APAI was not successful in achieving Leave to Appeal.

Windlectric/Algonquin, the company granted approval to blanket Amherst island with 26, fifty storey turbines, has completed dock construction on Amherst Island and commenced dock construction on the mainland. Loyalist Township has not approved the draft Operations Plan required by the Roads Use Agreement.  Windlectric has not entered into a Roads Use Agreement with the County of Lennox and Addington.   The company’s pre-construction study and Operations Plan note that Island roads with the exception of Front Rad do not have the load bearing capacity to support project traffic and equipment.  Island roads will fail!

In its first weeks of work the company caused a major power outage on the Island and a water emergency in Prince Edward County.  Restrictions due to fish spawning and grassland birds were blatantly disregarded.    Not a good beginning!

Call to Action
Please request Premier Wynne (premier@ontario.ca or 416-325-1941) and Minister Murray (minister.moecc@ontario.ca or 416-314-6790) to cancel the project without penalty because of the company’s inability to achieve its Commercial Operations Date and because it’s absolutely the right thing to do.


We are being bullied AND we are resilient, tenacious, and absolutely committed.

 

APAI Appeals to the Minister MOECC to save Amherst Island, a place of wonder

Category: Uncategorized

November 13, 2017

Honourable Chris Ballard

Minister of the Environment and Climate Change

Ferguson Block -11th Floor

77 Wellesley Street W.

Toronto, ON

M7A 2T5

 

Honourable Minister,

RE:      Association to Protect Amherst Island

            Appeal to the Minister MOECC Under Section 20 of the

            Environmental Protection Act on Matters Other Than Law

This is an appeal on “matters other than law”.  Accordingly, you are not bound by precedent nor by the efforts of counsel for the Approval Holder, Windlectric Inc., and counsel for the Government to limit your authority to consideration of errors or to the narrow test required at the ERT to demonstrate “serious harm to human health; or serious and irreversible harm to plant life, animal life or the natural environment”.  You are wrongfully advised by counsel for the opposing parties that even Government policy and political risk are irrelevant to this matter and that you don’t even have the authority to request the Director to require a modification to the project to reflect critical changes or to impose mitigation measures which Tribunal members accepted as essential. Please do not be guided by lawyers’ efforts to limit your authority. Your mandate is much broader than the restrictive views expressed by opposing counsel in the responses to APAI’s appeal.

You are respectfully requested to do what is in the public interest: to revoke approval of the Amherst Island Wind Project.

You have a real choice.

To protect the rich natural and cultural heritage of Amherst Island, the jewel of Lake Ontario:

or to allow devastation for future generations and for all time:

Two critical issues have not been addressed correctly by counsel in their responses.

  1. Counsel for the Director in paragraph 21 advises that “the Tribunal also found that the mitigation measures incorporated as conditions in the REA have all but eliminated the potential for turtle mortality and have minimized the potential for indirect impacts to habitat during the construction phase”. The Tribunal erred.  The REA makes no mention of Blanding’s Turtles and has no specific measures to address their mortality.  At the time of the Approval MOECC and the Approval Holder had not accepted that Blanding’s Turtles existed on Amherst Island. It is telling that the REA Conditions of Approval were not introduced as evidence at the ERT hearing.

Instead as the ERT hearing progressed the Approval Holder acknowledged that Blanding’s Turtles exist on the Island and produced a Wildlife Mitigation Plan and a schedule which ostensibly protected Blanding’s Turtle and other endangered species and made many commitments to protect species at risk.  Key among them was that very limited road works would occur in three locations on the Island. The minimal improvements to roads was central to the Approval Holder’s argument to demonstrate that there would be little impact on Blanding’s Turtle habitat as turtles nest on gravel shoulders.   APAI has dutifully followed the bouncing ball among organizations concerning compliance and was advised by MOECC that the Ministry’s mandate is limited to enforcement of the conditions set out in REA Approval[1] and by the Township that “Although protection of species at risk is an important obligation, it is not an obligation of the Township. It is up to the Ministry of the Environment and Climate Change (MOECC) to ensure that Windlectric meets the broad requirements of the REA[2]“.

  1. But the key error made by the Tribunal was to believe the commitments made by the Approval Holder and ably summarized by Counsel in closing arguments[3]. The reality of project implementation simply does not match what expert witnesses and counsel advised the Tribunal based on the importance of roads as nesting turtle habitat and traffic volumes related to construction.  The commitments are absolute fiction when compared to what is happening on the Island where over 20 km of roads are being reconstructed and widened at a cost exceeding $10 million.  The Director has the authority and arguably an obligation to require a major modification and has refused to do so.

 Some excerpts from Torys’ closing submission:

  1. As confirmed by the expert testimony, the roads that would be used for the Project are in quite good condition overall, and would not require much work. Importantly, none of the paved roads would be repaved, no gravel roads will be paved, and no additional road shoulders (beyond what already exists) will be needed. 

Shawn Taylor[4] stated:

  1. In respect of the remaining Island roads that will be used during construction of the Project, the upgrading of them will be limited and temporary. This includes that there will be no re-paving of existing paved roads, and there will be no paving of existing gravel roads. The types of roads that exist will be maintained as they currently exist.
  2. There are few paved roads on the Island, however parts of Front Road and Stella 40 Foot Road are paved and would be used. They currently meet the standard necessary for the longer trucks, but may need minor pavement improvements in a few locations. Otherwise, damaged pavement will be repaired during and after construction mobilization.
  3. The majority of the gravel roads are in relatively good shape, are wide enough to sustain truck traffic and will only need minor gravel top ups to improve the surface or adjust the width. All of these good gravel roads are currently posted for a 60 km/hr speed limit and it is not expected that the improvements (gravel top up & leveling) will result in increases in speed or traffic frequency that would affect a change in risk to turtles.

Shawn Taylor WS, paras. 27-29

  1. The Appellant focused its concern on the temporary road widenings that will occur, as shown on Exhibit 88 and described in Mr. Tsopelas’ evidence – it called the evidence of Mr. Northcote on this topic. As shown on Exhibit 88, there are only three roads on which any such widening will take place: (i) certain curves on an eastern section of South Shore Road between Stella 40 Foot Road and Lower 40 Foot Road; (ii) Dump Road; and (iii) the one S-bend curve in the middle of 3rd Concession Road.

Drawings, Exhibit 88 Alex Tsopelas [5] Testimony

  1. These road widenings are temporary measures that would, at most, be in place between September 2016 and mid-March 2017 (with the 3rd Concession widening not occurring until at least the start of November 2016). The Approval Holder has unequivocally confirmed that it would reverse/remove these road widenings immediately after the turbines have been delivered. The turbines are all expected to have been delivered and erected by about mid-March.

Mr. Tsopelas confirmed these points in his testimony, as did Andrew Taylor. The Exhibit 88 drawings also expressly confirm this point (in bold red text) regarding the timing of removal of the road widenings.

Alex Tsopelas Testimony Andrew Taylor[6] Testimony

Road Widening Location Drawings, Exhibit 88

The above extracts confirm that the Approval Holder made many commitments with respect to the minor and temporary nature of road widenings.  This has proven to be fiction.

The Association to Protect Amherst Island respectfully requests that you exercise your authority to revoke approval for the compelling reasons set forth in our earlier submissions:

  • Enforce and respect commitments made by the Approval Holder during the ERT to mitigate potential negative impacts on the environment. The ERT decision specifically states that the Tribunal Members considered commitments made by the Approval Holder that were not included in the REA conditions when coming to their decision. However, Mr. Paul Nieweglowski, Assistant Deputy Minister MOECC, advised that the MOECC has no mandate to enforce commitments not included in the REA conditions. The project under construction is now radically different from the project considered by the ERT and in layman’s terms appears as a classic “bait and switch” described more fully in our earlier brief. 

Imagine that your organization representing residents of a tiny Island invested hundreds of thousands dollars in a 25 day hearing to address the risk to the community and the environment. You lost but you achieved assurances from the Tribunal, the Approval Holder, MOECC, and MNRF that extensive mitigation measures would be in place to protect cultural and natural heritage especially the endangered Blanding’s Turtles and Myotis Bats.  However, as soon as all of your legal avenues were exhausted, the Approval Holder changed the game.  Key mitigation measures based on minimal and temporary road widenings, restrictions on timing, and turbine cut-in measures to protect bats disappeared. When requested to address this huge change and presented with expert advice about adverse impact, MOECC apparently failed to consult MNRF and refused to require a modification to protect the public and the environment especially turtles and bats facing decimation.   The Director simply ignored an affidavit[7] submitted by Dr. Fred Beaudry, qualified as an expert on Blanding’s Turtles, setting out the irreversible harm the road reconstruction would have on the turtle population.

  • Safeguard Amherst Island residents’ access to clean water. All Island residents rely on wells.  The potential adverse impact of the construction of 26 turbines on groundwater on a vulnerable and isolated Island and the failure of MOECC to heed the initial advice of its own expert hydrologist to implement a comprehensive groundwater monitoring requires your intervention.  In the REA conditions, the MOECC required no studies and no monitoring.  MOECC advised that no geotechnical studies have been conducted.
  • Be proactive and protect human health by consistent application of noise regulations. If the Amherst Island Wind Project were proposed today the noise regulations implemented in 2016 would require significant changes to the project.   A minimum of ten homes would be subject to noise exceeding the new standards.     Why should Amherst Island residents be subjected to noise that MOECC acknowledges exceeds today’s safety standards?  You have an opportunity to take preventative action especially important when it has become widely known that MOECC has not investigated thousands of noise complaints related to wind turbines throughout rural Ontario.
  • Save $500 million by inviting the Approval Holder to terminate its FIT contract for the unneeded 75 MW Amherst Island project across the channel from the idle 2000 MW Lennox Generating Station paid monthly curtailment fees, the soon to be idle 800 MW Napanee Gas Plant to be paid over $13 million per month to NOT generate electricity, and 115 MW Northland Power whose offer of power at 5.6 cents per kilowatt was not accepted in contrast to the 14 cents per kilowatt to be paid on Amherst Island.
  • Address the many risks described in our submission to your predecessor, the Honourable Glen Murray, which forms part of this brief: construction of a cement plant adjacent to the Island’s only school (something that would not be allowed anywhere else in Ontario), impact of construction on lands considered historic by First Nations, conflict of barge traffic with the Island ferry in winter, impact on the Owl Capital of North America and an Important Bird Area, the decimation of the bat population, loss of grazing land for sheep farmers and consequent potential end of the farm, impact on health, damage to the rich cultural and natural heritage of the Island, and the high risk to public safety and the environment.

The Environmental Protection Act[8], says you have the power to confirm, alter or revoke the decision of the Tribunal, substitute for the decision of the Tribunal such decision as he or she considers appropriate or, by notice in writing to the Tribunal, require it to hold a new hearing with respect to all or any part of the subject matter of the decision.

The hundreds of pages submitted by counsel for the Approval Holder symbolize the unequal playing field between ordinary citizens who care deeply about the environment and their community and the corporate interests of Windlectric Inc.  The submissions fail to address the essence of the choice before you.

You have the singular ability to protect the Island’s rich cultural and natural heritage and to say “not on my watch”.  A just decision will demonstrate to rural Ontario that Amherst Island is the wrong place, the very wrong place for wind turbines and that there is a sliver of hope for the future.  As the Amherst Island Wind Project is the last of 2011 FIT contracts no precedent will be established.

Paving Paradise or protecting Amherst Island for future generations?  The choice is yours.  Please come to the Island and see the impact prior to signing off on this important matter.

A virtual tour is available here:  https://www.youtube.com/watch?v=-5sLjauQV3w

We look forward to your decision.

 

Sincerely

Michèle Le Lay

President

APAI

 

CC

Premier Kathleen Wynne

Mr. Mike Bossio, MP

Mr. Randy Hillier, MPP

Dr. D. Saxe, Environmental Commissioner

Ontario MPP’s

Ms. Isabelle O’Connor, Counsel for the Director

Mr. John Terry, Torys LLP, Counsel for the Approval Holder

Mr. Tom Lees, Ministry of the Attorney General

 

 

 

[1] Meeting with James Mahoney and Chris Raffael MOECC on October 31, 2016 subsequently confirmed in a teleconference with Paul Nieweglowski, ADM, MOECC on April 20, 2017.

[2] Report from the Director of Infrastructure Services, October 17, 2017 re: Comments on APAI September 24, 2017 Letter to Council.

[3] CLOSING SUBMISSIONS OF THE APPROVAL HOLDER, ERT Case No. 15-084, WINDLECTRIC INC., Torys LLP

 

[4] Shawn Taylor was an expert witness for Windlectric Inc.

[5] Alex Tsopelas was the Project Manager Windlectric Inc.

[6] Andrew Taylor was an expert witness for Windlectric Inc.

[7] Affidavit of Dr. Fred Beaudry appended to letter from Eric K Gillespie dated August 2, 2017 to Ms. Kathleen O’Neill, Director, MOECC

[8] Appeal from decision of Tribunal

20.16

 (1) A party to a proceeding under this Part before the Tribunal may appeal from its decision,

(a) on a question of law, to the Divisional Court; and

(b) on a question other than a question of law, to the Minister.  2010, c. 16, Sched. 7, s. 2 (15).

Same

(2) An appeal under clause (1) (b) shall be made in writing within 30 days after the party appealing the decision receives the decision of the Tribunal.  2010, c. 16, Sched. 7, s. 2 (15).

Powers of Minister on appeal

(3) In an appeal under clause (1) (b), the Minister shall confirm, alter or revoke the decision of the Tribunal, substitute for the decision of the Tribunal such decision as he or she considers appropriate or, by notice in writing to the Tribunal, require it to hold a new hearing with respect to all or any part of the subject matter of the decision.  2010, c. 16, Sched. 7, s. 2 (15).