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Regulation Proposal Notice:   EBR Registry Number:   011-5932
Title:
Amendments to O.Reg. 359/09 (Renewable Energy Approvals under Part V.0.1 of the Act), Reg. 334 (General) and the Technical Guide to Renewable Energy Approvals
 
Ministry:
Ministry of the Environment
Date Proposal loaded to the Registry:
April 02, 2012
 
 
Keyword(s):   Electricity  |  Environmental Assessment  |  Legislation
Related Act(s):   Environmental Assessment Act, R.S.O. 1990  |  Environmental Protection Act, R.S.O. 1990
The comment period for this proposal is now over.
 
Description of Regulation:

The Renewable Energy Approval (REA) regulation (O. Reg. 359/09) is intended to support the Ontario Government’s Green Energy initiative to expand renewable energy generation, encourage energy conservation and promote the creation of clean energy jobs. The Renewable Energy Approval process is based on clearly communicated complete submission requirements, whereby proponents of renewable energy projects know in advance what studies and reports are expected of them in preparing a complete application for an environmental approval.

The Ministry of the Environment (MOE) is proposing regulatory amendments to O.Reg. 359/09 under the Environmental Protection Act (EPA) and to Reg. 334 under the Environmental Assessment Act (EAA) to streamline the regulatory process for renewable energy projects as part of the response to the Feed-in-Tariff (FIT) review, and provide additional clarity.

A number of revisions and updates to the Ministry’s Technical Guide for Renewable Energy Approvals (Technical Guide) are also being proposed to provide additional guidance in support of the proposed amendments and in response to comments from industry and stakeholders coming out of the FIT review. The purpose of the Technical Guide is to provide an explanation of the requirements to complete an application for an REA in accordance with O. Reg. 359/09 under the EPA.

The proposed draft regulations and revised Technical Guide are attached to this notice; plain language descriptions of the proposed amendments and revisions/updates can be found below. The summary descriptions below are for explanatory purposes and the attached regulation and Technical Guide should be consulted for precise wording of proposed amendments and guide revisions (see links on the right hand side of this notice, under Additional Information).

Proposed Regulatory Amendments to O. Reg. 359/09 under the Environmental Protection Act

Written comments from the Ministry of Natural Resources and Ministry of Tourism, Culture and Sport

Currently the final public meeting for a proposed project cannot be held until certain government documents are available. An amendment is being proposed to remove the requirement that written confirmations or comments related to natural and cultural heritage from the Ministry of Natural Resources (MNR) and Ministry of Tourism, Culture and Sport (MTCS) be made available prior to the final public meeting.

The confirmation and comment letters will continue to be required as part for the application for approval. As well, the cultural and natural heritage assessments will continue to be available before the final public meeting.

The public will maintain the ability to provide comments at the final public meeting, in respect of the natural and cultural heritage assessments which would continue to be required to be made available in advance of the final public meeting. The MNR and MTCS confirmation and comment letters can also be reviewed once an application is made to the Ministry.

These proposed amendments will be made to sections 16, 17 and 18 of O. Reg. 359/09.


Cultural Heritage Self-Screening

Under the current rules, proponents can conduct a self-assessment to determine whether engaging in the project will have an impact to cultural heritage resources.

An amendment is being proposed to remove this self-assessment and replace it with screening criteria which proponents may use to determine whether the full cultural heritage assessment requirements are needed. If there is a low potential for the presence of an archaeological or heritage resource at the project location based on the criteria, the full assessment requirements would not apply. The proposed amendment would allow for increased clarity and transparency with respect to assessing potential cultural heritage impacts.

Proposed changes related to cultural heritage self-screening would be to sections 1, 20, 21, 22, and 23 of O. Reg. 359/09 and items 4 and 10 of Table 1 to O. Reg 359/09.


Heritage Assessments

Under the current rules, proponents are required to complete a heritage assessment; however, the current regulation does not provide much direction on the specific requirements.

An amendment is being proposed to clarify the processes by specifying the information that should be included in the heritage assessment report.

The proposed amendment will allow for increased clarity and transparency with respect to assessing potential cultural heritage impacts.

The proposed changes related to heritage assessments will be made to sections 19 and 23 of O. Reg. 359/09.


Solar Name Plate Capacity Definition

An amendment is being proposed to revise the definition of name plate capacity as it applies to solar facilities. The definition will clarify that the name plate capacity is the lesser of the total design capacity of the solar panels or the maximum power output of the inverters. Under the current definition, the name plate capacity refers to the total design capacity of the generation units, meaning the total output of all solar panels regardless of the power lost through the inverters in the conversion of the electricity from direct current to alternating current.

The proposed amendment will align the definition in the regulation with how the Ontario Power Authority defines name plate capacity for solar microFIT projects.

The proposed amendment will bring the definition in the regulation in line with the government’s original intent to exclude microFIT projects from the REA process.

The proposed changes related to name plate capacity will be made to sections 1 and 4 of O. Reg. 359/09.


Noise Setbacks for Wind Turbines (approved before September 24, 2009)

An amendment is being proposed to clarify that proponents of certain wind projects - those that obtained a Certificate of Approval prior to O. Reg. 359/09 coming into effect - who wish to make changes to their facility by moving turbines from originally approved locations, increasing name plate capacity or increase sound power levels will be required to meet the noise setbacks (.e.g. minimum 550m) outlined in sections 53, 54 and 55 of the regulation in respect of the turbines that are proposed to be changed.

The proposed amendment will standardize the regulatory requirements for wind facilities which were approved before September 24, 2009 but are to be changed in these ways.

The proposed change related to noise setbacks for wind turbines will be made to section 33 of O. Reg. 359/09.


Project Notification

Under the current rules, proponents proposing to engage in renewable energy projects are required to provide project, meeting and turbine layout notices to several stakeholders, as outlined in the regulation.

An amendment is being proposed which will require proponents to provide notification to NAV Canada, Transport Canada (when the project is a wind facility) , and the owner or operator of oil or gas pipelines within 200 metres of project location, in addition to the stakeholders already outlined in the regulation.The proposed amendments will allow for increased transparency by requiring that a broader group of stakeholders are given direct notice of proposed renewable energy projects, turbine layouts and the occurrence of public meeting meetings required under the regulation.

The proposed changes related to project notification will be made to sections 15 and 54.1 of O. Reg. 359/09.


Participating Receptors

An amendment is being proposed to clarify that in order for a noise or odour receptor to benefit from the exception in s. 1(6) on the grounds that the landowner is participating in the project, part of the facility must be located on the property once it is constructed in accordance with the REA. Currently, under the regulation the exception applies if the landowner has entered into an agreement with a proponent to locate part of the project on their property.

The proposed amendment will clarify that the participating receptor exception is not meant to apply to those proponents who have entered into lease options that do not result in part of the facility actually being located on the property. The proposed amendment will make the regulatory language reflect the policy intent of the provision and the current guidance (Technical Guide for Renewable Energy Approvals).

The amended provision is proposed to apply to proponents that have not distributed a notice of final public meeting (where public meetings are required) or submitted an application (where public meetings are not required) by the time the amendments are brought into force. Proponents that have reached this stage in the pre-submission process are able to continue under the current rule.

The proposed changes related to participating receptors will be made to section 1 of O. Reg. 359/09.


Spill containment around transformer substations

The current rules require that a description of sewage works and stormwater management facilities be included as part of a Design and Operations Report (DOR), which form part of a complete REA application for most renewable energy projects.

An amendment is being proposed which will require that the DOR, where the project includes a transformer substation, to include a description of spill (i.e. secondary) containment works facilities as well as equipment and measures to prevent spills and mitigate their impacts. The proposed amendment will clarify the current regulatory requirements.

The proposed changes related to spill containment will be made to item 4 of Table 1 in O. Reg. 359/09.


Project changes

No specific process exists under the current regulation to deal with a situation where a proponent proposes to make changes to a project after an initial notice but before submitting an application to the Ministry, while the application is under government review, or after receiving an approval. Amendments are being proposed that would require an applicant to notify the Director of a proposed change to a project and to specify that the Director may require a proponent to update project documentation, provide additional notifications and conduct additional public meetings in response to the proposed changes.

The proposed amendment will allow for increased clarity and provide a means by which interested parties are made aware of changes to renewable energy projects. Further information regarding project changes can be found in the proposed Technical Guide revisions section below in this posting.

The proposed changes related to project changes will be made to sections 11,16.0.1, 18, 32.1, 32.2, 32.3, and 32.4 of O. Reg. 359/09.


Transition Provisions

Generally speaking, proponents of projects for which a project notice, was distributed under subsection 15(1) before 2011 remain subject to certain parts of the regulation which existed in 2010 unless they have opted into some of these provisions of the new regime that began in 2011.

To take account of the new amendments, a provision is being proposed that will allow such proponents to continue under the 2010 pre-submission rules, if the proponent issued a notice of final public meeting before the 2012 amendments take effect. Proponents of the projects described above to whom section 16 does not apply can continue under the 2010 rules and may continue to elect into the 2011 rules.

For projects where project notice was distributed between 2011 and the date 2012 amendments take effect, proponents can continue under the 2011 pre-submission rules, if the proponent has issued a notice of final public meeting before the 2012 amendments take effect. Proponents of the projects described above to whom section 16 does not apply must have distributed drafts of the project documentation to municipalities before the amendments take effect. In either case, if the relevant milestone has not been reached, proponents would be required to apply the 2012 rules in order to move forward.

Also where notice of a final public meeting has been distributed before the 2012 amendments take effect (where section 16 applies) or where an application has been made to the Director (where section 16 does not apply), the amendment to the exception for participating receptors would not apply.

The proposed transition provisions ensure clear rules for applicability of the proposed amendments exist, and take account of projects already significantly underway.

The proposed changes related to transition provisions will d be found in sections 61, 62, 62.1, 62.2, 62.3 and 62.4 of O. Reg. 359/09.


Proposed Regulatory Amendments to Reg. 334 under the Environmental Assessment Act


Roads on Crown Land

An amendment is being proposed that would create an exemption under the Environmental Assessment Act (EAA) for undertakings carried out by MNR in respect of all roads and water crossings that provide access to a renewable energy generation facility or testing facility (with the exception of roads for waterpower projects, which would continue to be subject to the EAA).

Currently, undertakings in respect of multi-use roads and water crossings on Crown land (those that are not constructed only for the purpose of implementing a renewable energy project or testing project) are subject to the EAA and must undergo an environmental assessment under MNR’s Resource Stewardship and Facility Development Class Environmental Assessment.

In line with the original policy intent for renewable energy projects, these roads would be evaluated as part of the renewable energy project in the REA process. The proposed amendment will not apply in respect of any Class Environmental Assessments commenced before the amendment comes into effect.

The proposed amendment will reduce duplication and fulfill the original policy intent by requiring the environmental assessment work to be done as part of the REA process.

The proposed changes related to roads on Crown land will be made to section 15.0.2. of Reg. 334. 

Reg. 334 is also being amended to revoke several obsolete provisions and make other administrative changes.



Proposed Technical Guide Revisions

The following proposed revisions to the Technical Guide for Renewable Energy Approvals are outlined below by chapter. No significant content changes are being proposed to chapters 5, 7, 8, and 11. Minor editorial changes may also be proposed in all chapters of this guide.

Chapter 1

Proposed revisions include:

  • Updates related to the proposed solar name plate capacity definition, the written comments from the Ministry of Natural Resources and Ministry of Tourism, Culture and Sport and cultural heritage self-screening regulatory amendments.
  • Clarifying related environmental work that may be conducted by Hydro One or a Local Distribution Company (LDC) outside of the REA process.
  • Clarifying that meteorological towers which are proposed to be part of the ongoing operation of wind turbines, (e.g. when required by the IESO for provision of telemetric data) would be considered to be part of the renewable energy generation facility.
  • Update providing greater clarity with respect to the importance of identifying and resolving potential endangered species issues before submitting an application for an REA.

Chapter 2

Proposed revisions include: 

  • Updates related to the written comments from the Ministry of Natural Resources and Ministry of Tourism, Culture and Sport and project notification regulatory amendments.

Chapter 3

Proposed revisions include:

  • Update related to the proposed project notification regulatory amendment.

Chapter 4

Proposed revisions include:

  • Update related to the proposed cultural heritage self-screening regulatory amendments.

Chapter 6

Proposed revisions include:

  • Updates related to the proposed spill containment around transformer substation and cultural heritage self-screening regulatory amendments.
  • Clarifying the importance of thoroughly assessing construction-related water-taking needs before applying for an REA.

Chapter 9

Proposed revisions include:

  • Update related to the proposed heritage assessments regulatory amendments.
  • Providing more detail about what information should be included when assessing noise from solar farms, clarify that vacant lots are considered noise receptors and that cumulative noise impacts should be considered if there are any other solar projects nearby.

Chapter 10

This is a proposed new chapter which provides clarity to what constitutes a minor versus significant project change and outlines the process and requirements of a project change at various stages: pre-submission, during an application review, and post REA approval.

Appendices

Minor updates related to the proposed project notification and the definition of solar name plate capacity regulatory amendments.

Purpose of Regulation:

The Ministry of the Environment (MOE) is proposing regulatory amendments to O.Reg. 359/09 under the Environmental Protection Act (EPA) and to Reg. 334 under the Environmental Assessment Act (EAA) to streamline the regulatory process for renewable energy projects as part of the response to the Feed-in-Tariff (FIT) review, and provide additional clarity.

A number of revisions and updates to the Ministry’s Technical Guide for Renewable Energy Approvals (Technical Guide) are also being proposed to provide additional guidance in support of the proposed amendments and in response to comments from industry and stakeholders coming out of the FIT review.

Other Information:

More information on the Renewable Energy Approval can be found at http://www.ene.gov.on.ca/en/business/green-energy.

Public Consultation:

This proposal was posted for a 45 day public review and comment period starting April 02, 2012. Comments were to be received by May 17, 2012.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.

Other Public Consultation Opportunities:

The Ministry received public input as part of the Ministry of Energy and Ontario Power Authority’s Feed-In Tariff Program Review process. The Ministry continues to meet with organizations on a one-on-on and informal basis, as requested.

Regulatory Impact Statement:

The proposed amendments will not change the regulatory burden for proponents of renewable energy projects subject to the regulation. The proposed changes will provide enhanced clarity with respect to the regulation’s requirements and therefore assist proponents in meeting the requirements. Some proposed requirements to the notification, consultation, and reporting requirements may increase work for proponents but will contribute to more robust consultations and the submission of complete applications and therefore assist proponents meet the requirements of the REA process in a more timely manner.

 
Contact:

Alyssa Cates
Manager, Green Energy
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Branch
Green Energy Approvals
135 St. Clair Avenue West
Toronto Ontario
M4V 1P5
Phone: (416) 325-7893

Additional Information:

The following government offices have additional information regarding this Proposal. To arrange a viewing of these documents please call the Ministry Contact or the Office listed below.

Modernization of Approvals Branch
135 St. Clair Avenue West
Floor 12
Toronto Ontario
M4V 1P5
Phone: (416) 325-7619