Report on May 9th ERT Hearing on the Human Health Appeal
The first day of the Environmental Review Tribunal on the human health appeal consisted of the opening statement by APPEC lawyer Eric Gillespie, disputes over admissibility of evidence, and testimony of the first witness.
APPEC Opening Statement
Eric Gillespie explained that the present appeal will build on a 2011 ERT decision. In the Erickson appeal in Chatham-Kent the ERT, after hearing from 25 expert witnesses, concluded the following:
1. Sleep disturbance, headache, ear pressure, vertigo, visual blurring, tachycardia, irritability, and panic episodes can all be symptoms of exposure to wind turbines.
2. The symptoms indicate “extreme annoyance” and are “serious” effects.
3. It is not necessary to demonstrate the mechanism causing the effects, whether noise, low-frequency sound, or infrasound.
4. Wind turbines can cause adverse effects “if placed too close to people. The debate has now evolved to one of degree.”
Consequently, APPEC will call 17 witnesses. Eleven of these live near the Melancthon I and II, Kruger, Clear Creek, Talbot, Wolfe Island, and Kent Breeze wind projects. They have two elements in common: similar health issues and residence within two km of a wind turbine.
Three witnesses live near the proposed Ostrander Point project and have pre-existing conditions that make them susceptible to wind turbine exposure.
Three expert witnesses will provide relevant background and opinion. Dr. Robert McMurtry and Robert Thorne, Ph.D. were qualified as medical witnesses in the Erickson appeal. Dr. Sarah Laurie has wide experience assessing patients living near wind projects.
In contrast, the Ministry of Environment (MOE) and Gilead Power are calling witnesses on acoustical engineering who will testify that the Ostrander Point project is the same as other projects in complying with the 550-m setback and 40-dbA noise level based on noise modelling irrespective of geography or demographics. APPEC will have little conflict with such evidence.
Other expert witnesses for MOE and Gilead will revisit the issue of causation. But as the Erickson appeal demonstrated, the debate is over. APPEC accepts the ERT finding that turbines located beyond 550 m cause “annoyance.”
Ministry of Environment Statement
Lawyer Sylvia Davis made no opening statement except to dispute APPEC’s interpretation of the Erickson ruling. She identified six witnesses: Denton Miller, MOE Approvals; Brian Howe, HGG Engineering; and Drs. David Colby, Cornelia Barnes and Kieran Moore.
Gilead Power Statement
Lawyer Bryn Gray made no opening statement. He identified six witnesses: Shant Dakouzian, Helimax noise assessments; Al Lightstone, acoustical engineer; G. Leventhall and Werner Richards, on low-frequency sound and infrasound; and Chris Olsson, Ph.D. and Dr. Robert McCunney, both on health studies.
Ministry of Environment Background Witness
Coreen Schofield, senior program coordinator, MOE Approvals and Access, displayed a series of maps identifying where APPEC witnesses live in proximity to wind turbines. She explained that “receptor” refers to a building, structure, or vacant land used in the determination of setbacks. She said that Noise Assessment Reports are based on computer models and that complaints are handled by the MOE’s compliance branch.
All parties had previously agreed that Ms. Schofield would provide exclusively background information on witness locations. Mr. Gillespie therefore objected when Ms. Davis introduced a document that cited municipal populations, the number of project participants who are receptors, and the number of receptors closer than APPEC’s witnesses to turbines. To enable the hearing to carry on, the ERT Panel ruled that all the exhibits (maps and explanatory documents) would be accepted for identification purposes, but the parties would make submissions later on relevance.
A new Gilead Power lawyer, Daryl Cruz, questioned the status of the medical records provided by APPEC witnesses. He argued that they should be accepted as business records of medical services but not as records giving medical opinions. Such opinions constituted hearsay unless doctors were called to confirm the truth of the opinions or diagnoses.
Ms. Davis stated that medical records had also been submitted for witnesses’ family members. Witnesses could not testify on this hearsay evidence.
Mr. Gillespie argued that the records had been sought by MOE and Gilead and that their provision was supposed to avoid the need to call doctors. Though witnesses might not be able to cite diagnoses, they could testify to their own experience and their direct observations of family members.
Co-chair Robert Wright said the ERT Panel would defer a decision on medical records in order to give time for submissions. In the interim it would accept witnesses’ testimony, barring hearsay, and would weight the evidence.
Other Medical Information
Mr. Cruz questioned the admissibility of interrogatories (178-item questionnaires) and other forms completed by witnesses upon the request of MOE and Gilead. The ERT Panel directed all parties to discuss the problem. An agreement was reached to treat the interrogatories as preparatory material but to accept the forms as equivalent to witness statements and admit them as evidence, subject to removal of hearsay.
Testimony of Monica Elmes
Monica Elmes, the first of APPEC’s witnesses, described the experience of living near the 20 wind turbines visible from her home. Her family had been approached about participating in the wind project, but research led to her questioning the impacts. As a result she has been ostracized by participating neighbours. She is presently the spokesperson for the Chatham-Kent Wind Action Group.
Though Ms. Elmes had expected protection from regulatory setbacks, the noise level was obvious when the turbines started operating. The noise affects enjoyment of her property and sound levels inside her house during the summer. Audible noise disrupts sleep in a house that relies on open windows for cooling.
Her own sleep is not affected during the winter, but her husband suffers from continuing sleep disturbance and has also had attacks of vertigo. He finds relief by sleeping away from home or in the unfinished basement, which requires his shutting down the furnace and thereby cutting off heat to the house.
Ms. Elmes also spoke about the overall impact on the quality of her life. She said she is distressed when some neighbours call late at night complaining to her about the turbines. On the other hand, friends from outside the area now decline to visit.
Before wind turbine operation Ms. Elmes said the ambient night-time noise levels in her house measured 25-27 dbA. Now the level is in the 40’s to low 50’s. So far she has made 180 complaints to the MOE’s “spills line” about the lack of compliance. MOE field officers came several times but not when the noise was as loud, and they brought no equipment to measure it. However, they advised her to keep filing complaints. She also asked for the wind company’s noise protocol and abatement policies, but she was told these would only be available through a Freedom of Information Act request.