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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 Assessment Act (EAA).

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 EAA.

Under the Ontario EAA, the project was given the go-ahead. It did not require a full environmental assessment. Under EAA rules, the project is classified as a “minor transmission facility”, which only triggered a “Class Environmental Assessment”.

Under the public consultation requirements of the EAA, 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.

By Jennifer Kalnins Temple and Dianne Saxe

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