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June 01, 2009

Ontario moves to replace environmental assessment for renewable energy projects with streamlined approval process

Ontario is poised to replace the environmental assessment (EA) of most renewable energy projects with a streamlined approval process under the Environmental Protection Act (EPA). It will also replace the leave to appeal provisions under theEnvironmental Bill of Rights (EBR) with a third party right of appeal of the single renewable energy approval to be introduced under the EPA (Renewable Energy Approval). The proposals are designed to resolve EA issues that threatened to slow or even derail the government’s plans for the rapid deployment of renewable energy projects.

On June 9, 2009, the Ministry of the Environment (MOE) posted on the Environmental Registry a package of new and amended regulations intended to implement the Green Energy and Green Economy Act, 2009 (GEA). Comments on the proposals must be submitted by July 24, 2009. The package consists of amendments to three regulations under the Environmental Assessment Act (EA Act) and two regulations under the EBR, as well as a discussion paper for a proposed new Renewable Energy Approval Regulation under the EPA. The table below outlines the main proposals in the package.

The Renewable Energy Approval Regulation will set out the detail of the streamlined single approval process for renewable energy projects that was heralded by the GEA. The process relies on a “complete submission” by the proponent. Most proponents will have to undertake community consultation before applying for a Renewable Energy Approval, and to document how any concerns raised were addressed. Both the proposed project and the final decision will have to be posted on the Environmental Registry and certain stakeholders notified. Third parties will have 15 days to appeal to the Environmental Review Tribunal. The appeal process must be completed within 9 months.

The Ministry of Natural Resources has also posted for comment on the Environmental Registry its proposed approval and permitting requirements for renewable energy projects.

 

New Regulation

Description

Proposed Renewable Energy Approval Regulation under theEPA (Discussion Paper)

The paper sets out the “complete submission” requirements for an application for a Renewable Energy Approval, including plans, studies, public notice and community consultation, the general requirements for all facilities, and technology-specific requirements that apply to the different types of facilities (i.e., land-based and off-shore wind turbines, biogas anaerobic digesters, biomass thermal treatment, landfill gas facilities, hydro electric facilities, and solar photovoltaics). The discussion paper also proposes generic setbacks (ranging from 50-120 metres) from natural heritage features. Setbacks for wind turbines range from 550 m to 1500 m from the “closest point of reception”, depending on the number of units and the noise levels produced. Other technology-specific setbacks are proposed. Third parties will have 15 days from notice of the MOE’s decision to appeal to the Environmental Tribunal. The appeal process must be completed within 9 months.

Proposed Amendments

Description

O. Reg. 116/01 (Electricity Projects), under the EA Act

Amendments create an exception for most renewable energy generation facilities (as defined in the Electricity Act, 1998) so that this regulation and the EA Act will not apply to the establishment or change of such facilities. However, individual EAs will still be required for new hydro electric facilities of 200 MW or larger and expansions to existing facilities that would result in a 25% increase in nameplate capacity to 200 MW or more. The regulation also clarifies the application of exemptions for generation facilities by the Crown, municipalities or public bodies.

R.R.O. 1990, Reg. 334 (General) , under the EA Act

Renewable energy generation facilities and testing facilities carried out by the Crown, municipalities or public bodies will be exempt from the EA Act. In addition, any associated undertakings of the Crown (building an access road, a dock, a disposition of crown land, etc.), as well as roads and water crossings undertaken by a municipality that are required for the implementation of prescribed projects will also be exempt.

O. Reg. 101/07 (Waste Management Projects), under the EA Act

Most renewable energy generation facilities that are also a waste disposal site (for example, a site where biomass is disposed of through thermal treatment) will be exempt from this regulation and the EA Act.

O. Reg. 681/94 (Classification of Proposals for Instruments), under theEBR

A Renewable Energy Approval will be classified as a Class II instrument under the EBR, and the MOE will be required to post notice of proposals for such approvals on the Registry.

O. Reg. 73/94 (General), under the EBR

The EBR provisions allowing leave to appeal will not apply to a proposal to issue, amend or revoke a Renewable Energy Approval. The leave to appeal process under the EBR is replaced by a right of appeal by third parties under the EPA.

On the Horizon

A number of additional or amended regulations will be required to complete the implementation of the Green Energy Act. For example, the Ministry of Energy and Infrastructure (MEI) will introduce a regulation under the Electricity Act, 1998 to clarify that “associated or ancillary equipment, systems, and technologies” will include transmission connecting a proposed renewable energy facility to the existing transmission or distribution electricity grid, and roads and other transportation infrastructure (e.g. access roads, ferry dock) required to connect the renewable energy project to existing transportation systems. MEI will also be defining the terms “biomass”, “biogas” and “biofuel” in a proposed regulation under the Electricity Act, 1998, and will confirm whether existing usage of these terms will exclude energy generated from non-organic waste.

MOE is currently considering complementary amendments to Reg. 347 to facilitate: the intermediate processing of biomass materials before being used to generate electricity, and the use of biomass from the processing of agricultural materials for other purposes, such as for energy in a manufacturing process. The ministry is looking for feedback on: the types of biomass materials to be dealt with in the amendments; rules and limitations on their handling, processing and use; and changes to existing waste management approval requirements.

W+SEL will continue to follow the implementation of the GEA and post E-Alerts as relevant developments occur. In the meantime, if you have any questions on the approval of renewable energy facilities or EAs in general, contact Paul Manning or Juli Abouchar.

For more information, contact:

Paul Manning, Partner
Direct: 416-862-4843
pmanning@willmsshier.com

Juli Abouchar, Partner
Direct: 416-862-4836
jabouchar@willmsshier.com