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.
Contact:
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
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