Class 1 and 2 agricultural soils and specialty crop areas.  While larger projects are permitted on Class 3 soils, no more than 500 MW in total in Ontario are permitted.  The prohibition on use of farm land will remain in place until further regulations are prescribed under the Electricity Act, 1998.

Monday, October 4, 2010

Pennsylvania Environment Department orders water pipeline for residents affected by natural gas contamination

The Department of Environmental Protection (DEP) in Pennsylvania plans to build an $11.8 million water pipeline to supply water to homeowners whose wells were contaminated by drilling operations in the Marcellus Shale.  The pipeline would supply water to 18 residences at a cost of $650,000 per home, and the cost will be charged to the Texas driller Cabot Oil & Gas Corp.  Cabot is calling the decision "unfounded, irrational, and capricious", but the DEP says that the waterline is the only certain remedy for homeowners with contaminated wells. 

In advance of the decision by the DEP, Cabot took out ads in the Susquehanna County region addressed to the "Citizens of Pennsylvania" denying it caused the pollution and saying that it will fight the allegations.  Cabot says it was not responsible for natural gas that migrated into the homeowners' wells.  The residents have sued Cabot and declined to accept having new wells installed on their properties as they no longer trust water coming from the local aquifer. 

The DEP contends that it has collected "overwhelming" evidence that Cabot's gas wells were poorly constructed and were the source of major leaks of gas. 

Saturday, October 2, 2010

Energy Pipeline News: the difficulty in obtaining inspection records from the regulator

Noel Griese of the Energy Pipeline News has commented on a recent Detroit Free Press article about the difficulty the paper had in obtaining inspection records from the federal pipeline regulator (PHMSA) in the United States.  The Free Press was looking into inspection records for Enbridge pipelines following the major leak into the Kalamazoo River.  Read Noel Griese's post at: Energy Pipeline News.

Friday, October 1, 2010

Quebec company found to have transported a "compromised pig" in violation of Health of Animals Regulation

The Canadian Food Inspection Agency (CFIA), alleged that Trans-Porcs B.M. inc. (Trans-Porcs), on March 12, 2008, in Yamachiche, Quebec, transported a compromised pig that could not be transported without undue suffering during the expected journey, contrary to paragraph 138(2)(a) of the Health of Animals Regulations.  Trans-Porcs challened the notice of violation that was issued by the CFIA before the Canadian Agricultural Review Tribunal at a hearing in Drummondville, Quebec.  On review of the case, Dr. Donald Buckingham, Chairman of the Tribunal, found that the CFIA had proven all necessary elements of the violation on a balance of probabilities.

The following evidence was not contested at the hearing:
•On March 12, 2008, Trans-Porcs loaded 223 pigs, including a compromised pig, transported the pigs for more than one hour, and unloaded them all at the Atrahan Transformation inc. abattoir at or about 1:30 p.m.
•The compromised pig was lame, bore the owner's tattoo (No. 12066), was placed in the holding pen after unloading and was given a holding tattoo (No. S-14-1). The pig was examined ante mortem. The pig was euthanized, and a post mortem examination was conducted on the carcass.
The contested evidence in this case was in answer to the following question: "What was the condition of the compromised pig before transportation, during transportation and upon arrival at the abattoir on March 12, 2008?".

For there to be a violation of paragraph 138(2)(a) of the Health of Animals Regulations, the CFIA must establish the following elements (from an earlier case called Doyon):
1. that the animal in question was loaded (or was caused to be loaded) or transported (or caused to be transported);

2. that the animal in question was loaded onto or transported on a railway car, motor vehicle, aircraft or vessel;

3. that the cargo loaded or transported was an animal;

4. that the animal could not be transported without undue suffering;

5. that the animal suffered unduly during the expected journey ("voyage prévu" in French);

6. that the animal could not be transported without undue suffering by reason of infirmity, illness, injury, fatigue or any other cause; and

7. that there was a causal link between the transportation, the undue suffering and the animal's infirmity, illness, injury or fatigue, or any other cause.
In finding that a violation had been committed, Dr. Buckingham's ruled:
In this case, the pig was not transported without undue suffering. Upon the pig's arrival at the abattoir, the animal was observed to have grade 4 lameness. As it is unlikely that the pig had already been suffering from grade 4 lameness on the farm of origin (given that it had walked up the truck ramp), that deterioration resulted from transportation to the abattoir. If the pig had already been suffering from significant lameness on the farm of origin, according to the Court's reasoning in Cèdres, the Tribunal finds that it was very unreasonable to have transported the pig, since the industry prohibits producers and transporters from transporting a pig in such a condition. It is assumed that transporting an animal in such a condition will undoubtedly cause undue suffering. However, if the deterioration in the pig's condition occurred during transportation, the Court's reasoning in Doyon would apply, and the Tribunal is satisfied that the Agency has proven elements 4, 5, 6 and 7, as required in Doyon, above.
The violation resulted in a fine of $2,200 to Trans-Porcs, but Dr. Buckingham did note at the end of his decision that the violation is not a criminal offence:
However, the Tribunal wishes to inform Trans-Porcs that this violation is not a criminal offence. After five years, Trans-Porcs will be entitled to apply to the Minister to have the violation removed from its record, in accordance with section 23 of the Agriculture and Agri-Food Administrative Monetary Penalties Act:
23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from
(a) where the notice of violation contained a warning, the date the notice was served, or

(b) in any other case, the payment of any debt referred to in subsection 15(1),

unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.
Read the decision at: Trans-Porcs B.M. v. Canada (CFIA).