Ms. Garcia-Wright:

This letter is in response to your reply to Ms. Bonnie Tuson on January 23, 2014.  The reply is attached.

You state that the sound power level is guaranteed by the manufacturer.  You have received 16 documents stating that an Enercon E-101 has a sound power level of 106 dBA.  A member of the public also received a document from Enercon (which has been forwarded to you)  stating that an E-101 has a sound power level  of 106 dBA.  Steve Klose from the MOE states that the sound power level of a turbine is an inherent property of its noise source. In other words, the sound power level is the same everywhere.

NRWC states that the sound power level of the E-101 is 104.8 dBA.  Based on their noise modeling, this is the highest sound power level they can use and still be compliant at 40 dBA.  If they use anything higher than 104.8, they will not be compliant.

What rationale would you expect was used when NRWC submitted a sound power level of 104.8 dBA in their noise assessment,  when other published documents (including Enercon documents) indicate that the sound power level of an E-101 is 106 dBA?  Can you please reply to this question?

You also state “approval of REA applications are usually conditional to an acoustical audit once the facility is constructed”.  This doesn’t make any sense.  It is pretty clear that the project will not be compliant when the rules of the MOE are applied, so why would construction be allowed to proceed?  I think the public deserves an answer to this question.  The citizens of Ontario don’t need to be burdened with further increased electricity rates because of the non-compliant project.  It needs to be rejected immediately.

If for whatever reason, the project does get approval it is essential that the public have access to the independent acoustical audit.  Can the public have your assurance that this will happen?

You state that you will forward the decision of the German court to the Standards Development Branch.  Can we have your assurance that this court decision will be considered for the NRWC project?  This is a court decision that ruled against Enercon and it is final and cannot be appealed.  It makes no sense to ignore this decision in Ontario.

You state “The ministry will assess the impacts of the proposal including the height of the wind turbines”.  Can you please expand on this comment?  I am uncertain what you are saying.

Looking forward to a quick response,

Lois Johnson

Cheryl Anderson

This report only deals with the first part of the day today.  The PECFN counter appeals and cross appeals and the intervener South Shore Conservancy was completed in the late morning and the afternoon was devoted to the APPEC appeal.  Your PECFN contingent wended their weary way home after lunch.

Chris Paliere, legal representative for the SSC spoke first.   Mr. Paliere gave a succinct and direct analysis of the legal issues SSC has with the ERT ruling.  Pointing out that in order for the endangered species permit to be granted expertise should be expected from the MNR.  Mr Paliere asserted that there was no evidence that the permit granting was anything more than a paper process.  The Tribunal had the expertise to interpret broad undefined terms in the Green Energy Act and the Renewable Energy Approval.  The Tribunal therefore was correct in only considering that the ESA permit was in effect.  Therefore the conclusions reached by the Tribunal must be accepted.

This argument was countered by Mr. Wayland (correct spelling this time) and Mr. Hamilton for Gilead.  The arguments centre on whether the ESA permit to kill harm and harass supersedes the Renewable Energy Approval of the project.  In other words, the ERT cannot deny the project because the ESA permit is in place – and since the MNR has given permission to kill harm and harass endangered species then the ERT cannot find serious and irreversible harm to a species.  Mr. Paliere was adamant that there are two separate issues and that the situation amounted to “poly-centric decision making”.

The PECFN cross appeal dealing with our contention that the ERT did not properly consider the evidence showing serious and irreversible harm to the Birds and Alvar was begun by Natalie Smith, who presented the facts in the case.  Eric Gillespie carried on with the legal arguments.  There was a discussion started by Justice Nordheimer regarding the damage done to Alvar by the Department of National Defence use of the areas of the South Shore in the early 1950’s for munitions testing.  Eric’s assertion that the DND damage was minimal was countered by both Sylvia Davis for the MOE and Mr. Wayland for Gilead.  They were trying to say that the damage by the munitions testing was in some way analogous to the damage that would be caused by wind turbines and roads.  Following from the argument was the assumption that when the IWT’s were removed after twenty years the Alvar would regenerate similar to the regeneration after the munitions testing.

According to Eric’s submission, “in dealing with the issue of birds the Tribunal failed to provide and interpretation of scale”.  In other words if there are many birds of a species that is abundant on the site then chances are that there will not be serious and irreversible harm to that species.  However, if there is a bird or a few birds of an endangered species on the site then the chances of severe and irreversible harm to that species become greater.  The Tribunal ruled, in spite of excellent witness testimony to the contrary, that PECFN did not prove serious and irreversible harm to birds as a result of the IWT project.  Eric’s submission was that if the Tribunal had taken “scale” into consideration their decision would have been to deny the project on that basis.

As you can see these legal arguments can become complicated and sometimes are really best left to legal minds to interpret.  Suffice it to say that Eric and Natalie were pleased at the end of the day with the way their arguments were received by the Court.

We will have to wait to see if the Divisional Court will let the ERT ruling re: Blanding’s Turtles stand and if they will reverse the ERT ruling on the Birds and Alvar as requested by PECFN.

Thank you as always for your continuing support as we fight to save Ostrander Point.
Cheryl Anderson

Abigale Subdhan | January 16, 2014  National Post

Several Prince Edward Island rinks that were convinced to make the expensive conversion to wind power, but never saw the promised savings, are now trying to get rid of the trouble-plagued turbines and win compensation for their troubles.

“We went into debt to purchase this windmill on the promise that it would make us money and it would help us with our power costs,” said Tom Albrecht, vice-president of the South Shore Actiplex in Crapaud, P.E.I., which spent $70,000 and received another $230,000 from the federal and provincial governments to install a turbine.

“The bottom line is buy us out and give us our money back.”

Read the rest or article here.