The ministry considered all comments received during the comment period in response to the posting. A description of the effect of consultation on this decision is outlined below.
Regulatory Amendments to O. Reg. 359/09 under the Environmental Protection Act
Prior to these amendments coming into effect, no specific process existed under the regulation to deal with a situation where a proponent proposed 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.
Comments received on the proposed regulatory amendments related to project changes were mixed. While some preferred a more flexible process with discretion to request additional notice and public consultation, others suggested a more defined and structured process.
Consistent with the regulatory proposal, O. Reg. 359/09 has been amended to give the Director authority to require a proponent to update project documentation, provide additional notifications and conduct additional public meetings in response to the proposed changes. In response to comments received, the regulation is being further amended to document a clear, explicit process for making changes to approved and proposed projects. Sections 11, 12, 16.0.1, 18, 32.1, 32.2, 32.3, and 32.4 of O. Reg. 359/09 have been amended/added.
The process will provide greater certainty as to how project changes will be addressed either at the ministry review stage, or as possible alterations to an approval. There is also discretion to ask for public notice, public meetings and/or additional information, where necessary, based on the impact of the proposed changes. This approach allows increased transparency when a change is being proposed by providing a means by which interested parties are made aware of them.
The regulatory proposal identified the relevant milestone of transition for the proposed amendments as the issuance of a notice of final public meeting.
Comments received on this proposed transition provisions were mixed. Some expressed concerns about overarching transition rules with regard to older projects nearing completion while others were not supportive of transition provisions suggesting that the amendments should apply to all projects that have yet to receive approval or to begin commercial operation.
In response to comments received, the transition provisions for the regulatory amendments have been revised to identify the issuance of a notice of first public meeting as the relevant milestone:
- Proponents that have issued a notice of proposal to engage, or where not applicable, a notice of first public meeting, prior to January 1, 2011 would be permitted to continue under the 2009/2010 pre-submission rules and retain the ability to elect into the 2011 rules. Alternatively they may elect to follow the new (2012) pre-submission rules.
- Proponents who have issued a notice of proposal to engage or where not applicable notice of first public meeting between January 1, 2011 and July 1, 2012, can continue under the 2011 pre-submission rules or elect to follow the new (2012) pre-submission rules.
- Proponents who have not issued a notice of proposal to engage or where not applicable notice of first public meeting before July 1, 2012 would be required to follow the new (2012) pre-submission rules.
Two exceptions exist with regard to the above transition provisions:
- Amendments dealing with participating receptors would apply to proponents who have not issued notice of final public meeting, or if a notice is not required where an application has not been submitted before July 1, 2012.
- Amendments related to the change process are not subject to transition provisions and are effective immediately.
Sections 61 and 62 of O. Reg. 359/09 have been amended and sections 62.1, 62.2, 62.3, 62.4, 64.1 and 64.2 added.
These transition provisions take into account projects already significantly underway by allowing projects the option to continue to follow the requirements under which they have already started the REA process, if the relevant milestone is met and ensures that clear rules for the applicability of the amendments exist.
Written confirmation and comment letters from the Ministry of Natural Resources (MNR) and Ministry of Tourism, Culture and Sport (MTCS)
Comments received on the proposed regulatory amendments related to MNR/MTCS confirmation and comment letters were mixed. Comments ranged from support for the streamlining efforts to opposition to the proposed process change. Some of the opposing comments reflected a misunderstanding of the existing REA process and submission requirements.
As a result, sections 16, 17, 18 and item 10 of Table 1 of O. Reg. 350/09 have been amended as described in the regulatory proposal.
This amendment allows proponents to meet requirements concurrently and provide additional flexibility in the pre-submission process without compromising the rigour of the REA process. The confirmation and comment letters continue to be required as part of the application for approval. As well, the cultural and natural heritage assessments continue to be available before the final public meeting. The public maintains the ability to provide comments at the final public meeting, in respect of the natural and cultural heritage assessment reports which 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.
Cultural Heritage Self-Screening
Comments received on the proposed regulatory amendments related to archaeological and heritage resource screening checklists were mixed. There was a general consensus that the checklists improved transparency and clarity of the existing self-assessment process, though there was some concern raised about potential negative impacts to resources as a result of continuing to allow self- assessment.
As a result, sections 1, 20, 21, 22, and 23 of O. Reg. 359/09 and items 4 and 10 of Table 1 of O. Reg. 350/09 have been amended as described in the regulatory proposal.
The amendments improve transparency and accountability within the self-assessment process as the new amended regulation will require that the results of the checklists be summarized where the project requires a Design and Operations report. The Design and Operations report for a project is made available through Aboriginal engagement and public consultation processes.
Minimal comments were received regarding the proposed amendment to heritage assessments. In response, sections 19 and 23 of O. Reg. 359/09 have been amended as described in the regulatory proposal.
The amendment allows for increased clarity and transparency with respect to assessing potential impacts to cultural heritage resources.
Solar Name Plate Capacity Definition
No comments were received regarding the proposed amendment to the definition of solar name plate capacity. As a result, sections 1 and 4 of O. Reg. 359/09 have been amended as described in the regulatory proposal.
The amendment aligns the definition in the regulation with how the Ontario Power Authority defines name plate capacity for solar microFIT projects and is in-line with the government’s original intent to exclude these types of projects from the REA process.
Noise Setbacks for Wind Turbines (approved before September 24, 2009)
Minimal comments were received regarding the proposed amendment to noise setbacks for wind turbines approved before September 24, 2009. As a result, sections 33 54, 54.1 and 55 of O. Reg. 359/09 have been amended as described in the regulatory proposal.
The amendment standardizes the regulatory requirements for wind facilities which are being moved from their originally approved locations, or increasing name plate capacity or increasing sound power level of turbines.
Comments received on the proposed regulatory amendment related to project notification were mixed. Most comments supported the amendment, with some suggesting additional notification bodies and alternate means of notification. Minimal comments opposing the proposed amendment were received.
As a result, sections 15 and 54.1 of O. Reg. 359/09 have been amended as described in the regulatory proposal.
The amendment allows for increased transparency by requiring that a broader group of stakeholders is given direct notice of proposed renewable energy projects, turbine layouts and the occurrence of public meetings required under the regulation.
Comments received on the proposed regulatory amendment related to participating receptors were mixed, with many opposing the change. It is the ministry’s position however, that this change clarifies the REA requirements and reflects the policy intent of the original provision.
As a result, section 1 of O. Reg. 359/09 has been amended as described in the regulatory proposal.
The amendment aligns the regulation with the current guidance (Technical Guide for Renewable Energy Approvals).
Spill containment around transformer substations
Comments received on the proposed regulatory amendment related to spill containment around transformer substations were mixed. Some comments suggested that the requirements be limited to certain types and sizes. Some of these comments reflected a misunderstanding of the requirements and its scope of applicability (i.e. transformers vs. transformer substations).
As a result, item 4 of Table 1 of O. Reg. 359/09 has been amended as described in the regulatory proposal.
The proposed amendment clarified the regulatory requirements, bringing them in-line with conditions of approval currently applied to all transformer substations.
Regulatory Amendments to Reg. 334 under the Environmental Assessment Act
Roads on Crown Land
No comments were received regarding the proposed amendment to roads on Crown land. Section 15.0.2 of Regulation 334 has been amended as described in the regulatory proposal.
Environmental Activity and Sector Registry (EASR)
The ministry has also added a provision to section 9 of O. Reg. 359/09 to exempt persons who engage in a renewable energy project from the obligation to obtain an REA if the project activities are prescribed under the Environmental Activity and Sector Registry (EASR), if further complementary regulations are made. The projects that would be subject to self-registration (permit by rule) under EASR could be specified in a future regulation under the Environmental Protection Act, but it is administratively efficient to create the authority now in the REA regulation to recognize this future approval pathway.
The ministry will be posting potential regulations for small-scale ground-mounted solar, on-farm anaerobic digestion and landfill gas electricity generation for public comment in the near future.
The ministry Statement of Environmental Values was considered in the development of these regulatory amendments. The regulation takes an ecosystem approach and supports the principle of pollution prevention by facilitating the development of renewable energy generation which is a cleaner, less polluting source of electricity than fossil fuel-based generation. These amendments encourage increased clarity and public transparency and will further support Ontario’s green economy by providing clear requirements for the planning and development of renewable energy projects in a timely manner. Amendments are in keeping with the principle of continuous improvement, as changes will strengthen and streamline existing requirements.