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O. Reg. 97/16: RENEWABLE ENERGY APPROVALS UNDER PART V.0.1 OF THE ACT

filed April 14, 2016 under Environmental Protection Act, R.S.O. 1990, c. E.19

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ontario regulation 97/16

made under the

Environmental Protection Act

Made: April 13, 2016
Filed: April 14, 2016
Published on e-Laws: April 15, 2016
Printed in The Ontario Gazette: April 30, 2016

Amending O. Reg. 359/09

(RENEWABLE ENERGY APPROVALS UNDER PART V.0.1 OF THE ACT)

1. (1) The definition of “sound power level” in subsection 1 (1) of Ontario Regulation 359/09 is revoked and the following substituted:

“sound power level” means the rating, expressed as an apparent value, that,

(a) is given to a wind turbine by the manufacturer of the wind turbine calculated in accordance with the applicable standard and rules specified in subsections (6.1) to (6.4), and

(b) applies in respect of the wind turbine when the wind turbine is operating at 95 per cent of its name plate capacity;

(2) The definition of “woodland” in subsection 1 (1) of the Regulation is revoked and the following substituted:

“woodland” means a treed area, woodlot or forested area, other than a cultivated fruit or nut orchard or a plantation established for the purpose of producing Christmas trees, that is located in Ecoregions 6E and 7E as shown in Figure 1 in the Provincial Policy Statement issued under section 3 of the Planning Act and approved by the Lieutenant Governor in Council by Order in Council No. 107/2014, excluding islands in Lake Huron and the St. Mary’s River;

(3) Paragraph 2 of subsection 1 (4) of the Regulation is amended by striking out “a day nursery” and substituting “a child care centre”.

(4) Paragraph 3 of subsection 1 (4) of the Regulation is revoked and the following substituted:

3. Subject to subsection (4.1), if the construction of a building or structure mentioned in paragraph 1 or 2 has not commenced but an approval under section 41 of the Planning Act or a building permit under section 8 of the Building Code Act, 1992 has been issued in respect of the building or structure, the centre of the proposed building or structure.

(5) Paragraph 4 of subsection 1 (4) of the Regulation is amended by striking out “mentioned in paragraph 3 has been issued” and substituting “to which paragraph 3 applies”.

(6) Section 1 of the Regulation is amended by adding the following subsections:

(4.1) Paragraph 3 of subsection (4) does not apply if,

(a) subject to subsection (4.2), the person proposing to engage in the renewable energy project sent a request in respect of each location to which paragraph 3 of subsection (4) would apply for a copy of each approval issued under section 41 of the Planning Act and each building permit issued under section 8 of the Building Code Act, 1992 to the clerk of each municipality responsible for issuing each approval or permit and the requested copy was not provided to the person within 60 days after the day the request was received;

(b) the person referred to in clause (a) submitted an application for a renewable energy approval or an environmental compliance approval or made a draft site plan available in accordance with subsections 35 (1.4), 54 (1.4) or 55 (2.4) within 60 days after the end of the 60-day period referred to in clause (a); and

(c) the approval or building permit was not otherwise brought to the attention of the person referred to in clause (a) before an application referred to in clause (b) was submitted or a draft site plan referred to in clause (b) was made available.

(4.2) The person proposing to engage in the renewable energy project must send the request referred to in clause (4.1) (a),

(a) in a form and format approved by the Director;

(b) by registered mail; and

(c) if there is more than one location mentioned in paragraph 1 or 2 of subsection (4) to which paragraph 3 of that subsection would apply, to all of the applicable municipalities on the same day.

(7) Paragraph 2 of subsection 1 (5) of the Regulation is amended by striking out “a day nursery” and substituting “a child care centre”.

(8) Subsection 1 (6) of the Regulation is amended by striking out “with the renewable energy approval” at the end and substituting “with the environmental compliance approval or renewable energy approval”.

(9) Section 1 of the Regulation is amended by adding the following subsections:

(6.1) For the purposes of clause (a) of the definition of “sound power level” in subsection (1), the following standards and rules are specified:

1. CAN/CSA-C61400-11-07, “Wind Turbine Generator Systems – Part 11: Acoustic Noise Measurement Techniques”, dated October 2007 and available as described in subsection (6.5), is specified as the standard for a wind turbine for which an application for a renewable energy approval, a certificate of approval or an environmental compliance approval was submitted before May 1, 2016 or for which a renewable energy approval, a certificate of approval or an environmental compliance approval was issued before May 1, 2016.

2. Subject to paragraph 3 and subsection (6.2), CAN/CSA-IEC 61400-11:13, “Wind Turbines – Part 11: Acoustic Noise Measurement Techniques”, dated August 2013 and available as described in subsection (6.5), is specified as the standard for a wind turbine for which an application for a renewable energy approval or an environmental compliance approval is submitted on or after May 1, 2016 and, subject to subsections (6.3) and (6.4), must include the positive uncertainty value, consisting of either,

i. the value provided by the manufacturer and calculated in accordance with that standard, or

ii. an additional 2 dB.

3. Subject to subsection (6.2), if CAN/CSA-IEC 61400-11:13, “Wind Turbines – Part 11: Acoustic Noise Measurement Techniques”, available as described in subsection (6.5), is amended and the adoption of the amendment comes into effect in accordance with subsection 177 (6) of the Act, the standard in that amended version is specified as the standard for a wind turbine for which an application for a renewable energy approval or an environmental compliance approval is submitted on or after the day the amended version comes into effect and, subject to subsections (6.3) and (6.4), must include the positive uncertainty value, consisting of either,

i. the value provided by the manufacturer and calculated in accordance with that standard, or

ii. an additional 2 dB.

(6.2) Paragraph 1 of subsection (6.1) continues to apply to a wind turbine described in that paragraph in respect of changes to the wind turbine, unless an application in respect of a change to the wind turbine is submitted on or after May 1, 2016 and the change,

(a) would result in a change to the wind turbine’s location; or

(b) would increase the wind turbine’s octave-band sound power levels (linear weighted), as calculated in accordance with the standard specified in paragraph 1 of subsection (6.1), unless there would be no resulting increase in the sound level at any noise receptor within 1,500 metres of the turbine.

(6.3) The requirement in paragraph 2 of subsection (6.1) to include the positive uncertainty value as part of the calculation of the sound power level does not apply in respect of a wind turbine if,

(a) the supply of renewable energy from the wind turbine is provided for in a power purchase agreement with the Independent Electricity System Operator entered into as part of the first phase of the Large Renewable Procurement process; and

(b) as part of the application for a renewable energy approval, the person proposing to engage in the renewable energy project in respect of the wind turbine elects not to include the positive uncertainty value as part of the calculation of the sound power level.

(6.4) The requirement in paragraph 2 of subsection (6.1) to include the positive uncertainty value as part of the calculation of the sound power level does not apply in respect of a change to a wind turbine described in subsection (6.3) unless an application in respect of a change to the wind turbine is submitted after the renewable energy approval has been issued and the change,

(a) would result in a change to the wind turbine’s location; or

(b) would increase the wind turbine’s octave-band sound power levels (linear weighted), as calculated in accordance with the standard specified in paragraph 2 of subsection (6.1), unless there would be no resulting increase in the sound level at any noise receptor within 1,500 metres of the turbine.

(6.5) The standards mentioned in subsection (6.1) shall be available for review on request to the Director at the Ministry’s district offices and the Ministry’s Public Information Centre.

(6.6) In the following provisions, a reference to the sound power level of a wind turbine is a reference to the sound power level rounded to the nearest whole number:

1. The Table to section 6.

2. Clause 33 (4) (b).

3. Paragraph 2 of subsection 33 (5).

4. Paragraph 3 of subsection 54 (1).

5. Clauses 54 (4) (a) and (b).

6. Clauses 54 (5) (a) to (e).

7. Clauses 55 (1) (a) to (e).

8. Paragraph 3 of subsection 55 (1.1).

9. Paragraphs 1 and 2 of subsection 55 (2).

10. The Table to section 55.

11. Paragraph 3 of subsection 55.1 (2).

2. (1) Clause 6 (1) (c) of the Regulation is revoked and the following substituted:

(c) the other specifications in Column 4 of the Table are met.

(2) The Table to section 6 of the Regulation is revoked and the following substituted:

Table

 

Item

Column 1

Class of wind facility

Column 2

Location of wind turbines

Column 3

Name plate capacity of the facility (expressed in kW)

Column 4

Other specifications

1.

Class 1

At a location where no part of a wind turbine is located in direct contact with surface water other than in a wetland.

3

None.

2.

Class 2

At a location where no part of a wind turbine is located in direct contact with surface water other than in a wetland.

> 3 and < 50

None.

3.

Class 3

At a location where no part of a wind turbine is located in direct contact with surface water other than in a wetland.

≥ 50

Greatest sound power level (expressed in dBA) is < 102; greatest height (expressed in metres) of any wind turbine that forms part of the facility, excluding length of any blades, is < 70.

4.

Class 4

At a location where no part of a wind turbine is located in direct contact with surface water other than in a wetland.

≥ 50

One of the following:

  1. Greatest sound power level (expressed in dBA) is ≥ 102.

  2. Greatest sound power level (expressed in dBA) is < 102; greatest height (expressed in metres) of any wind turbine that forms part of the facility, excluding length of any blades, is ≥ 70.

5.

Class 5

At a location where one or more parts of a wind turbine is located in direct contact with surface water other than in a wetland.

Any.

None.

3. The Regulation is amended by adding the following section:

Exemptions, ss. 47.3 (1) and 186 (3) of the Act

9.1 (1) Subsections 47.3 (1) and 186 (3) of the Act do not apply to a person who meets the following criteria:

1. The person has obtained a renewable energy approval for a renewable energy project.

2. The person proposes to make any of the changes described in subsection (2) to the manner in which the project is engaged and that meet the following criteria:

i. The proposed change meets the requirements of the applicable sections in Part V as though that Part applied to the change, without relying on any exemptions set out in those sections.

ii. The proposed change would take place on the same parcel or parcels of land on which the project was approved to be engaged in.

iii. The proposed change would not take place on a property described in Column 1 of the Table to section 19 unless the person has obtained, with respect to the change, the authorization or confirmation required under subsection 19 (2).

iv. The proposed change would take place at a location in respect of which a natural heritage assessment described in subsection 24 (1) was conducted and the confirmations described in subsection 28 (2) were obtained.

3. The person has received one of the following with respect to the proposed change:

i. If an archaeological assessment report was required and submitted under subsection 20 (4) or 21 (2), the opinion of a consultant archaeologist that the proposed change would not alter the conclusion set out in the report or would not result in any additional archaeological concerns.

ii. If the person referred to in subsection 20 (1) or 21 (1) determined that an archaeological assessment report was not required under subsection 20 (4) or 21 (3), as the case may be, the opinion of that person that the proposed change does not alter that determination.

4. The person has received one of the following with respect to the proposed change:

i. If a heritage assessment report was required to be submitted under subsection 23 (2.1), the opinion of the persons who prepared the report that the proposed change would not alter the recommendations set out in the report or would not result in any new or increased impacts to heritage attributes that are subject to evaluation under subsection 23 (1).

ii. If the person referred to in subsection 23 (1) determined that a heritage assessment report was not required under subsection 23 (2), the opinion of that person that the proposed change does not alter that determination.

(2) The changes mentioned in paragraph 2 of subsection (1) are the following:

1. A change to the size or location of an area used for temporary storage of equipment or supplies.

2. A reduction in the size of the project location, as long as there are no changes to the infrastructure or equipment that forms part, or is proposed to form part, of the renewable energy generation facility.

3. A change to the location where the renewable energy generation facility connects, or is proposed to connect, to,

i. a transmission system with respect to which, pursuant to agreements, the Independent Electricity System Operator has authority to direct operations, or

ii. the distribution system of the distributor in whose distribution service area the renewable energy generation facility is located.

4. A change in respect of a communications tower.

5. A change in the location of fencing.

6. A change to the make, model, arrangement, tracking system, number or name plate capacity of solar photovoltaic collector panels used, or proposed to be used, at the renewable energy generation facility, as long as the change would not result in an increase in the emission of sound from any component in or at the facility.

7. A change in respect of a fibre optic communications line.

(3) A person who makes any of the changes described in subsection (2) shall do the following:

1. Give written notice of the change to the Director and to the Ministry’s district manager in each district in which the project location is situated within 30 days after making the change.

2. If the person has a website, promptly post a copy of the written notice given under paragraph 1 on the person’s website and maintain it on the website for at least 60 days.

4. Section 13 of the Regulation is amended by adding the following subsection:

(5) The definition of “sound power level” in section 1 does not apply for the purposes of Table 1.

5. (1) Subsection 25 (1) of the Regulation is revoked and the following substituted:

(1) In conducting a records review mentioned in paragraph 1 of subsection 24 (1), a person who, as part of a renewable energy project, proposes to engage in an activity described in Column 1 of the Table to this section shall ensure that a search for an analysis of the records set out in Column 2 of the Table opposite the description of the activity are conducted in respect of the project location for the purpose of making the determinations set out in Column 3 of the Table opposite the description of the activity.

(2) The Table to section 25 of the Regulation is revoked and the following substituted:

Table

 

Item

Column 1

Description of activity

Column 2

Records to be searched and analyzed

Column 3

Determination to be made

1.

Any of the following activities:

  1. The construction, installation or expansion of a transmission or distribution line.

  2. The expansion of an existing transformer station, distribution station or transportation system.

  3. If it is engaged in with respect to a Class 3 solar facility, any construction, installation or expansion in addition to the activities described in paragraphs 1 and 2.

Records that relate to provincial parks and conservation reserves and that are maintained by the Ministry of Natural Resources and Forestry.

Whether the project location is in a provincial park or conservation reserve or within 50 metres of a provincial park or conservation reserve.

2.

Any of the activities described in Item 1.

Records that relate to natural features and that are maintained by,

i. the Ministry of Natural Resources and Forestry,

  ii. the Crown in right of Canada,

iii. a conservation authority, if the project location is in the area of jurisdiction of the conservation authority,

iv. each local and upper-tier municipality in which the project location is situated,

  v. the planning board of an area of jurisdiction of a planning board in which the project location is situated,

vi. the municipal planning authority of an area of jurisdiction of a municipal planning authority in which the project location is situated,

vii. the local roads board of a local roads area in which the project location is situated,

viii.  the Local Services Board of a board area in which the project location is situated, and

ix. the Niagara Escarpment Commission, if the project location is in the area of the Niagara Escarpment Plan.

Whether the project location is,

i. in a natural feature,

  ii. within 50 metres of an area of natural and scientific interest (earth science), or

iii. within 50 metres of a natural feature that is not an area of natural and scientific interest (earth science).

3.

Any activity other than the activities described in Item 1.

The records described opposite Item 1.

Whether the project location is in a provincial park or conservation reserve or within 120 metres of a provincial park or conservation reserve.

4.

Any activity other than the activities described in Item 1.

The records described opposite Item 2.

Whether the project location is,

i. in a natural feature,

  ii. within 50 metres of an area of natural and scientific interest (earth science), or

iii. within 120 metres of a natural feature that is not an area of natural and scientific interest (earth science).

6. Section 32.1 of the Regulation is amended by adding the following subsection:

(1.1) Despite subsection (1), this Part does not apply in respect of a change to which section 9.1 applies.

7. (1) Subsection 54 (1) of the Regulation is amended by striking out “(2), no person shall construct, install or expand a wind turbine that meets the following criteria” in the portion before paragraph 1 and substituting “(2.1), no person shall construct, install or expand a wind turbine that meets all of the following criteria”.

(2) Paragraph 3 of subsection 54 (1) of the Regulation is revoked and the following substituted:

3. Either one of the following criteria is met:

i. The wind turbine has a sound power level that is greater than or equal to 102 dBA.

ii. The height of the wind turbine, excluding the length of any blades, is equal to or greater than 70 metres.

(3) Section 54 of the Regulation is amended by adding the following subsection:

(2.1) Subsection (1) does not apply in respect of,

(a) a wind turbine that is approved as part of a Class 3 wind facility before May 1, 2016; or

(b) any changes to a wind turbine mentioned in clause (a) other than a change that would increase the wind turbine’s octave-band sound power levels (linear weighted), as calculated in accordance with the standard specified in paragraph 1 of subsection 1 (6.1), unless there would be no resulting increase in the sound level at any noise receptor within 1,500 metres of the turbine.

(4) Subsection 54 (3) of the Regulation is amended by striking out “expanding a wind turbine shall submit, as part of the application for the issue of the renewable energy approval or environmental compliance approval, a report prepared in accordance with the publication of the Ministry of the Environment” and substituting “expanding the wind turbine shall submit, as part of the application for the issue of the renewable energy approval or environmental compliance approval, a report prepared in accordance with the application of the Ministry of the Environment and Climate Change”.

(5) Clause 54 (4) (b) of the Regulation is revoked and the following substituted:

(b) the application is in respect of one or more wind turbines that are to form part of a renewable energy generation facility consisting of 26 or more wind turbines, any of which has,

(i) a sound power level greater than or equal to 102 dBA and less than 107 dBA, or

(ii) a height, excluding the length of any blades, equal to or greater than 70 metres; or

(6) The following provisions of the Regulation are amended by striking out “102 dBA” wherever it appears and substituting in each case “102 dBA or a height, excluding the length of any blades, equal to or greater than 70 metres”:

1. Clauses 54 (5) (a), (b) and (c).

2. Clause 54 (5) (d), in the portion before subclause (i).

3. Clause 54 (5) (e), in the portion before subclause (i).

(7) Subclause 54 (5) (e) (ii) of the Regulation is amended by striking out “unless paragraph 2 of subsection (1.2) has ceased to apply under subsection (1.4), or” at the end and substituting “unless the person proposing to engage in the project did not apply for the renewable energy approval or environmental compliance approval within the period of time specified in paragraph 2 of subsection (1.4), or”.

(8) Subclause 54 (5) (e) (iii) of the Regulation is amended by striking out “unless paragraph 4 of subsection (1.2) has ceased to apply under subsection (1.5)” at the end and substituting “unless the person proposing to engage in the project did not apply for the renewable energy approval or environmental compliance approval within the period of time specified in paragraph 2 of subsection (1.5)”.

8. (1) Subsection 55 (1) of the Regulation is amended by striking out “mentioned in subsection 54 (1)” in the portion before clause (a) and substituting “mentioned in subsection (1.1)”.

(2) Section 55 of the Regulation is amended by adding the following subsection:

(1.1) The wind turbines referred to in subsection (1) are wind turbines that meet the following criteria:

1. The wind turbine has a name plate capacity of greater than or equal to 50 kW.

2. The wind turbine is not located in direct contact with surface water other than in a wetland.

3. The wind turbine has a sound power level that is greater than or equal to 102 dBA.

(3) The following provisions of the Regulation are amended by striking out “subsection (1)” wherever it appears and substituting in each case “subsection (2)”:

1. Subsection 55 (2.1).

2. Subsection 55 (2.2).

3. Subsection 55 (2.3).

4. Subsection 55 (2.4), in the portion before paragraph 1.

5. Subsection 55 (2.5), in the portion before paragraph 1.

(4) The Table to section 55 of the Regulation is revoked and the following substituted:

Table

 

Item

Column 1

Number of wind turbines calculated in accordance with subsection (2)

Column 2

Sound power level of wind turbine (expressed in dBA)

Column 3

Total distance from the centre of the base of the wind turbine to a noise receptor (expressed in metres)

1.

1-5

102

550

2.

1-5

103 - 104

600

3.

1-5

105

850

4.

1-5

106 - 107

950

5.

6-10

102

650

6.

6-10

103 - 104

700

7.

6-10

105

1000

8.

6-10

106 - 107

1200

9.

11-25

102

750

10.

11-25

103 - 104

850

11.

11-25

105

1250

12.

11-25

106 - 107

1500

9. The Regulation is amended by adding the following section:

Certain wind turbines, requirement re report

55.1 (1) If the issue of a renewable energy approval or an environmental compliance approval is required in respect of the construction, installation or expansion of one or more wind turbines mentioned in subsection (2), the person who is constructing, installing or expanding the wind turbine shall submit, as part of the application for the issue of the renewable energy approval or environmental compliance approval, a report prepared in accordance with the publication of the Ministry of the Environment and Climate Change entitled “Noise Guidelines for Wind farms”, dated October 2008, as amended from time to time and available from the Ministry.

(2) The wind turbines referred to in subsection (1) are wind turbines that meet the following criteria:

1. The wind turbine has a name plate capacity of greater than or equal to 50 kW.

2. The wind turbine is not located in direct contact with surface water other than in a wetland.

3. The wind turbine has a sound power level that is less than 102 dBA.

4. The wind turbine has a height, excluding the length of any blades, equal to or greater than 70 metres.

10. Section 61 of the Regulation is amended by adding the following definition:

“pre-2016 Regulation” means this Regulation as it read on December 31, 2015.

11. (1) Subsection 63 (2) of the Regulation is amended by striking out “of this Regulation” and substituting “of the pre-2016 Regulation”.

(2) Section 63 of the Regulation is amended by adding the following subsection:

(3) If a person other than a person described in subsection (1) has submitted an application for a renewable energy approval on or before April 30, 2016, the definition of “woodland” as it read in the pre-2016 Regulation continues to apply to all references to “woodland” in this Regulation.

12. Item 14 of Table 1 to the Regulation is amended by striking out “standard CAN/CSA-C61400-11-07, “Wind Turbine Generator Systems — Part 11: Acoustic Noise Measurement Techniques”, dated October 2007, including the overall” in Column 2 and substituting “the standard specified for the wind turbine in subsection 1 (6.1). The data shall also specify each wind turbine’s overall”.

13. The following provisions of the Regulation are amended by striking out “Ministry of the Environment” wherever it appears and substituting in each case “Ministry of the Environment and Climate Change”:

1. Subsection 1 (1), the definition of “Financial Assurance Guideline”.

2. Paragraph 5 of subsection 35 (1.4).

3. Clause 35 (2) (a).

4. Paragraph 5 of subsection 54 (1.4).

5. Subsection 54 (2).

6. Paragraph 5 of subsection 55 (2.4).

7. Subsection 55 (3).

8.  Table 1.

14. The following provisions of the Regulation are amended by striking out “Ministry of Natural Resources” wherever it appears and substituting in each case “Ministry of Natural Resources and Forestry”:

1. Subsection 1 (1), the definition of “lake trout lake”.

2. Subsection 1 (1), the definition of “Natural Heritage Assessment Guide”.

3. Subsection 1 (9).

4. Subsection 23.1 (2).

5. Clause 27 (2) (a).

6. Clause 27 (3) (a).

7. Clause 27 (6) (b).

8. Subsection 28 (1).

9. Subsection 28 (2).

10. Clause 28 (3) (c).

11. The Table to section 30.

12. Section 34.

13. Subsection 37 (2).

14. Subsection 38 (2).

15. Subsection 41 (5).

16. Subsection 43 (3).

Commencement

15. This Regulation comes into force on the later of May 1, 2016 and the day it is filed.