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Environmental Review Tribunal dismisses appeal against Armow Wind development in Kincardine
By Liz Dadson

www.kincardinetimes.com

Technology

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The Environmental Review Tribunal has dismissed an appeal against the Armow Wind industrial development in Kincardine, paving the way for the project to proceed later this year.

In its 85-page decision, the tribunal, chaired by Maureen Carter-Whitney, said the appellants, Ken and Sharon Kroeplin, failed to establish that the project will cause serious harm to human health.

" ... the only evidence before the tribunal that the post-turbine witnesses suffered harm as a result of exposure to wind turbine emissions was the personal assessment of each of those witnesses," states the decision.

"Furthermore, the respondents (the Ontario Ministry of the Environment and Armow Wind) countered those assessments through evidence from medical experts that contradicts the association made by the post-turbine witnesses between their exposure to wind turbines and their health conditions. 

"The respondents’ witnesses noted that many of the symptoms experienced by the post-turbine witnesses are common and that some of them suffer from serious health conditions or take medications that could cause them to experience such symptoms. 

"They also discussed research showing that factors such as attitude toward turbines or economic impact may influence the reactions people report with respect to living near wind energy projects."

The decision states that the tribunal has repeatedly held that lay witnesses may testify as to the symptoms they experience, but that evidence of a health professional is necessary to confirm the medical conditions from which they suffer and the cause of those conditions, whether it is due to sound pressure levels directly or to annoyance. 

"No such confirmatory evidence was provided in this case and there is also expert evidence before the tribunal that casts significant doubt on the association made by the post-turbine witnesses between turbines and their health," states the decision. "The tribunal finds that the appellants’ evidence does not support the drawing of an inference of causation."

The tribunal states that the appellants attempted to provide proof that the Armow Wind project will result in serious harm to health through the evidence of acoustician Rick James.

"In effect, Mr. James is offering an explanation for the mechanism by which health effects might occur without offering any evidence that health effects will occur with this project," states the decision. "In particular, he was not able to identify a setback distance from a turbine where effects either will or will not occur.

"In conclusion, after weighing and evaluating the evidence as a whole, the tribunal finds that the appellants have failed to establish, on a balance of probabilities, that engaging in the project in accordance with the REA (Renewable Energy Approval) will cause serious harm to human health.

As to whether the appellants have met the evidentiary burden to prove serious physical or psychological harm, the tribunal said that, as in the Dixon case, the appellants did not provide professional medical opinions to diagnose the health complaints from the post-turbine witnesses and to establish a causal link between those complaints and wind turbine noise or noise from transformers.

 

"As importantly, the tribunal has the benefit of the testimony of Drs. Mundt, McCunney and Moore (experts for the respondents) that reinforces previous tribunal findings that the post-turbine witnesses need to be properly diagnosed by a medical professional and that there is no reliable evidence to demonstrate that the project will cause serious physical or any other serious harm," states the decision.

"The tribunal, therefore, finds that the appellants have not met the evidentiary burden to prove that the impugned provisions or government conduct will cause serious psychological or physical harm."

With regard to the Section 7 Charter claim, to establish that there has been a deprivation of security of the person, "this onus has not been discharged in this case," states the tribunal. "... the burden has not been met by the appellants here. The constitutional challenge therefore fails on the evidence.

"In conclusion, the tribunal finds that the appellants have not established, on the facts of this case, that their rights to security of the person under s. 7 of the Charter have been violated."

To read the entire decision, click here.

"We are pleased with the ruling by the Environmental Review Tribunal," said Jody Law, representing Samsung Pattern Armow Wind Ontario GP, the approval holder for the Armow Wind development.

"The ruling upholds the Armow Wind project's Renewable Energy Approval from the Ministry of the Environment, which is one of the strictest permitting regimes in North America. We look forward to beginning construction on Armow Wind later this year."

Huron-Kinloss Against Lakeside Turbines (HALT) is reportedly not surprised to lose the appeal, but plans to take its fight to divisional court.

The appeal was launched Oct. 23 by the Kroeplins, against the proposed Armow Wind Class 4 wind facility, a 92-turbine, 180-megawatt industrial wind development in Kincardine. It was approved by the director of the MOE through the REA process, Oct. 9.



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