Review and Variance – Noise Complaint
Oldman 2 Wind Farm Limited (“Oldman 2”) filed an application for a review of Decision 3521-D01-2015, which dealt with noise complaints from Mr. Yanke and Mr. Huebner in respect of the Oldman 2 wind farm’s compliance with AUC Rule 012: Noise Control (“Rule 12”). In that decision, the AUC held that Oldman 2 was not in compliance with Rule 12, as it did not meet the permissible sound level of 40 dBA Leq nighttime at the Yanke and Huebner residences. The AUC had ordered Oldman 2 to restrict operations of wind turbines at the Oldman 2 wind farm contributing to the non-compliance.
Oldman 2 submitted that the AUC made errors of law or jurisdiction in directing the restricted operation of the Oldman 2 wind farm. Oldman 2 alleged that the AUC:
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failed to consider, or misconstrued the permissible sound level applicable at the Yanke and Huebner residences (located 315 and 475 from turbines on the Oldman 2 wind farm), arguing that the AUC had to determine the cumulative sound level existing at the time of the construction of the residences in question;
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erred in rejecting Oldman 2’s approach to determining the cumulative sound levels that existed at the time the residences were constructed; and
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was required to go through the exercise of determining a “correct” cumulative sound level in order to compare that figure to the permissible sound level set out in Rule 12.
Oldman 2 submitted that Decision 3521-D01-2015 has forced the restriction of operations of the wind farm at nighttime, reducing the revenue generated by the wind farm. Oldman 2 estimated the lifetime loss of production totalled approximately 9,500 MWh.
Mr. Huebner submitted a letter of comment to the AUC, stating that little has changed in respect of the noise levels on his residence, and submitted that nothing short of removing the offending turbine would remedy his concerns.
Mr. Yanke also submitted a letter of comment stating that the noise levels at his residence had not changed, leading him to question whether Oldman 2 was complying with Rule 12. Mr. Yanke also posed questions in respect of how the AUC planned to enforce Decision 3521-D01-2015, and requested that an ongoing data log be provided to ensure that permissible nighttime sound levels are being observed.
The AUC held that the purpose of Rule 12 is to protect persons living near a facility from noise emanating from the facility. Rule 12 does not govern the conduct of a resident living near such facilities. Accordingly, the AUC held that the determination of the permissible sounds levels uses a cumulative sound level, which includes the assumed or measured ambient sound level, and any existing or approved (but not yet constructed) energy related facilities. In this light, the AUC held that Rule 12 must be given a broad and liberal construction in a manner which meets the purpose of the case at hand.
The AUC found that the original hearing panel correctly took into account the fact that Mr. Yanke and Huebner’s houses were purchased two years after Oldman 2 had obtained approval.
The AUC held that Oldman 2 failed to demonstrate that the hearing panel committed any error of law or jurisdiction in Decision 3521-D01-2015 that could lead the AUC to materially vary or rescind its decision. Accordingly, the AUC dismissed Oldman 2’s review application.
