Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 1, 2015

CASE NO(S).: 15-009/15-010

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended

Appellant: Municipality of Clarington (ERT Case No.: 15-009)

Appellant: Clarington Wind Concerns (ERT Case No.: 15-010)

Approval Holder: Ganaraska Nominee Ltd.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for ZEP Wind Farm Ganaraska

Reference No.: 1426-9RWTSS

Property Address/Description: 4027 Ganaraska Road (Regional Road 9), Part of Lots 18-22, Concession 6, Orono

Municipality: Clarington

Upper Tier: Durham Region

ERT Case No.: 15-009/15-010

ERT Case Name: Clarington (Municipality) v. Ontario (Environment and Climate Change)

Heard: In writing and on March 17, 2015 at Bowmanville, Ontario, and by telephone conference call on March 30, 2015

APPEARANCES:

Parties Counsel/Representative+

Municipality of Clarington Andrew Allison (in writing only)

Clarington Wind Concerns Priya Vittal

Director, Ministry of the Environment and Climate Change Sylvia Davis and Alexandra Mingo

Ganaraska Nominee Ltd. Arlen Sternberg and Dennis Mahony

Participant Save the Oak Ridges Moraine Coalition Cindy Sutch+

ORDER DELIVERED BY MARLENE CASHIN, MARCIA VALIANTE, AND ROBERT V. WRIGHT

REASONS

Background

1On January 30, 2015, Vic Schroter, Director, Ministry of the Environment and Climate Change (the “Director”) issued Renewable Energy Approval Number 1426-9RWTSS (the “REA”) to Ganaraska Nominee Ltd. (“Approval Holder”) under s. 47.5 of the Environmental Protection Act (“EPA”). The REA is for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 17.6 megawatts, known as the ZEP Wind Farm Ganaraska, to be located in Orono in the Municipality of Clarington, Durham Region, Ontario (the “Project”).

2On February 13, 2015, the Municipality of Clarington (“Clarington”) filed a notice of appeal with the Environmental Review Tribunal (“Tribunal”) of the decision of the Director to issue the REA. Clarington appealed on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment, in particular, harm to the Oak Ridges Moraine (“ORM”).

3On February 17, 2015, Clarington Wind Concerns (“Appellant”) also filed a notice of appeal of the Director’s decision to issue the REA. The Appellant’s notice of appeal alleges that the Project will cause serious harm to human health and serious and irreversible harm to plant life, animal life and the natural environment.

4On March 12, 2015, Clarington sent a letter to the Tribunal proposing to withdraw its appeal in Case No. 15-009 with the consent of all the parties.

5On March 17, 2015, the preliminary hearing was held in Bowmanville. At the preliminary hearing, the Tribunal granted participant status to Save the Oak Ridges Moraine Coalition, an incorporated association (“STORM”), and discussed scheduling of the hearing.

Issues

6The issues are:

Whether to accept the proposed withdrawal of Clarington’s appeal and dismiss the appeal in Case No. 15-009;
Whether to grant participant status to STORM in Case No. 15-010; and
Procedural directions in Case No. 15-010.

Relevant Rules

7Rules of Practice of the Tribunal

Termination of Proceedings

A Proponent or Applicant who proposes to withdraw his or her application, an Appellant who proposes to withdraw his or her appeal, or a Director, a Risk Management Inspector or Official or a municipality who proposes to revoke the decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the

Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter.

Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.

Naming of a Party

In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether

(a) a person’s interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

Naming of a Participant

The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.

Discussion, Analysis and Findings

Issue 1: Whether to accept the proposed withdrawal of Clarington’s appeal and dismiss the appeal in Case No. 15-009

8According to Rule 199, the Tribunal shall dismiss an appeal where there has been a proposed withdrawal that has been agreed to by all parties, and the decision under appeal is not altered.

9The parties have confirmed with the Tribunal in writing that they consent to the withdrawal of Clarington’s appeal and that the REA is not altered in any way. The Tribunal has not been notified of any objection to the withdrawal of Clarington’s appeal.

10On the basis of what the parties have stated, the Tribunal finds that the parties have agreed to the withdrawal of Clarington’s appeal and the REA will not be altered in any way. Therefore, Rule 199 applies. The Tribunal accepts the proposed withdrawal of Clarington’s appeal and dismisses the proceeding in Case No. 15-009.

Issue 2: Whether to grant participant status to STORM in Case No. 15-010

11STORM requested participant status through its representative, Cindy Sutch. STORM seeks to provide evidence regarding the impacts of the Project on the ORM. Ms. Sutch provided the Tribunal with background information on STORM and its prior participation in Tribunal hearings, as well as information regarding the ORM. Ms. Sutch subsequently confirmed that she and a STORM board Member intend to present STORM’s evidence jointly as fact witnesses.

12Neither the Approval Holder nor the Director objected to STORM being granted participant status, so long as it confines its evidence and submissions to issues within the Tribunal’s jurisdiction and within the scope of the notice of appeal.

13The Tribunal noted that STORM has a genuine public interest in the subject matter of the proceeding, as the Project is approved to be constructed on the ORM, and STORM has a history of responsible advocacy respecting issues affecting the ORM. In addition, the Tribunal is satisfied that STORM is likely to make a relevant contribution to its understanding of the issues in the proceeding. For these reasons, the Tribunal grants STORM participant status, subject to the following conditions: STORM’s presentation and submissions shall be restricted to issues within the Tribunal’s jurisdiction and the scope of this proceeding; STORM shall provide a written copy of its intended presentation by the date scheduled; and the representatives of STORM shall comply with the time allocated for oral presentation of its evidence (approximately one hour).

Issue 3: Procedural directions in Case No. 15-010

14The parties prepared a tentative schedule for the filing of witness statements and the hearing of witnesses. However, due to scheduling conflicts, the parties and the Tribunal modified the initial Schedule of Events by email correspondence subsequent to the in-person preliminary hearing on March 17, 2015. On March 30, the Tribunal held a telephone conference call to determine the date for STORM to serve and file the written copy of its intended presentation. The parties have agreed to a schedule as set out below.

15The parties have also undertaken to provide the Tribunal with a detailed schedule of witnesses prior to the start of the hearing.

16The parties have further agreed that final oral submissions, if any, should be scheduled during the week of June 8, 2015.

ORDER

17The Tribunal accepts the withdrawal of the appeal by the Municipality of Clarington and orders that the appeal in Case No. 15-009 is dismissed.

18In Case. No. 15-010, the Tribunal grants participant status to STORM subject to the following conditions:

STORM’s presentation and submissions shall be restricted to issues within the Tribunal’s jurisdiction and the scope of this proceeding;
STORM shall provide a written copy of its intended presentation by the date agreed upon; and
the representatives of STORM shall comply with the time allocated for oral presentation of its evidence (approximately one hour).

19The Tribunal directs that the proceeding be conducted in accordance with the following schedule, or as may be varied by agreement of the parties and confirmed by the Tribunal:

March 23 (10 a.m.): Appellant to provide its list of witnesses to the parties and the Tribunal

March 27 (4 p.m.): Appellant’s witness statements to be served and filed

April 2 (4 p.m.): Motion records (if any) to be served and filed

April 6 (noon): STORM’s intended presentation to be served and filed

April 7 (4 p.m.): Responding motion records (if any) to be served and filed

April 8 (4 p.m.): Reply motion records (if any) to be served and filed

April 8 (4 p.m.): Respondents’ witness statements to be served and filed

April 10 (4 p.m.): Reply witness statements to be served and filed

April 13 (10 a.m.) Hearing commences at Orono Community Centre in Orono and will continue on April 14, 15, 27, and April 28, 2015 if necessary

May 8 (4 p.m.) Appellant’s and STORM’s final written submissions to be served and filed

May 22 (4 p.m.) Respondents’ final written submissions in response to be served and filed

May 29 (4 p.m.) Final written submissions in reply, if any, to be served and filed

Week of June 8: Oral submissions, if any, on a date to be determined.

Withdrawal of Appeal Accepted

Appeal Dismissed

Participant Status Granted

Procedural Directions Ordered

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Robert V. Wright”

ROBERT V. WRIGHT

VICE-CHAIR

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