Can the Municipality of Clarington, Ontario, by bylaw, force
Hydro One to submit a groundwater study in order to build a
$296 million transformer station, that has been directed to be
built by the Ontario Power Authority, and approved by the Ministry
of the Environment?
Hydro One is planning to build the transformer station in order
to replace electricity that will be lost when the Pickering nuclear
station goes out of service in 2018. But Clarington residents,
backed by a couple of MPP's (John O'Toole, MPP for Durham
and Michael Harris, MPP for Kitchener) and local conservation
authorities, worry that the project may pose an unknown threat to the
drinking water of 250,000 people in the Durham region area.
Hydro One says there is no other viable alternative site
because the transformer must be located at the junction of two
existing transmission lines, in order to allow power to be
transferred from the higher-voltage line to the lower one. (This
does seem like a good reason.) Hydro One has threatened to sue
the municipality if it passes a bylaw requiring it to submit a
groundwater study in order to get a building permit. Hydro One says
any such bylaw would conflict with the Ontario Environmental
Protection Act (EPA).
Municipalities generally cannot pass bylaws that conflict with
or frustrate the purpose of provincial legislation. The provincial
Planning Act, under section 62,
exempts Hydro One projects from municipal approval requirements if
an approval for a project is obtained under the Ontario EPA.
Under the Ontario EPA, the project was given the go-ahead. It
did not require a full environmental assessment. Under EPA rules,
the project is classified as a "minor transmission
facility", which only triggered a "Class Environmental
Under the public consultation requirements of the EPA,
interested individuals have 30 days to review a publicly available
draft Environmental Study Report and to
request that the MOECC require a more fulsome environmental review
(called a Part II Order Request) of a project. Then Environment
Minister, Jim Bradley, received numerous such requests from MPPs,
and other members of the public, but he determined that such a
review was unnecessary because "no significant environmental
effects are predicted."
The proposed site is located on soils that are categorized as
"non-vulnerable" (sandy till) which is approximately 10
to 30 metres thick. Hydro One is proposing the excavation of only 5
metres below the surface in order to install structural supports
and containment systems for the transformer oils used by the
facility. These structures will be located above the water table.
The MOE noted that there are 20 nearby private wells and the
majority obtain water from deep aquifers approximately 50 to 100
metres below the ground. The MOE says "the potential for
impacts to these private wells is not anticipated." Hydro One
also says it has built transmission facilities throughout the
province and has yet to find a case where it has negatively
affected well water quality.
We previously blogged about a different Ontario
municipality's attempts to block a wind energy development that
had provincial approval. The province does have the upper hand in
these conflicts with municipalities over energy
infrastructure, except when politics get in the way. But
municipalities can add costs and delay to projects they oppose.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).