Public has “no right” to know what’s in wind power contracts: IESO lawyer

Citizens packed a courtroom in Belleville Monday: too bad they were unaware they have no rights [Photo: Wind Concerns Ontario]
January 31, 2018

 

There were so many people attending the hearing at the Ontario Superior Court in Belleville Monday that there was a half-hour delay in the proceedings so a larger courtroom could be found.

That was just the beginning of the changes that day, as the Alliance to Protect Prince Edward County (APPEC) took on the Independent Electricity System Operator (IESO) over its awarding a new contract to Germany-based wind power developer wpd Canada and the White Pines project. The power project was diminished from 29 to 27 then nine turbines in various citizens’ appeals, and it was thought since the power developer had not only missed all its milestones stipulated in the contract it also now failed to meet the 75% of power required, the contract might be null and void.

That’s where things changed.

The public has “no right” to know what’s in multi-billion-dollar contracts that are the result of public policy. Not in Ontario. Not where “wind is green, wind is good” and citizens’ voices don’t matter, nor do communities, or democracy. No: instead, the IESO simply cut the developer a new contract. And the public? You have “no right” to know anything.

Our favourite quote of the day came from APPEC lawyer Eric Gillespie who said, “The contract [for White Pines] was made public, but some pretty important changes weren’t.”

Here is a formal report by APPEC.

APPEC Report on

APPEC v. IESO and WPD

Belleville Superior Court

January 29, 2018

Mr. Justice Kershman presided over the hearing of final submissions at the Belleville Courthouse.  The turn-out was excellent with Mayor Quaiff, Councillor Ferguson, Wind Concerns Ontario President Jane Wilson and about 75 County residents attending.  In fact, the Court Clerk was forced to find a larger courtroom to accommodate the crowd.

APPEC Final Submissions

Eric Gillespie began by pointing out that this case raises broader public policy issues of access of information from the IESO.  On June 12, 2017 APPEC contacted the IESO for information about the status of WPD’s FIT contract.  The IESO indicated in its reply that it could not disclose this information, citing confidentiality.  Mr. Gillespie argued that this information should have been disclosed for the following reasons: (1) the IESO describes the FIT program as a standardized, open and fair process; (2) APPEC and Ontario communities are affected by the FIT Program; and (3) the information APPEC was seeking, and the IESO withheld, could not have been confidential at all as it was ultimately disclosed to the Court in November 2017.

Mr. Gillespie clarified that contrary to what the IESO contends, this is not about how to interpret clauses in the FIT contract.  The clauses are negligent misrepresentation, in that APPEC was led to believe that the generation capacity of the White Pines project could not go below 75% of the generation contracted for in 2010, when the FIT contract was signed.  The central issue for APPEC is that information that became known to the IESO was not made publicly available.  The IESO had a choice, when it became clear that WPD could not meet the 75% condition in the contract.  It could have said that things had changed, that WPD’s FIT contract would need to be amended, that WPD was in default of contractual milestone dates, etc.  Mr. Gillespie noted that it’s what the IESO and WPD did with their choices that has brought us here today.  WPD’s first public announcement that it was proceeding with the 9-turbine project was September 21, 2017.  The IESO informed Councillor Ferguson that it had agreed to amend the FIT contract on October 12, 2017.  APPEC only obtained the information it had sought in June when the IESO disclosed it to the Court on November 30.

IESO and WPD Closing Submissions and APPEC’s Reply

Alan Mark, IESO’s legal counsel, criticized APPEC’s “assumption” that it has some right to insert itself into the contractual relationship between the IESO and WPD.   Mr. Mark stated that any rights are owed exclusively to WPD, the IESO’s contractual partner; there’s nothing in the statutory framework that gives APPEC “the right to anything”. Mr. Mark went on to suggest that a contract is just a statement at a point in time with no guarantee that it won’t change in the future and members of the public don’t need to know about that either.   Mr. Mark added that “with all respect to APPEC, APPEC is just made up of members of the public that feel strongly about wind power projects.”

Mr. Mark indicated that the IESO has made no representations to APPEC at any time, so it could not have made a negligent representation. When Judge Kershman asked whether APPEC’s allegation is that the IESO made a representation in 2010 that the Project would not be able to proceed if the project’s generation capacity fell below 75%, Mr. Mark responded that this isn’t the case APPEC is making.

Mr. Mark noted a statement in the Skypower Decision that the FIT contract is a bilateral commercial contract between two parties. Mr. Gillespie noted that in the same Skypower Decision, Judge Nordheimer rejects this characterization of the FIT program, and says that the suggestion that this is a commercial nature entirely and not a matter of public policy is fictional.

Mr. Mark said that APPEC had all the information it needed and ignored this information at its peril.  In reply, Mr. Gillespie asked why APPEC would base its ERT appeal rights on a complete unknown, i.e., would the IESO amend the FIT contract, or not?

Patrick Duffy, legal counsel for WPD, also took up the argument that APPEC had no right to insert itself into the contract between the IESO and WPD. Mr. Gillespie replied that if that was so, then why did the IESO make FIT contracts available on its website for public viewing in the first place?  Mr. Duffy stated that the terms “open” and “transparent” only apply to FIT Program Applicants, not to members of the public to which Mr. Gillespie replied that we still have not been told what there was about the information APPEC sought that was privileged.  Mr. Duffy noted that  FIPPA (Freedom of Information and Privacy Act) is the law that applies to disclosure.  However, Judge Kershnan reminded Mr. Duffy that Mr. Gillespie had already noted in his submissions how long the FIPPA process takes.  Mr. Gillespie also noted that there was nothing in any of the other Party’s materials about FIPPA.

Mr. Gillespie concluded by noting the right of County residents to natural justice and procedural fairness. The IESO has not told the whole story to the community that will be affected by the White Pines wind project.

Justice Kershnan thanked the Parties and stated that he would reserve his decision. The hearing was adjourned at about 5:30 p.m.

***

To learn more, or to donate to APPEC’s legal fees, please visit their website here: https://appec.wordpress.com/

Ontario Environment Ministry sued: failure to protect public from industrial wind turbine noise alleged


 

Four community groups say the Ministry of the Environment and Climate Change knows its wind turbine noise regulations were inadequate, so they changed them. Why now, are the five newest projects not subject to stricter regulation? Hundreds of people will be exposed to noise emissions from turbines that will likely be non-compliant as soon as they begin operating.

News provided by

Eric K. Gillespie Professional Corporation


TORONTO, Jan. 25, 2018 /CNW/ – A judicial review application has been filed against the Ministry of the Environment and Climate Change (“MOECC”) in the Divisional Court in Toronto. The application alleges Ontario regulations and directives limit the amount of noise any residence in the province should have to tolerate from a wind project. Modelling is used to predict these impacts.

The MOECC has admitted previous guidelines resulted in underestimates of the noise at nearby homes. However, without any evidence that this was necessary, the MOECC has allowed companies promoting at least five large-scale wind projects to ignore new government guidelines. The result is hundreds of Ontario residents near these planned turbines could be living next to turbines that produce noise out of compliance with government regulations. If these projects, located in various parts of Ontario, were required to comply with the new guidelines, it is estimated up to three-quarters of these turbines would have to be relocated or removed.

“The government knows the modeling done by wind companies is wrong. However, the government now doesn’t require them to follow the proper process. It’s not surprising people from across Ontario are joining together to vigorously oppose this,” said Eric Gillespie, legal counsel for the court applicant.

“We do not take this step lightly,” commented Bonnie Rowe, spokesperson for Dutton Dunwich Opponents of Wind Turbines, applicant in this suit. “But we estimate that these five proposed wind power projects will be out of compliance with noise levels as soon as they go on-line. In the Dutton Dunwich case, the majority of the proposed turbines, will likely produce noise over the MOECC maximum allowable levels. That is just unacceptable, especially to the many citizens living nearby, who will be forced to endure that noise. We appreciate the collaborative efforts in this application, of citizens in the other affected communities in Ontario – North Stormont, La Nation, and Wallaceburg.”

SOURCE Eric K. Gillespie Professional Corporation

For further information: Eric Gillespie, legal counsel, 416-436-7473 (phone/text); Bonnie Rowe, Dutton Dunwich Opponents of Wind Turbines, 519-639-5415 (phone/text); Margaret Benke, Concerned Citizens of North Stormont, 613-558-9236 (phone/text); Julie Leroux, Save the Nation, 613-307-1499 (phone/text); Violet Towell, Wallaceburg Area Wind Concerns, 519-350-1829 (phone/text)

Wind turbine collapse raises safety concerns

The wind industry says such events are rare: but accident statistics from Europe say, they’re not

January 20, 2018

The collapse yesterday of a wind turbine in South Kent, in Chatham-Kent made for stunning photographs and multiple news stories (even in Toronto!).

The Ministry of the Environment and Climate Change is said to be monitoring clean-up of the turbine site, to make sure the hazardous chemicals in the turbine are disposed of properly; the Ontario Ministry of Labour is also said to be looking into the incident.

Meanwhile, amid claims of how rare the incident is, the U.S.-based owner/operator is investigating the cause.

The wind power trade association and lobbyist, the Canadian Wind Energy Association (CanWEA) weighed in, saying Canada has thousands of wind turbines and such incidents are rare.

But the collapse of the CK turbine has raised questions. Especially when several other news stories appeared the same day such as a report from an international website that monitors wind turbine accidents which says many countries are considering new setbacks for safety. And, a report from the U.S. notes that wind turbines require more maintenance as they age: soon, the average age of U.S. turbines will be 11 years.

Why was the collapse not detected by the operator? It is rumoured that someone passing by saw the destroyed turbine and reported it.

What sort of maintenance is mandated for these huge power generators, and were there routine inspections?

What public reporting is there for wind turbine incidents? The companies are required by their Renewable Energy Approval to report any incidents such as blade failure or fire to the Ontario government and the appropriate municipality, but when there was a fire in the K2 project in 2017, the municipality was not notified until some time after — a news report at the time said a company representative did not know which turbine had burned, and was driving around with his car window open, trying to find it.

In another project in Ontario, the wind turbine was visibly leaning “off plumb” and was eventually secured with guy wires, prior to foundation repairs.

There is apparently a report that a turbine blade went through the roof of a house in Chatham-Kent in 2009 (we’re looking for that).

As for fires, the wind industry’s own journal, NA Windpower, published an article some years ago titled, “It’s not ‘if’ it’s when,” referring to the frequency of wind turbine fires.

Clearly, these incidents are not as “rare” as the wind industry would have you believe.

The Caithness accident report from Europe says that between 2013 and 2017, there were 167 accidents per year, including fires, broken blades, and injuries/deaths among workers. Blade failure is the most common incident, followed by fires.

Caithness concludes:

Some countries are finally accepting that industrial wind turbines can pose a significant public health and safety risk. In June 2014, the report of the Finnish Ministry of Health called for a minimum distance of 2 km from houses by concluding: “The actors of development of wind energy should understand that no economic or political objective must not prevail over the well being and health of individuals.” In 2016 Bavaria passed legislation requiring a minimum 2km distance between wind turbines and homes, and Ireland are considering a similar measure.         

The Ontario government continues to dodge its responsibility on wind turbine noise by relying on computer models and its notion of compliance, despite growing evidence and thousands of complaints of noise and vibration.

With yesterday’s event, the government needs to assure Ontario’s rural citizens that it is doing everything it can in the area of safety.

Other questions relate to the technical aspects of the wind “farm” approvals:

  • What sort of design safety margins are required with regards to the material properties?
  • What kind of stress, natural frequency and fatigue analysis is required to be submitted for these when an application is drawn up?

 

  • Who reviews the technical part of the application? What are the qualifications of the reviewer? Are those applications ever farmed out to professional engineers who have the appropriate experience to conduct the review?
  • What inspection procedures are used during installation and afterwards during operation? Who conducts these inspections? What inspection reports are filed and where are they filed? What are the qualifications of those who review the inspection reports?
  • How often do IWT inspections need to be done…. and how are they being done after it is up and running so that relevant data is actually acquired?
  • How many IWTs are out there of this design or similar?
  • What design specifications are being followed for the design and manufacturing? For example, do they require x-ray weld non-destructive examination for all tower welds?
  • The Ministry of Labour is now reported to be involved in the Chatham-Kent turbine failure. If this IWT failed for a reason that can’t be readily identified, what position has the Ministry of Labour taken (or needs to take) on behalf of all the workers who install and maintain these things?

Does it mean that these are unsafe for people to be anywhere near both during construction and afterwards during operation until such time as the root cause failure analysis is completed?

Many questions, few answers.

MOECC misleading the public on wind turbine noise: municipal group

Residents’ health is being harmed, say municipal leaders. They’re not impressed with the MOECC’s lack of action

January 17, 2018

A group of municipal officials sent a formal letter to the supervisor of the Owen Sound office of the Ministry of Environment and Climate Change (MOECC) following a presentation by the MOECC on the subject of wind turbine noise, noise reports, and adverse health effects.

While thanking manager Rick Chappell for his presentation, Stewart Halliday and Mark Davis, deputy mayors speaking on behalf of the group, said it was disappointing, and designed to mislead the public into thinking there are not problems with wind turbine noise in Ontario.

It’s time to stop denying the health effects, the Multi-Municipal group said, and get on to the business of alleviating the real suffering.

The letter follows.

M U L T I – M U N I C I P A L W I N D  T U R B I N E W O R K I N G  G R O U P

11 January, 2018

 

Andrew Barton, District Supervisor Andrew.Barton2@ontario.ca

Rick Chappell, District Manager Rick.Chappell@ontario.ca

Ministry of the Environment and Climate Change

101 –17th Street East

Owen Sound, Ontario N4K 0A5 Dear Mr. Barton and Mr. Chappell,

RE: Your presentation to our meeting of 14 December, 2017

 

Thank you for taking the time to make your presentation to the Multi-municipal Wind Turbine Working Group.

As councillors, we have had ongoing complaints from a significant number of residents living near wind turbines in our area who are suffering harm to their health. The video we presented to you documents the experience of some of those affected. It will also help you to understand the widespread anger and disillusionment with the MOECC’s failure to act on their behalf.

Much of the suffering could have been avoided had the local MOECC offices identified to their standards division that the public were adversely impacted (as confirmed by complaints and field monitoring) even when the turbines might have been compliant with the A weighted limits, since those limits were not appropriately corrected for the cyclical nature of the sound that is unmatched in nature, the tonality, the frequency spectrum, and the dominance of the sound above the local environment, and the other special characteristics of the wind turbine sound.

As recently revealed in FOI disclosure, there have been hundreds of complaints. Failure to resolve them, declining to shut down problematic arrays, and relying on proponent estimates of noise emissions only creates growing distrust of the MOECC.

Your presentation was disappointing. It appeared to be designed to mislead the public into thinking there are no health problems. You presented a rosy picture of a government that is busy working  on our behalf. But our experience shows that it is not.

You admitted at the meeting that you are aware that some people living near wind turbines are getting sick. You agree that IWTs cause annoyance and that leads to health issues. It is time to accept this and move forward— to protect the public so that they are not adversely impacted.

The urgent need for action is confirmed by the recent decision of Australia’s Administrative Appeals Tribunal (AAT) that declared: “We accept that the evidence points to an association and a plausible pathway between WTN and adverse health effects (of a physical nature) mediated by annoyance, sleep disturbance and/or psychological distress”.

The Ministry’s commitment to the Statement of Environmental Values (SEV) under the Ontario Environmental Bill of Rights (EBR) (1994) stipulates that it will use “a precautionary, science-based approach in its decision-making to protect human health and the environment” and that “it will place priority on preventing pollution [in this case harmful noise emissions] . . . minimizing the creation of pollutants that can adversely affect the environment. . . . The Ministry will ensure that staff involved in decisions that might significantly affect the environment is aware of the Ministry’s Environmental Bill of Rights obligations”.

You can no longer justify continued inaction by falsely assuming that “components of wind turbine sound including infrasound and low-frequency sound have not been shown to present unique health risks to people living near wind turbines”.

Scientific, peer reviewed work carried out on infrasound and wind turbines by NASA under the direction of the highly respected Dr. Neil Kelley between 1981 and 1988 demonstrated the infrasound component of wind turbine emissions and its adverse effect on nearby residents. The World Health Organization has issued warnings that “the evidence on low frequency noise is sufficiently strong to warrant immediate concern”; “low-frequency noise . . . can disturb rest and sleep even at low sound pressure levels”; “other primary physiological effects can also be induced by noise during sleep, including increased blood pressure; increased heart rate; … vasoconstriction; …cardiac arrhythmia”.

Ambrose and Rand (2011, 2012), Basner et al. (2014), Cooper (2014), James (2013), and Nissenbaum (2012) all related measurements of wind turbine emissions (including infrasound) directly to diarized symptoms reported by those living nearby. Thorne’s study (2013), which took place over seven years, collected acoustic data at a number of homes so that cumulative exposures could be estimated. It concluded that health is “seriously and adversely affected”. Swinbanks paper presented in Glasgow in 2015 did not support your position. The MOECC failed to refer to  published peer reviewed documentation by Tachibana and Kuwano in the Noise Control Engineering Journal 62(6) 503-520 (2015): “Wind Turbine Noise (WTN) generally has dominant low frequencies and is easily transmitted into buildings, causing residents psycho-acoustical annoyance and sleep disturbance”.

We would be happy to provide you with these documents.

How did it get to this state of affairs that local residents have a greater understanding of the problems than the people whose salaries are paid by the taxpayers to protect us? We await some timely, responsible, diligent enforcement action from your office to alleviate the suffering of our residents.

Yours truly,

Stewart Halliday, Deputy Mayor Municipality of Grey Highlands, Chair

Mark Davis, Deputy Mayor Municipality of Arran-Elderslie, Vice-chair

MOECC managers Rick Chappell (4th from left), Andrew Barton at December 14th meeting: misleading the public [Photo: Wind Concerns Ontario]

Stephana Johnston “wind warrior” passes away

Stephana Johnston at a fund-raising supper for the Drennan case

January 11, 2018

It is with deep sadness that Wind Concerns Ontario announces the passing of one of its staunchest members and Board member, Stephana Johnston.

Stephana had lived for years among the wind turbines in the Cultus-Clear Creek-Frogmore wind power project, developed by AIM PowerGen, and was one of the forst people in Ontario to experience symptoms from exposure to the vibration and noise emissions.

She fought back.

She presented information countless times to municipal councils, attended appeals before the Environmental Review Tribunal, and drove long distances to communities across Ontario to support people in their fight against the unwanted power projects. She was featured in numerous news articles including one published by the Globe and Mail.

A committed environmentalist, she ran for office as an MP for the Green Party in Haldimand-Norfolk, promoting “healthy communities” and “renewable energy.”

In a recent message to Wind Concerns Ontario president Jane Wilson, Stephana wrote:

” … bless all the unsung wind warriors who are still strong in their resistance to IWTs and the harm they heap on those surrounded by them.”

 

As soon as we receive the formal notice from the family, we will publish it here.

 

Wind power in Ontario’s cold snap: not reliable

When demand for electricity and heating were at their highest, wind and solar production were at their lowest

–Stephen Aplin, Canadian Energy Issues

January 6, 2018

 

Ottawa-based energy analyst Stephen Aplin has taken on a portion of the work the Ontario government never did: an analysis of the benefits of wind power as part of Ontario’s power mix.

This week, with temperatures well below normal, is wind power achieving the promises made for it as a cheap reliable source of power?

No, says Aplin, in a comment on his Canadian Energy Issues website. “Bearing in mind the data presented [in his recent article], the answer is an obvious and emphatic, NO.”

Even if Ontario had ten times the capacity of wind and solar it does now, it still wouldn’t meet demand.

And before the pro-wind people jump up and say, We need MORE, Aplin says, that’s just  the usual from the pro-renewable energy salespeople — ” buy more of my inferior product.”

Aplin concludes by despairing of the renewables myth.

“In light of this, another monster-size question is begged. Why do governments all across the world regularly and routinely regurgitate the 100 percent renewables myth?

And why do the media types who interview the government types who regurgitate this nonsense not call them on it?”

Read the article here.