TransAlta MidAmerican Partnership

Transcription

1 Decision 3183-D Sundance 7 Power Plant June 9, 2015

2 Alberta Utilities Commission Decision 3183-D Sundance 7 Power Plant Proceeding 3183 Application June 9, 2015 Published by the: Alberta Utilities Commission Fifth Avenue Place, Fourth Floor, 425 First Street S.W. Calgary, Alberta T2P 3L8 Telephone: Fax: Website:

3 Contents 1 Introduction Project description Background Role and authority of the Commission Evidentiary matters Admissibility of expert evidence The expert evidence tendered in this proceeding Commission findings Pre-hearing motions and procedural matters The Gunn Métis request for confidential treatment of maps Gunn Métis Local 55: Confidentiality request for will-say statements Cymbaluks: Motion for further and better responses to information requests Cymbaluks: Motion to file late evidence Discussion of the issues Consultation Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Views of the Paul First Nation Commission findings Noise Views of the applicant Original NIA Updated NIA Updated NIA noise model and ground attenuation factor Noise wall Sound source identification Existing energy-related facilities Low frequency noise Post-construction sound level monitoring Views of the Cymbaluks Original NIA Updated NIA Updated NIA noise model and ground attenuation factor Noise wall Sound source identification Existing energy-related facilities Summer Village of Kapasiwin Views of the Gunn Métis Commission findings Decision 3183-D (June 9, 2015) i

4 8 Vegetation and wildlife Views of the applicant Views of the Gunn Métis Commission findings Waterbodies Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Views of the Paul First Nation Commission findings Air emissions Government objectives standards on air quality Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Commission findings Health Standards Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Views of the Paul First Nation Commission findings on expert objectivity and weight Commission findings on air quality in the project area Construction and traffic Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Views of the Paul First Nation Commission findings Safety Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Commission findings Visual impacts Views of the applicant Views of the Cymbaluks Views of the Gunn Métis Views of the Paul First Nation Commission findings Siting Views of the applicant ii Decision 3183-D (June 9, 2015)

5 15.2 Views of the Cymbaluks Views of the Gunn Métis Views of the Paul First Nation Commission findings Corporate structure Views of the applicant Views of the Cymbaluks Commission findings Conclusion Decision Appendix A Registered parties with standing Appendix B Oral hearing registered appearances Appendix C Standing ruling Appendix D Standing ruling for the Paul First Nation Appendix E Letter to parties regarding public hearing Appendix F Ruling on confidentiality request by the Gunn Métis Local Appendix G Confidentiality ruling for the Gunn Métis will-say statements Appendix H Ruling on Cymbaluk request for further and better information responses 75 Appendix I AUC process to consider letter Appendix J TAMA Power list of commitments Decision 3183-D (June 9, 2015) iii

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7 Alberta Utilities Commission Calgary, Alberta Decision 3183-D Proceeding 3183 Sundance 7 Power Plant Application Introduction 1. In this decision, the Alberta Utilities Commission must decide whether to approve an application by 1 to construct and operate an 856-megawatt (MW) combined-cycle natural gas and steam generation facility designated as Sundance Sundance 7 (the project or proposed power plant) is proposed to be located in the Lake Wabamun area, in a greenfield site in the west half of Section 10, Township 52, Range 4, west of the Fifth Meridian, approximately seven kilometres southwest of the village of Wabamun and in close proximity to TransAlta Corporation s existing coal-fired power generation facilities (the project site). (TAMA Power or the applicant) filed its application pursuant to Section 11 of the Hydro and Electric Energy Act. The location proposed for this project is shown on the following map: Figure 1 - Sundance 7 proposed location R.4W.5M. 16 WABAMUN LAKE SUNDANCE INDUSTRIAL COOLING POND PROPOSED TAMA POWER SUNDANCE 7 T KEEPHILLS INDUSTRIAL COOLING POND 1 The nature of is set out in detail in Section 16. Decision 3183-D (June 9, 2015) 1

8 1.1 Project description 3. Sundance 7 is described in the application as an 856-MW combined-cycle natural gas and steam generation facility, capable of being operated as a base load power plant and designed to operate at full capability for sustainable periods of time. The project consists of two natural gas combustion turbine generators, two heat recovery steam generators and one steam turbine generator. Natural gas would be delivered to the project site via a pipeline to a gas metering station also located on the project site. 4. Sundance 7 is proposed to be located in Parkland County in an area of high industrial activity, that includes active mines and power generation facilities. Existing industrial facilities located in the area include TransAlta s existing Sundance Generating Facility units 1 to 6, Keephills Generating Facility units 1 to 3 and the Highvale Coal Mine, and other facilities owned and/or operated by Zargon Oil and Gas Ltd., New Star Energy Ltd., and ATCO Gas and Pipelines Ltd. 5. TAMA Power stated that the project would allow TransAlta (through TAMA Power) to continue supporting the local economy and the existing labour force. If approved, the proposed power plant would create approximately 500 jobs during construction and another 35 full-time positions during operations TAMA Power anticipates an in-service date of December Sundance 7 would be interconnected to the Alberta Interconnected Electric System through AltaLink Management Ltd. s 500-kilovolt network. AltaLink Management Ltd. would file a separate application with the Commission to consider the transmission facilities required for the interconnection. 7. During the course of the proceeding TAMA Power made various commitments, a list of which is attached as Appendix J. 1.2 Background 8. TAMA Power filed its application with the Commission to construct and operate Sundance 7 on April 23, The application was registered as Application and Proceeding The Commission issued information requests to TAMA Power on May 15, 2014, and August 19, TAMA Power provided responses to the Commission on August 7, 2014, and September 5, The Commission issued a notice of application on September 10, An information session was held by the Commission in Stony Plain, Alberta on October 2, In response to its notice, the Commission received statements of intent to participate from the following parties: Ferne Cymbaluk Philip Cymbaluk David Cymbaluk Tammi Cymbaluk Breymann Summer Village of Kapasiwin 2 Transcript, Volume 7, page 1141, lines Decision 3183-D (June 9, 2015)

9 Linda Duncan Donna Thomas Barbara Henderson Mewassin Community Council Samson Cree Nation Alexis Nakota Sioux Nation Gunn Métis Local 55 on behalf of the Lac St. Anne Métis (Gunn Métis) Paul First Nation 11. Ferne Cymbaluk, Philip Cymbaluk, David Cymbaluk and Tammi Cymbaluk Breymann (the Cymbaluk family) formed a group (the Cymbaluks). Subsequently, Donna Thomas and the Summer Village of Kapasiwin joined the Cymbaluks. 12. The Commission received letters in support of the project from the Village of Wabamun, Parkland County, the Resource Industry Suppliers Association and the Building Trades of Alberta. 13. The Commission issued its ruling on standing and a notice of hearing on December 11, The parties who were granted standing are listed in Appendix A. The Commission s standing ruling is attached as Appendix C. 14. By letter dated February 20, 2015, the Paul First Nation requested to participate in the proceeding. The Paul First Nation was concerned with, among other things, the cumulative impacts to its aboriginal and treaty rights from increased traffic, noise and activity caused by the project. The Paul First Nation submitted that its members conducted hunting, trapping, gathering and other traditional activities on this land and requested more time to hire a third party to assess the compounding impact of the project on its traditional lands. 15. On February 27, 2015, the Commission issued a ruling with respect to the standing of the Paul First Nation. 3 In its ruling, the Commission determined that the Paul First Nation qualified for standing in the proceeding based on the nature of the project and associated impacts, and the assertion of a land-based claim with respect to land located within 800 metres of the project site. The Commission also granted the Paul First Nation a one-week extension for the filing of its evidence. The Commission s ruling is attached as Appendix D. 16. In its standing rulings, the Commission assumed, without deciding, that both the Gunn Métis and the Paul First Nation were entitled to exercise the rights they asserted. 17. The notice of hearing provided details of the application and scheduled the remaining process steps. 18. The hearing commenced on Monday, April 13, 2015, in Stony Plain, Alberta before Commission members Tudor Beattie, QC (Panel Chair) and Anne Michaud, and Acting Commission member Kate Coolidge. The hearing adjourned in Stony Plain on April 17, 2015, and resumed in Edmonton from April 20 to 21, Exhibit 3183-X0141, Standing ruling for Paul First Nation. Decision 3183-D (June 9, 2015) 3

10 19. Although most of the hearing was conducted in a public session, a portion of the evidence was subject to a confidentiality order pursuant to a request from the Gunn Métis and was heard accordingly. 20. The Cymbaluk family (Ferne, Philip, David and Tammi Cymbaluk Breymann), the Summer Village of Kapasiwin, the Gunn Métis and the Paul First Nation participated in the hearing. 2 Role and authority of the Commission 21. The Commission regulates the construction and operation of power plants in Alberta. Section 11 of the Hydro and Electric Energy Act states that no person may construct or operate a power plant without prior approval from the Commission. 22. When considering an application for a power plant, the Commission is guided by sections 2 and 3 of the Hydro and Electric Energy Act, and Section 17 of the Alberta Utilities Commission Act. 23. Section 2 lists the purposes of the Hydro and Electric Energy Act in the generation of electric energy. Those purposes include: to provide for the economic, orderly and efficient development and operation, in the public interest, of the generation of electric energy in Alberta; to secure the observance of safe and efficient practices in the public interest in the generation of electric energy in Alberta; and to assist the government in controlling pollution and ensuring environment conservation in the generation of electric energy in Alberta. 24. Section 3 of the Hydro and Electric Energy Act requires the Commission to have regard for the purposes of the Electric Utilities Act when assessing whether a proposed power plant is in the public interest. The purposes of that act include the development of an efficient electric industry structure and the development of an electric generation sector guided by competitive market forces In Alberta, the legislature expressed its intention that electric generation is to be developed through the mechanism of a competitive, deregulated electric generation market. Section 3 of the Hydro and Electric Energy Act states that the Commission shall not have regard to whether the proposed power plant is an economic source of electric energy in Alberta or to whether there is a need for the electric energy to be produced by such a facility in meeting the requirements for electric energy in Alberta or outside of Alberta. Accordingly, in considering an 4 Electric Utilities Act, Section 5. 4 Decision 3183-D (June 9, 2015)

11 application before it, the Commission does not take into account the potential need and cost of a project As such, in the following assessment of whether the project is in the public interest, the Commission has not had regard to whether there is a need for the project proposed by the applicant. In considering this application, the Commission was also mindful of Section 19 of the Hydro and Electric Energy Act, which gives it the power to approve an application, approve it with conditions, or deny it. 27. The Commission s public interest mandate is found in Section 17 of the Alberta Utilities Commission Act, which states: Public interest 17(1) Where the Commission conducts a hearing or other proceeding on an application to construct or operate a hydro development, power plant or transmission line under the Hydro and Electric Energy Act or a gas utility pipeline under the Gas Utilities Act, it shall, in addition to any other matters it may or must consider in conducting the hearing or other proceeding, give consideration to whether the construction or operation of the proposed hydro development, power plant, transmission line or gas utility pipeline is in the public interest, having regard to the social and economic effects of the development, plant, line or pipeline and the effects of the development, plant, line or pipeline on the environment. 28. In Decision , 6 the Commission s predecessor, the Alberta Energy and Utilities Board (EUB or the Board), explained its approach to assessing whether the approval of a power plant is in the public interest, as follows: The determination of whether a project is in the public interest requires the Board to assess and balance the negative and beneficial impacts of the specific project before it. Benefits to the public as well as negative impacts on the public must be acknowledged in this analysis. The existence of regulatory standards and guidelines and a proponent s adherence to these standards are important elements in deciding whether potential adverse impacts are acceptable. Where such thresholds do not exist, the Board must be satisfied that reasonable mitigative measures are in place to address the impacts. In many cases, the Board may also approve an application subject to specific conditions that are designed to enhance the effectiveness of mitigative plans. The conditions become an essential part of the approval, and breach of them may result in suspension or rescission of the approval. In the Board s view, the public interest will be largely met if applications are shown to be in compliance with existing provincial health, environmental, and other regulatory standards in addition to the public benefits outweighing negative impacts. 5 Paragraphs 21 to 25 are substantially reproduced from AUC Decision : ENMAX Shepard Inc. Construct and Operate 800-MW Shepard Energy Enter, October 21, 2010 at paragraphs mutatis mutandis. 6 Decision : EPCOR Generation Inc. and EPCOR Power Development Corporation 490-MW Coal-Fired Power Plant, Application , December 21, Decision 3183-D (June 9, 2015) 5

12 29. The Commission is of the view that this approach to assessing whether a proposed power plant is in the public interest remains consistent with the purpose and intent of the statutory scheme. 30. Further, Rule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations and Hydro Developments applies to applications for a power plant governed by the Hydro and Electric Energy Act. The application must meet the informational and other requirements set out in Rule 007. Specifically, an applicant must provide technical and functional specifications, information on public consultation and environmental information, including a noise assessment. The requirements relating to noise control are set out in Rule 012: Noise Control. The applicant must also receive all approvals required pursuant to other applicable provincial and federal legislation. 3 Evidentiary matters 3.1 Admissibility of expert evidence 31. Expert evidence is opinion evidence on a scientific, technical or otherwise specialized matter provided by a person with specialized knowledge, experience or training. The Supreme Court of Canada succinctly explained the role of an expert witness in R. v. Howard when it stated: Experts assist the trier of fact in reaching a conclusion by applying a particular scientific skill not shared by the judge or the jury to a set of facts and then by expressing an opinion as to what conclusions may be drawn as a result The Supreme Court of Canada set out the test for admissibility of expert evidence in R. v Mohan. 8 To call expert evidence, a party must demonstrate that the evidence is relevant, necessary to assist the decision maker, and is not subject to an exclusionary rule Another important factor when considering expert evidence is the expert s independence and objectivity. On April 30, 2015, the Supreme Court of Canada issued a judgement White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 that directly addressed expert evidence and its relationship between independence, admissibility and weight: 10 The Supreme Court found that expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance: Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party s position over another. The acid test is whether the expert s opinion would not change regardless of which party retained him or her 11 7 R. v. Howard, [1989] 1 SCR R. v. Mohan, [1994] 2 S.C.R Ibid. 10 White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC SCC 23 at paragraph Decision 3183-D (June 9, 2015)

13 34. The Commission commented on the weighing of expert evidence in Decision : 12 When deciding what weight to give to the evidence provided by an expert witness, an important factor the Commission will consider is whether the expert witness provided an independent or objective opinion. The role and duties of an expert witness was considered in an English case known as The Ikarian Reefer. 13 That case and its implications were extensively discussed in Alberta Ltd. v. Adwood Manufacturing Ltd., a recent decision of the Alberta Court of Queen s Bench. The court summarized in part the duties and obligations of an expert witness, as described in the Ikarian Reefer, as follows: 1. Expert evidence presented to the Court should be and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise... An expert witness in the High Court should never assume the role of advocate [Emphasis added in the court s decision.] In the event that the Commission finds that an expert s evidence extends beyond the limits of his or her expertise, the Commission will take the approach outlined in Decision : 15 evidence provided by [an expert] in areas where he was clearly not qualified to opine, will be given the weight of a lay witness rather than the weight of a properly qualified expert in these areas. Where that evidence diverges from the evidence of a properly qualified expert witness, the evidence of the qualified expert witness will be preferred The Commission has adopted the approach described above when weighing the expert evidence proffered in this proceeding The expert evidence tendered in this proceeding 37. By letter dated April 6, 2015, the Commission advised the parties that it had dispensed with the need to qualify expert witnesses 17 and that it would not be necessary for counsel to request that their respective witnesses be qualified as an expert witness with regard to their pre-filed written evidence or testimony at the oral hearing. The Commission instructed the parties to file the curriculum vitae for their respective witnesses, in order for the Commission to be able to assess the weight attributable to the relevant evidence and opposing counsel may question a witness qualifications and credibility. 12 Decision : AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc. Heartland Transmission Project, Proceeding 457, Application , November 1, 2011, paragraph National Justice Compania S.A. v. Prudential Assurance Co. Ltd. (Ikarian Reefer)), [1993] 2 Lloyds Rep. 68 (Comm. Ct. Q.B. Div.) approved [1995] 1 Lloyds Re. 455 (C.A.) Alberta Ltd. v. Adwood Manufacturing Ltd. [2010] ABQB 133 at paragraph Decision : ATCO Electric Ltd. Eastern Alberta Transmission Line Project, Proceeding 1069, Applications and , November 15, Ibid, paragraph Exhibit 3183-X0233, Letters to parties re public hearing. Decision 3183-D (June 9, 2015) 7

14 38. The Commission also indicated in its April 6th letter that cost claims submitted by eligible intervener parties for consultants fees are not dependent upon those consultants being formally qualified as expert witnesses. A copy of the Commission s letter is attached as Appendix E. 39. TAMA Power, the Gunn Métis and the Cymbaluks each tendered expert evidence in support of their respective positions. 40. TAMA Power s expert witnesses were Dr. Rick Robinson, Dr. Don Davies, Chris Madland, James Wilkinson, Victor Young, and Corey De La Mare. James Farquharson and James Benya appeared as expert witnesses for the Cymbaluks. Andrew Read, Dr. Joseph C. Vipond and Karen Kubiski appeared as expert witnesses for the Gunn Métis. 41. TAMA Power argued that the Commission should give little weight to the opinion evidence of the interveners experts because those experts lacked the necessary expertise in the field outlined in their reports. The weight of the consultants evidence presented in the proceeding is discussed in greater detail in the relevant sections of this decision. 42. The Cymbaluks questioned the weight that the Commission should give to the evidence of TAMA Power s noise consultant, Mr. Young. Neither the Gunn Métis nor the Paul First Nation made submissions relating to TAMA Power s consultants Commission findings 43. The Commission heard expert opinion evidence on a host of subjects related to the project. This evidence was presented on behalf of the applicant, the Cymbaluks and the Gunn Métis. 44. No party submitted that any expert evidence should be excluded. 45. Because the Supreme Court of Canada issued the White Burgess decision after the completion of the oral portion of the public hearing, none of these witnesses were specifically asked if they could each fulfill their duty to provide fair, objective and non-partisan evidence. Notwithstanding, the Commission is satisfied that each of the experts who gave evidence in the proceeding was able and willing to carry out his or her respective duty to provide the Commission with fair and objective evidence. Accordingly, the Commission finds that all of the expert evidence filed met the threshold for admissibility from the perspective of independence. 46. The Commission finds that the witnesses listed below provided evidence that was consistent with their expertise and in a relatively objective manner. These experts demonstrated considerable knowledge of the issues raised in the hearing and demonstrated some flexibility in the views and positions that they presented to the Commission. The Commission found these witnesses to be credible and, subject to the exceptions discussed later in these findings, their evidence to be useful. Dr. Rick Robinson Chris Madland James Wilkinson Victor Young Corey De La Mare 8 Decision 3183-D (June 9, 2015)

15 Dr. Don Davies Andrew Read Karen Kubiski James Farquharson 47. The Commission is satisfied that Dr. Vipond is a licenced medical doctor with experience in emergency medicine. It is clear to the Commission that he has taken considerable interest in the issue of health effects from air emissions. His written evidence also included his interpretation and discussion of numerous published epidemiological reports and studies of air emissions. However, it is the Commission s view that Dr. Vipond lacks the necessary skills, experience and training to comment on the interpretation of epidemiological studies or air emissions modelling. Consequently, it gave little weight to this aspect of his evidence. 4 Pre-hearing motions and procedural matters 4.1 The Gunn Métis request for confidential treatment of maps 48. On October 16, 2014, the Gunn Métis requested confidential treatment of two maps identifying aboriginal harvesting locations within two kilometres of the project, pursuant to Section 13 of Rule 001: Rules of Practice. The Gunn Métis submitted that if these maps were made public, it could potentially result in a real and substantial risk of harm to its members ability to earn their livelihood because aboriginal harvesting locations are used for subsistence, income and cultural purposes In a letter dated October 29, 2014, 19 the Commission ruled on the motion and, for the reasons specified in that ruling, found that the maps identifying the location of harvesting grounds fell under the category of personal information. The Commission accepted that the maps satisfied the three-part test set out in Section 13(4)(b) of Rule 001, namely that the maps are personal in nature and have been consistently treated as confidential by the Gunn Métis, and that the Gunn Métis interest in keeping this information confidential outweighs the public s interest in the disclosure of this information. 50. The Gunn Métis also sought the Commission s leave to file the maps after the deadline for submissions had past, should the confidentiality ruling be granted. The Commission granted the Gunn Métis request and allowed the Gunn Métis to file the maps by November 4, A copy of the October 29, 2014 ruling is attached as Appendix F. 4.2 Gunn Métis Local 55: Confidentiality request for will-say statements 51. On February 18, 2015, the Gunn Métis filed a motion requesting that the will-say statements of its members and associated maps be treated as confidential pursuant Section 13 of Rule The Gunn Métis submitted that these statements and maps contained personal information that must be kept private because they included the location of aboriginal harvesting grounds Exhibit GML , Gunn Métis confidentiality motion. Exhibit AUC-3183, AUC ruling on confidentiality request by the Gunn Métis Local 55. Exhibit 3183-X0098, Gunn Métis motion for confidentiality for will-say statements. Decision 3183-D (June 9, 2015) 9

16 52. On February 26, 2015, the Commission issued a ruling granting the Gunn Métis request for confidential treatment of its will-say statements and associated maps. A copy of the ruling is attached as Appendix G Cymbaluks: Motion for further and better responses to information requests 53. Legal counsel for the Cymbaluks filed a motion on February 5, 2015, requesting that TAMA Power provide further and better responses to the information requests of the Cymbaluks. 22 The Commission denied the Cymbaluks motion. In its February 20, 2015 ruling, 23 the Commission found that TAMA Power s responses to the information requests were adequate in relation to the application and that providing further responses to the information requests may unduly burden TAMA Power, given the stage of the proposed power plant design. 54. The Cymbaluks also requested an extension of the intervener evidence submission deadline to one week after full and complete answers to their information requests had been provided. The Commission granted the Cymbaluks request, finding that a slight amendment to the process schedule would not prejudice any party involved in the proceeding. A copy of the ruling is attached as Appendix H. 4.4 Cymbaluks: Motion to file late evidence 55. The Cymbaluks filed a motion on March 16, 2015, in which they requested to submit further intervener evidence after the deadline for filing submissions had past. 24 In their request, made pursuant to Rule 001, the Cymbaluks sought permission to file an FDI Acoustics Inc. expert report related to noise modelling. The Cymbaluks explained that the noise modelling would be filed as soon as it became available and that notice was provided in their evidence that such information was to be filed. 56. The Commission ruled on March 24, 2015, allowing the FDI Acoustics Inc. report to be admitted as evidence. 25 The Commission considered that no party objected to the report being filed as evidence and found that the report was relevant to the issues raised in the proceeding. A copy of the ruling is attached as Appendix I. 5 Discussion of the issues 57. In this proceeding and during the seven-day oral hearing, the Commission heard and had to consider evidence on a number of issues relating to the project. The significant issues such as consultation, noise, air emissions, health effects, environmental effects, construction and traffic, safety, and visual impacts are addressed below. 58. In its submissions, the Gunn Métis asked the Commission to consider the Lac Ste. Anne Métis' Section 35 rights and the impacts to those rights as part of its Section 17 decision regarding the public interest. 26 However, a question of constitutional law was not Exhibit 3183-X0139, AUC Confidentiality Ruling for Gunn Métis will say statements. Exhibit 3183-X0091, Cymbaluk motion for further and better information responses. Exhibit 3183-X0130, Commission ruling on Cymbaluk request for further and better information responses. Exhibit 3183-X0188, Cymbaluk motion for Filing of FDI Acoustics Noise Modelling Results. Exhibit 3183-X0195, AUC process to consider letter. Transcript, Volume 7, page 1209, lines Decision 3183-D (June 9, 2015)

17 raised by the Gunn Métis, 27 nor was it advanced by the Paul First Nation. Consequently, the Commission makes no determination on the existence of aboriginal rights of these aboriginal groups in this decision. 59. In making its decision, the Commission has taken into account the evidence and submissions regarding potential direct and adverse impacts of the proposed power plant advanced by the interveners. In reaching the determinations set out in this decision, the Commission has considered all relevant materials comprising the record of this proceeding, including the evidence and submissions provided by each party. References in this decision to specific parts of the record are intended to assist the reader in understanding the Commission s reasoning relating to a particular matter and should not be taken as an indication that the Commission did not consider all relevant portions of the record as it relates to that matter. 6 Consultation 60. The Commission prescribes consultation requirements for applicants in Rule 007. Appendix A of Rule 007, Participant Involvement Program Requirements, requires applicants for power plants to include a description of their participant involvement program in their application. 61. The purpose of a public consultation program is to inform parties whose rights may be directly and adversely affected by a proposed application. Appendix A of Rule 007 specifies that a participant involvement program must be conducted before an application is filed and should include the distribution of a project-specific information package, responses to questions and concerns raised by potentially-affected persons, and a discussion of options, alternatives and mitigation measures. 6.1 Views of the applicant 62. TAMA Power stated that it developed a public involvement program for the project to build and maintain transparent and respectful relationships with stakeholders, establish a high level of inclusiveness when determining potentially affected parties, seek input into the design of the consultation process, provide timely and accurate project information, ensure stakeholders have an opportunity to raise concerns and discuss potential mitigation measures, and provide feedback to stakeholders on how their input was considered TAMA Power s public involvement program consisted of, among other things, public notification, personal consultation, and open houses. Consultation commenced in November 2013 with communications and engagements with nearby landowners, local and regional groups, municipalities, Members of the Legislative Assembly of Alberta and Ministers, aboriginal groups, and provincial and federal agencies. 64. A project information package was delivered to stakeholders, a project-specific website was created, and a news release was issued in January The information package contained a letter, a project information booklet, and the Commission s Public Involvement in Needs and Transcript, Volume 7, pages 1208 and Exhibit TAMAPOWE-3183, Application, PDF page 84. Decision 3183-D (June 9, 2015) 11

18 Facilities Applications brochure, and was sent to 498 stakeholders, including aboriginal groups. 29 Recipient stakeholders included municipal governments such as the Village of Wabamun, Parkland County, the City of Spruce Grove, the Town of Stony Plain, the Summer Village of Betula Beach, the Summer Village of Point Alison, the Summer Village of Kapasiwin, the Summer Village of Lakeview; regional groups such as the Committee on Keephills Environment (COKE), the Mewassin Community Action Council, the Wabamun Watershed Management Council, and the North Saskatchewan Watershed Alliance; the Parkland School Division; Keephills School; Alberta Environment and Sustainable Resource Development (ESRD); the Canadian Assessment Agency; local interveners within 2,000 metres of the project site boundary, and residents within the T0E 0N0 postal code. 65. Open houses were held on February 4, 2014, at the Sundance Training Center in Parkland County and at the Paul First Nation School on April 2, At each open house, TAMA Power presented information about the project such as the project schedule, air quality, noise, other environmental impacts and traffic. Staff responded to questions on the project s location, water usage, and air emissions. 66. TAMA Power conducted personal consultation with all landowners, residents, and occupants within 800 metres of the project site boundary, and notified residents within 2,000 metres of the project site boundary, the Paul First Nation, and the Enoch Cree Nation. TAMA Power also presented project information to COKE and the Wabamun Watershed Management Council. 67. Throughout the consultation process, TAMA Power heard concerns about traffic, air emissions, cumulative effects, light emissions, visual sightlines, visible plume, noise, socio-economic issues, rare plants, traditional land use, and water and aquatic resources. TAMA Power stated it took these concerns into account during the preliminary engineering phase of the proposed power plant and is considering an additional open house to address construction-related concerns. 68. Members of the Cymbaluk family were the only parties that objected to the project during personal consultation. TAMA Power stated that it has a long-standing relationship with the Cymbaluk family and had met with its members to introduce the project, and to discuss their concerns and mitigation measures. TAMA Power had preliminary discussions with the family members about a buyout of their property located adjacent to the project site but could not come to an agreement. The Cymbaluk family identified concerns regarding noise, risk, lighting, traffic, plume and emergency response planning. TAMA Power submitted that it has been listening to the Cymbaluk family s concerns and has adopted numerous mitigation measures to address those concerns. 69. TAMA Power conducted its First Nations engagement based on the direction provided by the Aboriginal Consultation Office, which informed TAMA Power that because the project was on private land, it was on the lower end of the consultation spectrum. The Aboriginal Consultation Office consequently directed TAMA Power to notify the Paul First Nation and the Enoch Cree Nation. It also directed TAMA Power to conduct a full consultation if a request was made for more information and a determination made that the project could adversely affect treaty rights. 29 Exhibit TAMAPOWE-3183, Application, PDF page Decision 3183-D (June 9, 2015)

19 70. TAMA Power s consultation with the Gunn Métis began after a Gunn Métis member contacted TAMA Power in February 2014 to state that the Gunn Métis was an aboriginal group with major concerns about Sundance 7, amongst other things. 30 A meeting was held on March 18, 2014, between the Gunn Métis and TAMA Power representatives from the Aboriginal Relations Office. On March 20, 2014, an was sent by the Gunn Métis to TransAlta s executives outside of the aboriginal relations group, including its Chief Executive Officer. This was seen by TAMA Power as a relationship-breaking move. 71. TAMA Power reached out to the Gunn Métis after it was granted standing by the Commission in December of At the hearing, TAMA Power stated that it would like to get to know the Gunn Métis community and its members better and has committed to meet again to start that process and develop a long-term relationship TAMA Power stated that TransAlta has had a long standing relationship with the Paul First Nation and have supported the community through education, employment and support for community wellness. 73. TAMA Power s consultation began in October 2013 with the Paul First Nation. TAMA Power submitted that extensive consultation had taken place and filed its consultation records detailing the various discussions and meetings with the Paul First Nation. According to TAMA Power, the Paul First Nation requested an open house for their community, which TAMA Power held on April 2, A total of 79 participants signed-in at the open house, where information was presented and questions were answered. After the open house, TAMA Power contacted the Paul First Nation on numerous occasions, offering a follow-up meeting to see if there were any questions about the project. On July 18 and September 24, 2014, TAMA Power met with the Paul First Nation and stated that no concerns were raised. From October to December, 2014, the Paul First Nation entered into its election period. During this time, the band manager left and communication between the parties became a challenge The Paul First Nation filed its statement of intent to participate on February 20, 2015, in which it expressed concerns with air emissions, environmental and health effects, unemployment and the loss of traditional land values and use, amongst other things. TAMA Power indicated that until this time, it was unaware that the Paul First Nation objected to the project. 75. TAMA Power submitted that the concern about gravesites raised by the Paul First Nation at the hearing, had not arisen prior, during its extensive consultations with the Paul First Nation. 6.2 Views of the Cymbaluks 76. The Cymbaluk family stated that TAMA Power was unwilling or unable to fully and adequately address their concerns. 33 The family has made multiple noise complaints to TransAlta about other facilities in the area and, while these complaints were not related to the project, the Cymbaluk family and TransAlta have been in contact. There have been many exchanges of s, phone calls and in-person meetings. The Cymbaluk family stated that family members Exhibit 3183-X0285, TAMA POWER Aids to Cross 1. Exhibit 3183-X317, TAMA Power Undertaking Responses 18 and 19. Exhibit 3183-X0320, TAMA Power Rebuttal Evidence - Sundance 7 - PFN Consultation Summary. Exhibit 3183-X0147, Submissions of David Cymbaluk, Philip Cymbaluk, and Ferne Cymbaluk - with Appendices A to H. Decision 3183-D (June 9, 2015) 13

20 would often call TransAlta instead of sending an , because that appeared to be TransAlta s preferred method of contact. 77. The Cymbaluk family submitted that TransAlta representatives have never sat down and tried to resolve their issues, and only provided reasons and excuses. 34 The Cymbaluk family stated that, for this reason, it could not trust TransAlta or TAMA Power. 6.3 Views of the Gunn Métis 78. The Gunn Métis submitted that TAMA Power s participant program had fallen short and, given the nature of the issues, more consultation should be required because the Gunn Métis was not given an opportunity to consult with TAMA Power to ensure its concerns were being addressed. 35 The Gunn Métis added that it had virtually no contact with TAMA Power prior to filing its statement of intent to participate with the Commission. 79. While TAMA Power may not have been aware of the Gunn Métis early on, the Gunn Métis expected that TAMA Power would welcome it and facilitate its involvement in the ongoing public consultation processes. 80. The Gunn Métis indicated that it attempted to engage with TAMA Power before the application was filed but that TAMA Power did not reciprocate or show an openness to act in a collaborative fashion until late January 2015, as the date of the hearing fast approached. If TAMA Power had involved the Gunn Métis in consultation and addressed its concerns, its participation in the hearing would have been avoided. 81. The Gunn Métis stated that it learned that TAMA Power generally gets to know the community first and then identifies the aboriginal community s priorities. Once those are known, TAMA Power can support the well-being of the community. The Gunn Métis stated it does not like this approach, adding that it is represented by a group of volunteers that did not have time to attend meetings that did not appear to be productive The Gunn Métis ed TAMA Power on February 24, 2014, to request a meeting. The Gunn Métis met with representatives of TAMA Power and TransAlta regarding Sundance 7 and TransAlta s other operations in the area on March 18, Following that meeting, the Gunn Métis and TransAlta tried to schedule another relationship-building meeting. 83. The Gunn Métis stated that it contacted TransAlta executives by on March 20, 2014, to ensure its concerns were being heard by decision-makers within the company and to attempt to establish leadership-to-leadership communication. The Gunn Métis stated that it had done this successfully with other proponents in the past and had been encouraged by other proponents to do so. 37 The Gunn Métis stated that it was unaware that this action was seen as a relationship-breaking move 38 and that it was not told to deal only with the aboriginal relations group. It added that it did not hear back from TAMA Power until after it was granted standing. Subsequently, on March 27, 2015, TAMA Power and the Gunn Métis met to discuss the project Transcript, Volume 4, pages , lines 24-25, Transcript, Volume 7, page 1256, lines Transcript, Volume 2, page 318, lines Transcript, Volume 2, page 277, lines Transcript, Volume 2, page 277, lines Decision 3183-D (June 9, 2015)

21 84. The Gunn Métis requested some direction from the Commission to ensure that TAMA engages meaningfully and concretely with the Local The Gunn Métis requested capacity funding from TAMA Power, stating that such funding would assist with technical and other support to conduct studies to enable it to fully engage in understanding and collaboratively designing mitigations to avoid impacts to its rights and to address other community concerns The Gunn Métis also requested that, as a condition for approval of construction and operation of Sundance 7 construction not be undertaken until the Gunn Métis Local and TAMA have jointly reported to the Commission that they believe that the participant involvement program requirements have been fulfilled and are able to provide the Commission with a list of concrete mitigations and accommodations agreed to for Sundance 7 as well as agreed-to processes to manage the relationship moving forward The Gunn Métis requested, among other things, that it wished to engage TAMA Power representatives in a full-day workshop focused on topics to facilitate knowledge sharing. 6.4 Views of the Paul First Nation 88. In its statement of intent to participate, the Paul First Nation expressed concerns with air emissions, environmental and health effects, unemployment and the loss of traditional land values and use. At the hearing, the Paul First Nation stated that it was concerned with the potential for graves on the project site. 89. The Paul First Nation stated that TAMA Power and TransAlta have supported the community and acted in good faith 42 and that funding is one of the key and critical components that has really hurt the Paul First Nation's ability to express its concerns The Paul First Nation acknowledged that TAMA Power has made many efforts to consult and that it could see that there has been an interest in trying to work together. The Paul First Nation stated that TAMA Power has people within its organization who certainly do care a great deal about the condition of the Paul First Nation and have made big efforts. It added that over the last two years, there certainly was regular interaction between TAMA Power, TransAlta and the Paul First Nation. 91. However, certain members of the Paul First Nation stated that they did not consider the open house held for them to be consultation, but simply an information session The Paul First Nation indicated at the hearing that other factors affecting it had limited its ability to fully participate in both consultation and the proceeding Transcript, Volume 7, page 1253, lines 1-3. Transcript, Volume 7, page 1255 lines Transcript, Volume 7, page 1262, lines Transcript, Volume 1, page 130, lines Transcript, Volume 1, page 133, lines Transcript, Volume 6, page 1123, lines Transcript, Volume 5, page 877, lines Decision 3183-D (June 9, 2015) 15

22 6.5 Commission findings 93. Rule 007 states that a participant involvement program must be conducted before a facility application is filed with the Commission. It is therefore a fundamental component of any facility application. 94. The participant involvement program conducted for this project must meet the requirements for consultation and notification set out in Rule 007. In assessing whether the program was adequate, the Commission considers whether landowners and other stakeholders, including First Nations and other aboriginal groups, were consulted prior to the filing of the application. It also considers the applicant s efforts to contact those persons or stakeholders, including the refusal of landowners or other stakeholders to engage in consultation. 95. TAMA Power s participant involvement program consisted of a mail out of project information packages to all stakeholders and personal consultation with stakeholders located within the project area, open houses, a project website, and ongoing efforts made to address concerns as they arose. On this basis, the Commission finds that the participant involvement program designed by TAMA Power met the requirements of Rule The Commission acknowledges that an effective consultation program may not resolve all stakeholder concerns. There may be situations where individual stakeholders may feel that the consultation effort, as it pertained to their interests specifically, was insufficient or superficial. Furthermore, the perceptions of the applicant and some interveners about the quality and effectiveness of the public consultation can sometimes be very different. This merely reflects the fact that the parties do not agree and is not the fault of the applicant nor the interveners. 97. The Commission finds that the efforts made by TAMA Power to ensure that there were multiple avenues for landowners and other stakeholders to obtain information or contact TAMA Power satisfy the requirements of Rule The evidence demonstrated that TAMA Power provided means for potentially affected stakeholders to make further inquiries, the open houses and publicly distributed information contained clear contact information, and those individuals who were required to be consulted personally also had contact information to reach TAMA Power if they had additional questions or concerns. The Commission finds that TAMA Power demonstrated a willingness to meet with stakeholders to discuss their concerns. In addition, TAMA Power appears to have been receptive and responsive when dealing with new concerns raised by stakeholders after its application was submitted to the Commission. 99. The Commission is satisfied that TAMA Power contacted, through personal consultation, landowners and other stakeholders including First Nations and other aboriginal groups, or that it made reasonable best efforts to contact them In Decision , the Commission made the following comments with respect to effective consultation under Rule 007: In the Commission s view, effective consultation achieves three purposes. First, it allows parties to understand the nature of a project. Second, it allows the applicant and the intervener to identify areas of concern. Third, it provides a reasonable opportunity for the parties to engage in meaningful dialogue and discussion with the goal of eliminating 16 Decision 3183-D (June 9, 2015)

23 or mitigating to an acceptable degree the affected parties concerns about the project. If done well, a consultation program will improve the application and help to resolve disputes between the applicant and affected parties outside of the context of the hearing room The Commission finds that TAMA Power s participant involvement program met the three objectives described above with respect to the Cymbaluks and the Paul First Nation. The Commission heard evidence of a long history of consultation with these parties dating back many years, and a commitment to ongoing consultation. Although the Paul First Nation considered that the open house held for its members was a presentation and not consultation, the Commission finds that this open house, held at the request of the Paul First Nation, provided the Paul First Nation members an opportunity to learn about the project and express their views The Commission understands that TAMA Power may not have been aware that the Gunn Métis had concerns with the project until after the Gunn Métis ed TAMA Power in In this regard, the Commission accepts TAMA Power s evidence that it contacted the Alberta Aboriginal Consultation Office for direction on which aboriginal groups it should consult about the proposed power plant, and that the Gunn Métis was not listed as a potentially affected aboriginal group. The Commission considers that the efforts made by TAMA Power to identify aboriginal stakeholders were reasonable in the circumstances, and that it consulted with the Paul First Nation and the Enoch Cree Nation as directed The Commission also heard evidence related to TAMA Power s consultation with the Gunn Métis, including the period of time before and after the Gunn Métis filed a statement of intent to participate in this proceeding. There was correspondence between the parties and two meetings were held. The Commission is satisfied that TAMA Power attempted to communicate the nature and details of the project and its potential impacts upon the Gunn Métis in its meeting and various communications with the group s representatives. It also acknowledges the Gunn Métis concern that consultation did not continue between the time that its members contacted senior management of TransAlta and the time the Gunn Métis was granted standing; and that neither TAMA Power nor the Gunn Métis made efforts to attempt to continue with consultation or contact each other during that time. In this regard, TAMA Power could have better communicated its contact procedures and expectations, and perhaps reduced the perception by the Gunn Métis that its request for a further follow-up meeting with TAMA Power representatives had been ignored. Nevertheless, the Commission finds that TAMA Power did make efforts to consider the specific concerns raised by the Gunn Métis and that the Gunn Métis had adequate consultation from TAMA Power The Commission has considered the Gunn Métis request that construction not be undertaken until the Gunn Métis and TAMA Power have jointly reported to the Commission that they believe that the participant involvement program requirements have been fulfilled. Because TAMA Power s consultation with the Gunn Métis was found to be satisfactory and to have met the requirements of Rule 007, the imposition of any further consultation requirements is unnecessary should the project be approved The Commission denies the Gunn Métis request for capacity funding because under Section 21 of the Alberta Utilities Commission Act, it may award costs as prescribed in its rules 46 Decision , page 57, paragraph 283. Decision 3183-D (June 9, 2015) 17

24 and no other funding. Rule 009: Rules on Local Intervener Costs stated that interveners may apply to the Commission for a costs award and includes provisions related to requests for advanced funding. Additionally, the Gunn Métis retained counsel and experts to assist it in making its representations before the Commission on the application Accordingly, the Commission concludes that TAMA Power s consultation and participant involvement program met the regulatory requirements of Rule 007 and was adequate in the circumstances. 7 Noise 107. Rule 012: Noise Control applies to noise from the construction and operation of electric and natural gas utility facilities. Rule 007 requires an applicant to provide a noise impact assessment (NIA) as part of a new power plant application. The purpose of Rule 012 is to ensure that the noise from a proposed facility, measured cumulatively with noise from other nearby energy-related facilities, will not exceed the permissible sound level TAMA Power filed two NIAs in support of the application. Golder Associates Ltd. (Golder) was retained to prepare the NIAs and provide evidence on the project s noise impacts The first NIA was dated and filed in April 2014 (the original NIA). A second NIA prepared in response to the concerns of the Cymbaluks family (the updated NIA), was dated and filed in April The updated NIA replaced the original one and was tested during the hearing. In both the original and updated NIAs, Golder predicted that the project would comply with the permissible sound levels of 50 dba Leq daytime and 40 dba Leq nighttime determined in accordance with Rule Victor Young, a professional engineer with expertise in noise acoustics and vibrations with Golder, conducted field measurements, performed noise emissions calculations, developed the computer noise model, and authored the updated NIA for the project. Mr. Young testified at the hearing regarding the noise reports, including the NIAs, prepared by Golder The Cymbaluks contested the validity of the NIAs on a number of grounds which included sound source identification, predicted sound level and compliance determination, noise control measures, TAMA Power s input parameters in the model and standards used, and applicable noise mitigation measures. The Cymbaluks retained James Farquharson of FDI Acoustics Inc. (FDI Acoustics) to provide evidence with respect to noise, including both NIAs submitted in support of the proposed power plant application. 7.1 Views of the applicant 112. In response to concerns from the Summer Village of Kapasiwin about increased noise, TAMA Power retained Golder to prepare a report on the project s potential noise impacts at that location The report indicated that the proposed power plant was unlikely to affect the noise levels for the Kapasiwin residents. Golder also explained that currently, the predicted noise levels in Kapasiwin are well below the permissible sound levels in Rule 012 and any marginal increase in the noise level from the project would not result in an exceedance of the permissible sound level. 18 Decision 3183-D (June 9, 2015)

25 114. At the hearing, Mr. Young testified: Our conclusion in the memorandum was that given the large distance between the Sundance 7 project and the Summer Village of Kapasiwin, approximately 7.5 kilometres, the project is unlikely to cause any perceptible changes in noise levels at the village With respect -- or with regards to low-frequency noise, which was one of the concerns raised by Kapasiwin, measurements previously conducted for the existing Keephills facility suggest that there is no particular reason to expect that there will be any lowfrequency noise issue associated with the Sundance 7 plant In response to questions from the Gunn Métis, Golder explained that Rule 012 does not contain any provisions regarding the impacts of noise on wildlife. Mr. Young explained that the Alberta Energy Regulator s Directive 038: Noise Control, which is very similar to Rule 012 and has the same sound level limits as Rule 012, states that the sound levels are designed to be protective of wildlife. 48 Mr. Young indicated that he has no specific experience assessing the impacts of noise on wildlife Original NIA 116. Golder stated that the original NIA was based upon the most up-to-date project design and engineering information available in April Two noise receptors were considered in the original NIA and were designated as R1 and R2. Receptor R1 was identified as an occupied farmhouse, or the Cymbaluk family s residence, located in the southeast quarter of Section 10, Township 52, Range 4, west of the Fifth Meridian and 1,160 metres from the center of the proposed power plant. Receptor R2 is a TransAlta-owned farmhouse located in the southeast quarter of Section 11, Township 52, Range 4, west of the Fifth Meridian and 1,420 metres from the centre of the proposed power plant The permissible sound levels were determined in accordance with Rule 012 for both noise receptors and were 50 dba L eq daytime and 40 dba L eq nighttime. In Rule 012, the daytime period is defined as the hours of 7 a.m. to 10 p.m. and the nighttime period is defined as the hours of 10 p.m. to 7 a.m The predicted cumulative sound level, including the assumed ambient sound levels, was compared to the permissible sound levels at receptors R1 and R2. The results were as follows: 50 Receptor Daytime baseline case (dba) Nighttime baseline case (dba) Daytime application case (dba) Nighttime application case (dba) R /40 R /40 Daytime / nighttime permissible sound level (dba Leq) 47 Transcript, Volume 1, page 43, lines Transcript, Volume 1 page 98, lines Transcript, Volume 1 page 97, lines Exhibit TAMAPOWE-3183, Noise Impact Assessment, TAMA Power Sundance 7 Approval Application, April 2014, pages Decision 3183-D (June 9, 2015) 19

26 7.1.2 Updated NIA 120. TAMA Power explained that the project design had advanced considerably since April 2014 when the original NIA was completed and that the updated NIA was submitted in response to intervener concerns 51 and was designed to replace the original NIA Golder explained that the updated NIA provided the most up-to-date design features of the proposed power plant. It stated that the project design and engineering information used in the updated NIA is near-final and represents the information that was current as of March 24, Project design and engineering information used in the updated NIA was provided by the major equipment supplier and by the potential engineering, procurement and construction contractors for the project. TAMA Power stated that the updated NIA considered two assessment cases: the baseline case and the application case for receptors R1 and R2 described above. The predicted results were as follows: 52 Receptor Daytime baseline case (dba) Nighttime baseline case (dba) Daytime application case (dba) Nighttime application case (dba) R1: /40 R2: /40 Daytime / nighttime permissible sound levels (dba Leq) 122. Golder stated that the noise emissions for the baseline case are similar to those used in the original NIA. At the hearing, Mr. Young explained that some of the sources were broken down further for the purposes of the updated NIA Updated NIA noise model and ground attenuation factor 123. TAMA Power used the computer noise model Predictor Version 9.11 software to predict the noise impact of the project. TAMA Power stated that the Predictor Version 9.11 software was developed in accordance with the ISO standard (the ISO 9613 standard) for the propagation of environmental noise and is one of two modelling standards referenced explicitly in Rule 012. Golder pointed out that the noise model referenced by the Cymbaluks expert was not referenced in the ISO 9613 standard TAMA Power also stated that the Predictor Version 9.11 software takes into account noise attenuation related to meteorological conditions, ground cover and physical barriers In response to the Cymbaluks expert s suggestion that a safety margin should be implemented, Golder stated that the use of an explicit safety margin in NIAs is neither required nor common. 54 Golder explained that this is due to NIAs incorporating several factors, making them inherently conservative Exhibit 3183-X0224, Appendix 8 Updated Noise Impact Assessment for the Sundance 7 Facility, prepared by Golder Associates for TAMA Power. Exhibit 3183-X0224, Appendix 8 Noise Impact Assessment Update, TAMA Power Sundance 7 Facility Approval Application, April 2015, page International Organization for Standardization, ISO , Acoustics - Attenuation of sound during propagation outdoors - Part 2: General method of calculation. Exhibit 3183-X0271, Opening Statement of Victor Young of Golder Associates. 20 Decision 3183-D (June 9, 2015)

27 126. The ground factors used in the Predictor Version 9.11 software included the following ground absorption factors: 55 G = 0.0 for water and paved surfaces G = 0.2 for compacted surfaces G = 0.5 for gravel-covered surfaces G = 0.8 for surrounding farm fields G = 1.0 for porous ground 127. Golder stated the Predictor Version 9.11 software accounts for attenuation due to geometrical divergence, atmospheric absorption, ground effect and screening by barriers, and in the case of ground effect, the updated NIA treated the ground of the surrounding farm fields around the project using a ground attenuation factor of G = 0.8, which is considered more reflective and less absorptive than the ground factor recommended by the ISO 9613 standard. Golder submitted that this modelling of the ground tends to enhance propagation between the project and receptors R1 and R2, and consequently overestimates the project s noise impacts. Other ground attenuation factors were used in the model for the appropriate ground type and included G = 0.0 for water and paved surfaces, G= 0.2 for compacted surfaces and G= 0.5 for gravel-covered surfaces In response to the Cymbaluks noise expert s suggestion of a 0.5 ground factor, Golder submitted that the ground factors used were sufficiently conservative and appropriate Noise wall 129. TAMA Power explained that its modelling was premised on the inclusion of a noise barrier or wall to reduce the proposed power plant s noise emissions on the Cymbaluk family and to achieve compliance with the permissible sound level. An L-shaped noise wall, designed to reduce the noise level at the Cymbaluk family s residence, would surround the south side and east end of the proposed power plant s cooling tower. Golder specified that the predictions in the NIAs were dependent upon the inclusion of the noise wall TAMA Power stated that the noise wall s dimensions had changed as a result of the project design which was updated since the submission of the original NIA. The noise wall s dimensions as stated in the original NIA were 13 metres tall with a south wall length of metres and an east wall length of 38 metres. 57 At the hearing, TAMA Power confirmed that the revised dimensions were 18.3 metres tall with a south wall length of 160 metres, and an east wall length of 53 metres Exhibit 3183-X0224, Appendix 8, Updated Noise Impact Assessment for the Sundance 7 Facility, PDF page 21. Exhibit 3183-X0271, Opening Statement of Victor Young of Golder Associates. Transcript, Volume 1, page 197, lines Transcript, Volume 2, pages , lines 20-25, 1-4. Decision 3183-D (June 9, 2015) 21

28 7.1.5 Sound source identification 131. TAMA Power stated that the major sources of noise emanating from the proposed power plant include: the heat recovery steam generators exhaust stacks the gas turbine air inlets the noise breakout through the walls and roofs of the gas turbine building the heat recovery steam generator building the steam turbine building the fuel gas compressor building the noise breakout through building ventilation louvers the building ventilation and exhaust fans the cooling tower air inlets (including noise from falling water) the cooling tower air outlets the fuel gas compressor cooler units the power transformers the auxiliary transformers 132. The two gas turbine generators, two heat recovery steam generator units, one steam generator and three fuel gas compressors are to be located inside buildings fitted with ventilation louvers which will reduce noise emissions to the surrounding environment. The gas turbine air inlets and the heat recovery steam generators exhausts will be fitted with silencers The proposed cross flow cooling tower would consist of 12 cells that would be installed with fans that can operate in two modes The updated NIA stated that the noise rating of the three power transformers are substantially lower than the default noise emissions specified by the relevant National Electrical Manufacturers Association technical standard TAMA Power stated that because the project is near its final design, it does not have sound power levels for all project components. However, Golder added that there was enough information available to complete noise modelling because TAMA Power had received a noise level guarantee for the sound contribution level of the proposed power plant TAMA Power stated that it is in negotiations to finalize the contract with an engineering, procurement and construction contractor for construction of the project. There are two candidates and both have agreed to provide a guarantee on the proposed power plant s noise emissions. This noise level guarantee is designed so that the cumulative sound level at R1 and R2 would achieve compliance with the permissible sound levels At the hearing, Mr. Young explained that some of the project s components have yet to be finalized, and that sound power levels for these components (individual noise sources) were derived using a back-calculation method from the overall noise guarantee provided for the proposed power plant. In other words, Golder was able to derive sound power levels for some power plant components from the overall noise guarantee. Mr. Young explained that these derived individual sound power levels were used as inputs into its noise model when it prepared the updated NIA. Mr. Young further testified that while this approach is uncommon, it is similar 22 Decision 3183-D (June 9, 2015)

29 to other methods for deriving sound power levels from sound pressure levels, which is a common industry practice TAMA Power also provided the breakdown of the sound power levels for the above project components in response to an information request. At the hearing, it acknowledged that some of its answers had changed as a result of design changes and provided an updated information response. TAMA Power reiterated that the total sound contribution level of the proposed power plant had not changed because of the design changes TAMA Power stated that the updated NIA made use of a number of conservative assumptions that tend to overestimate the noise impact of the project, which provides an inherent safety margin when comparing cumulative noise level predictions to actual sound level measurements. Those conservative assumptions include the project cooling towers and the electrical transformers operating in the loudest mode at all times, even though the cooling towers can operate at a low speed and the electrical transformers can operate in a number of different cooling modes when ambient temperatures are low and cooling is not required Existing energy-related facilities 140. Both NIAs contained an assessment of the sound levels of existing energy-related facilities in the project area. TAMA Power explained that TransAlta owns and/or operates a number of existing facilities in the area and that these were included in the model when predicting the cumulative sound level for the project. Third party energy-related facilities in the project area belong to Zargon Oil and Gas Ltd., New Star Energy Ltd., and ATCO Gas and Pipelines Ltd The baseline case as modelled by Golder considered the noise contributions of existing and approved energy-related facilities. These facilities typically fell into two categories: (1) facilities own by TransAlta; and (2) facilities own by third parties The facilities owned by TransAlta included power generating facilities such as the Sundance Generating Facility, the Keephills Generating Facility and the Highvale Coal Mine. To determine the sound level contributions of each of the TransAlta facility operations, Golder used the NIA for these facilities and supplemented this information with actual noise measurements. In situations where information was missing, Golder identified the existing equipment and estimated the noise emissions based on its professional experience using a combination of vendor data for similar equipment and empirical formulae from the acoustics literature Golder submitted that it considered the data provided with respect to each of the TransAlta owned facilities up-to-date and applicable for the purposes of the NIAs In addition, six third-party industrial developments operating within approximately 2.5 kilometres of the two noise receptors were identified and included in the updated NIA to more fully characterize the cumulative noise environment Exhibit 3183-X0224, Appendix 8 Updated Noise Impact Assessment for the Sundance 7 Facility, prepared by Golder Associates for TAMA Power. Decision 3183-D (June 9, 2015) 23

30 7.1.7 Low frequency noise 145. Golder modelled the potential for low frequency noise in both the updated and the original NIAs. Rule 012 defines the low frequency noise range to be from 20 hertz (Hz) to 250 Hz. Golder calculated the dbc sound pressure value minus the dba sound pressure value to identify the potential for a low frequency noise condition. Golder added that this was completed for both existing energy-related facilities and the proposed power plant and explained that, in accordance with Rule 012, a low frequency noise condition may exist when the dbc minus dba value is equal to or greater than 20 db and a clear tonal component exists between the frequencies 20 and 250 Hz The results of the application case, which included the addition of the Sundance 7 noise contributions, showed that the difference between the dbc and dba values was greater than 20 db at receptor location R1 during both the daytime and nighttime periods. This indicated the potential for low frequency noise Golder indicated that once the project commences operations, conducting near-field source measurements at the project and a noise monitoring program could be conducted at the potentially impacted receptor to identify the presence or absence of a low frequency noise issue In the event that a low frequency noise condition was definitively identified, the nature of the mitigation measures implemented would depend on the specific sources responsible for the low frequency noise Post-construction sound level monitoring 149. TAMA Power committed to completing a comprehensive sound level monitoring survey, in accordance with Rule 012, at the residence of David, Philip and Ferne Cymbaluk once the project is operational. Should the results of the comprehensive sound level monitoring indicate non-compliance, TAMA Power would investigate the noise issue and resolve it TAMA Power testified at the hearing that it is aware that it must meet the permissible sound level at R1, the Cymbaluk family s residence, at all times. 7.2 Views of the Cymbaluks 151. The Cymbaluks were concerned that further development in the area would have the potential for high frequency and low frequency noise. The Cymbaluk family stated it finds the existing noise impacts to be unacceptable and non-compliant with noise directives and has had to lodge noise complaints with industrial operators in the area, including TransAlta. The Cymbaluk family expressed concerns with TransAlta s noise complaint and investigation process, including the adequacy and thoroughness of the noise complaint investigation procedures. 60 AUC Rule 012 defines the low frequency noise range to be from 20 Hz to 250 Hz. If a project s dbc sound pressure value is available, the Commission requires the applicant to calculate the dbc sound pressure value minus the dba sound pressure value to identify the potential for a low frequency noise condition. In accordance with AUC Rule 012, a low frequency noise condition may exist when the dbc minus dba value is equal to or greater than 20 db and a clear tonal component exists between the frequencies 20 to 250 Hz. 24 Decision 3183-D (June 9, 2015)

31 7.2.1 Original NIA 152. As stated earlier, the Cymbaluks retained FDI Acoustics to review the original and the updated NIAs as well as other noise-related information relating to the project. FDI Acoustics took issue with the original NIA prepared by Golder in its report. The specific concerns primarily related to modelling, ground factor, and the modelling of other energy-related facilities, which are discussed below Updated NIA 153. The Cymbaluks also took issue with the updated NIA and requested that complete and updated answers to the information they requested be provided FDI Acoustics recommended a safety margin for the predicted sound levels, a recompletion of the NIA using a less optimistic ground absorption value, and a post-commissioning comprehensive sound survey and near-field measurement assessment should the project be approved Mr. Farquharson testified that if TAMA Power wanted to spend enough money to build Sundance 7 quietly there would be a method to do that. 61 However, the Cymbaluks questioned whether TAMA Power was willing to build Sundance 7 quiet enough to be compliant with Rule Updated NIA noise model and ground attenuation factor 156. FDI Acoustics critiqued the noise model used by Golder. FDI Acoustics advocated the use of the Environmental Noise Model (ENM) noise model which was developed by RTA Technology Pty Ltd in 1986 and predicts noise levels from known noise sources at receptor locations. FDI Acoustics formulated a modelling exercise to provide a comparison of how ground attenuation is treated between the ISO 9613 standard using the Predictor Version 9.11 noise model and the ENM noise model under similar modelling parameters FDI Acoustics explained that several project-specific factors contribute to whether a noise model is conservative including the ground factor, the height of the sound source, and the sound spectrum In the ENM noise model there are eleven available ground types from which to select varying categories from a Type 1 for dry snow to a Type 11 for asphalt or water. Grass is categorized as being Type 4, which is comparatively more conservative than how grass is categorized in the ISO 9613 standard Also, given the height of the proposed power plant and the mid-frequency of the sound emitted, the ENM noise model is more conservative compared to the ISO 9613 standard At the hearing, Mr. Farquharson gave evidence with respect to the limitation of the ISO 9613 standard specifically in terms of wind and thermal inversion. He state that it lumped wind, thermal inversion and multiple speeds of wind together so one could not specifically select Transcript, Volume 6, page 1068, lines Transcript, Volume 7, page 1327, lines Decision 3183-D (June 9, 2015) 25

32 values. In contrast, the ENM noise model allows specific inputs for wind and temperature and is more flexible in this area than the ISO model Based on its critique of the noise model, FDI Acoustics also questioned the ground factor used in the noise modelling, stating that the ground factor used by Golder was not the most conservative FDI Acoustics stated that it considers the use of a 0.5 ground absorption value for the vegetated lands of the model a more conservative approach, adding that the use of the 0.5 value is based on experience and recommending that an NIA should reflect a possible complaint margin Noise wall 163. The Cymbaluk family questioned whether the sound barrier wall proposed for the project would provide effective noise mitigation at the David, Philip and Ferne Cymbaluk residence. The family members argued that under certain weather conditions, the shadow zone of noise barrier may not be in effect at their residence. 64 The Cymbaluk family was also concerned that the dimensions of the noise wall had changed Sound source identification 164. FDI Acoustics had several concerns with the project after reviewing the original NIA. The project is based on an on-going project design. Although the proposed sound barrier wall for the south and east sides of the cooling tower had changed in comparison to an earlier design, the results had not been updated At the hearing, the Cymbaluks also criticized Golder for not having a final design of the cooling tower at a prior stage of the project FDI Acoustics stated that it was not an expert in cooling tower design, but pointed out that cooling tower suppliers are very reluctant to endorse the placement of any large structures near the inlets of a cooling tower because it will completely block the natural airflow path into the cooling tower on the south side. FDI Acoustics questioned whether TAMA Power secured acceptance of the proposed barrier by the cooling tower supplier TAMA Power did not consider or provide a safety margin in respect of the predicted results at both receptors. FDI Acoustics noted that the predicted sound level was at 40 dba L eq nighttime at receptor R1 under the original NIA and 39 dba L eq in the updated NIA. More specifically, FDI Acoustics suggested that because the project design may be preliminary, it would be prudent to consider a design safety margin. A safety margin can be imposed as an overall project contribution target or the safety margin can be placed on individual items based on noise data quality, equipment sound emission ranges, historical predicted versus actual, noise control measure performance levels and experience Transcript, Volume 7, pages , lines 13-25, 1-4. Transcript, Volume 7, page 1311, lines Decision 3183-D (June 9, 2015)

33 7.2.6 Existing energy-related facilities 168. FDI Acoustics also suggested a safety margin because there were many noise sources in the area. Mr. Farquharson testified that.we have an environment where we have a large amount of the [noise] room that is available to AUC and Alberta Energy Regulator s regulated sources filled already. 65 These sources include power plants such as Keephills units 1 to 3 and Sundance units 1 to The Cymbaluks took issue with Golder s modelling of the existing energy-related facilities in the area The Cymbaluks submitted that when considering whether the application is in the public interest, the Commission should take note that the noise modelling in the original NIA did not include all emissions sources and noise associated with the reclamation of other facilities in the area. The NIA for the Keephills Coal Preparation Plant, 66 which was used in the original NIA to determine background levels, did not include contributions of noise from Keephills units 1 and They requested that the project not be approved, or in the alternative, that the Commission defer consideration of the TAMA Power application until TransAlta resolves the current noise complaints with respect to TransAlta s existing extensive operations in the area Summer Village of Kapasiwin 171. The Summer Village of Kapasiwin expressed concern with the addition of another noise source in the area and that the project, if approved, could potentially contribute to unacceptable levels of noise in the area. 68 It submitted that the stack height of the proposed power plant is approximately 166 feet above ground level elevation 69 and that there is no potential for attenuation of the sound emitted from the proposed power plant toward the Summer Village of Kapasiwin The Summer Village of Kapasiwin wanted to ensure that proper sound attenuation equipment is included in the design of the project 71 and also expressed concern with the potential for low frequency noise as a result of the operation of the proposed power plant. It requested independent sound monitoring upon completion of the proposed power plant and annually afterwards Views of the Gunn Métis 173. The Gunn Métis expressed concern about noise from construction and operation of the proposed power plant. The Gunn Métis is concerned that noise in the area would impact animals and cause wildlife to avoid the area, and that it could impact hunting Transcript, Volume 6, page 1051, lines 1-3. Exhibit 3183-X0020, TransAlta Generation Partnership Sundance Coal Preparation Plant, Sundance Power Generation Station and Highvale Mine Pits 02, 03, 05 and 06. Transcript, Volume 3, pages , lines 19-25, Transcript, Volume 6, page 1003, lines Transcript, Volume 6, page 1003, lines Transcript, Volume 6, page 1001, lines Transcript, Volume 6, page 1004, lines Transcript, Volume 6, page 1007, lines Decision 3183-D (June 9, 2015) 27

34 7.4 Commission findings 174. Rule 012 requires the use of computer models that meet accepted protocols and international standards for predicting a project s cumulative sound level and identifies the ISO 9613 standard as one such international standard. The Commission finds that the noise model used for the project followed the ISO 9613 standard and complies with the requirements of Rule The Commission acknowledges the view of FDI Acoustics that the ground attenuation input would result in a more conservative (higher) predicted sound level. However, the Commission finds that the ground attenuation factor used by Golder in the updated NIA follows the guidance described in the ISO 9613 standard and is acceptable for use in this project The Commission understands that for sound power levels of individual project components, some of the values used in preparing the updated NIA were obtained via a back-calculation from the noise level guarantee. The Commission has considered the overall approach used by Golder in modelling the sound level contributions from the proposed power plant and finds Golder s approach to be reasonable given the stage of the proposed power plant design One of the primary issues raised by the interveners was that the modelling did not adequately predict the noise levels of the existing energy-related facilities in the area. The Commission understands that the operations of the existing TransAlta facilities and third party facilities may impact the cumulative sound level at receptors R1 and R2 and that Golder used the predicted noise contributions from third party NIAs in preparing both the original and updated NIAs. The Commission has reviewed the submissions and the third party NIAs that were incorporated into the updated NIA and finds the use of these data values to be acceptable While all noise models have a level of uncertainty, Rule 012 does not require an applicant to take this into account in an NIA when determining whether a project meets the permissible sound level. TAMA Power s compliance with the permissible sound level is of paramount importance at all receptors, including the Cymbaluk family s residence. Even if the modelling proves to be inaccurate, the project must be constructed and operated such that it will comply with the permissible sound level. Compliance can be determined by a post-construction comprehensive sound level survey. As such, should the Commission approve the project, approval would be subject to the following condition: TAMA Power shall conduct a comprehensive sound level survey at receptor R1, the Cymbaluk family's residence, within one year of Sundance 7 s operation and file the results with the Commission Having regard to the foregoing, the Commission finds that the applicant incorporated reasonable modelling assumptions and protocols when preparing the updated NIA and upward or downward adjustments to the predicted sound levels are not required because of the modelling and standards used. The Commission concludes that the results of the updated NIA were consistent with the requirements of Rule The Cymbaluk family s outstanding noise complaints are the subject of a separate proceeding before the Commission, consequently it is unnecessary to make any finding on this issue in this proceeding. 28 Decision 3183-D (June 9, 2015)

35 181. The Commission has also reviewed the material presented for the project s potential to increase the cumulative sound level in the Summer Village of Kapasiwin. FDI Acoustics did not contest the results obtained by Golder. The Commission therefore accepts Golder s predictions that the proposed power plant will not cause an exceedance of the permissible sound level at that location The issue of noise impacts to wildlife was also raised by the Gunn Métis. However, Rule 012 applies only to residences, not to wildlife and there is insufficient evidence before the Commission to determine whether the project s predicted sound emissions would affect wildlife in the area. The Commission finds that the Gunn Métis concerns were unsubstantiated but nonetheless accepts Golder s submission that the Alberta Energy Regulator s Directive 038: Noise Control indicates that the permissible sound levels would be protective of animals. 8 Vegetation and wildlife 8.1 Views of the applicant 183. TAMA Power retained Golder to prepare an environmental report, conduct fieldwork and give evidence on the project s potential impact on vegetation and wildlife TAMA Power explained that the project is proposed to be on private land which has been owned by TransAlta for many years. 73 The project site has historically been used primarily (80 per cent) for agricultural operations and only contains remnant native woodlots, shrubs and wetlands. On this basis, Golder indicated that a large impact on vegetation and wildlife was not expected Golder conducted baseline environmental studies in support of TAMA Power s application to the Commission and ESRD. These studies contained two components, desktop and field work, designed to identify the presence of rare plants on the project site and the surrounding area. TAMA Power stated that the field work was conducted in 2010 and TAMA Power noted that the scope of the environmental assessment required for the project is established by provincial and federal regulators on a project-specific basis, commensurate with the anticipated environmental effects of the project. Generally, natural gas-fired combined-cycle power plants such as Sundance 7 are regarded as having relatively low environmental impacts when compared to other types of energy projects TAMA Power submitted a project summary to ESRD at the provincial level. It was advised by ESRD in March 2014 that an environmental impact assessment report under the Environmental Protection and Enhancement Act was not required for Sundance TAMA Power submitted a project description to the Canadian Environmental Assessment Agency and was advised in August 2014, 76 that the environmental effects of Transcript, Volume 1, page 36, lines 2-9. Transcript, Volume 1, page 87, lines Exhibit 3183-X0216, Rebuttal evidence of, PDF pages 8-9. Exhibit 3183-X0220, Appendix 4 Letter dated August 22, 2014 from Canadian Environmental Assessment Agency to TransAlta Corp. Decision 3183-D (June 9, 2015) 29

36 the project were well understood, that the project was not likely to cause adverse environmental effects and that an environmental assessment was not required under the Canadian Environmental Assessment Act, Golder conducted a search of the Alberta Conservation Information Management System, which revealed no provincially listed plant species or communities on, or within one kilometre of, the project site. The absence of rare plants was confirmed during a rare plant survey conducted on the site in and TAMA Power submitted that the impact on vegetation from Sundance 7 would be very minor In addressing the Gunn Métis concern about the existence of ethnobotanically important species, Golder indicated that gooseberries, Saskatoon berries, birch, fragaria, strawberries, raspberries, rose and poplar were identified on the project site: Golder stated that no sweetgrass was identified on the project site during the course of its field work TAMA Power further stated that given the paucity of wildlife habitat on the project site, the design of the project, and the implementation of mitigation measures described in the application, the effects of the project on wildlife, including migratory birds and wildlife habitat were expected to be negligible In response to the Gunn Métis concern relating to fragmentation, Golder submitted that based on its experience it did not expect that the proposed power plant would affect, plants outside of the project site Views of the Gunn Métis 194. Karen Kubiski submitted a written report on the ethnobotanical effects of Sundance 7 on behalf of Gunn Métis. Ms. Kubiski undertook a review of the research on the effects of fragmentation and habitat loss, which suggested the use of no greater than a 20 per cent loss of native plant communities as an acceptable level of human disturbance. She submitted that higher rates of loss of plant communities lead to many other ecological changes across the landscape. 84 She added that in order to conserve or sustain a species of value, it would be most important to reduce the loss of plant communities to less than 20 per cent and to ensure restoration of plant community disturbance Ms. Kubiski submitted that sweetgrass is a sensitive species, exhibiting low reproduction and distribution rates, that does not grow in disturbed areas. If habitat is lost where Sundance 7 is built, the additional fragmentation could have cascading effects upon the Exhibit 3183-X0216, Rebuttal evidence of, PDF page 9. Transcript, Volume 7, page 1146, lines Transcript, Volume 7, page 1147, lines Transcript, Volume 1, page 83, lines Transcript, Volume 1, page 87, line 11. Exhibit 3183-X0019, Canadian Environmental Assessment Agency Project Description, PDF page 48. Transcript, Volume 3, page 635, lines Transcript, Volume 7, pages , lines 18-25, 1-2; Exhibit 3183-X0107, TAMA Power s Sundance 7 Project Ethnobotanical Effects, pages Decision 3183-D (June 9, 2015)

37 sweetgrass species as a whole in the watershed by making it more difficult for the remaining patches of sweetgrass to reproduce and colonize Ms. Kubiski asserted that the availability of ethnobotanical species on the project site or in the watershed was not considered by Golder in its vegetation work Ms. Kubiski also criticized the vegetation work conducted by Golder, stating specifically that Golder s survey for noxious weeds failed to identify tansy, which is easily identifiable on the project site even in wintertime conditions Ms. Kubiski opined that the Lake Wabamun watershed cannot likely take further unmitigated disturbance and continue to meet the ethnobotanical harvesting needs of the Gunn Métis. For example, the emission of polycyclic aromatic hydrocarbons and nitrous oxide (NO x ) as well as removal of plant communities produce long-term and short-term effects on vegetation surrounding the project The NO x emitted by the project could cause serious damage or death to plants if it is emitted in gaseous form or if it contributes to acid rain. Her report further outlined concerns that in constructing the project, wetlands, which are valued and used by the Gunn Métis, and remnant native woodlots, which support many ethnobotanical species, 88 would have to be removed from the general area Ms. Kubiski described how, in addition to considering species at risk, endangered or tracked, an effective ecosystem management must consider conserving a diversity of intact native plant community types at the landscape level The Gunn Métis requested that the construction and operation of Sundance 7 be approved with the condition that a special-use vegetation survey of the Lake Wabamun watershed be undertaken and the results and recommendations of that study be supplied to the Commission six months prior to construction of the project. 90 It also requested the following additional conditions if the power plant were to be approved: That a monitoring program of populations of sweetgrass and possibly other threatened ethnobotanical species within the Wabamun Lake Watershed be put in place, where an ecologist of the Gunn Métis's choosing could train its members to engage in that monitoring and apply their traditional knowledge; A native plant nursery be considered to grow plants used for medicines, food, and other purposes that will be planted outside on areas disturbed by TransAlta Edward Adams testified at the hearing that the area immediately around Lake Wabamun was some of the Paul First Nation s favourite hunting grounds and where members of the Paul First Nation gather food, berries and medicines. He expressed concerns about pollution Transcript, Volume 7, page 1216, lines Transcript, Volume 4, page 804, lines Exhibit 3183-X0107, Section 5.2 Emissions Effects on Ethnobotanical Species, PDF page 29. Exhibit 3183-X0107, Section 5.2 Emissions Effects on Ethnobotanical Species, PDF page 28. Exhibit 3183-X0107, Section 5.2 Emissions Effects on Ethnobotanical Species, starting on PDF page 31. Transcript, Volume 7, page 1257, lines Transcript, Volume 7, pages , lines 5-25, 1-6. Decision 3183-D (June 9, 2015) 31

38 from the project impacting fish, small fur-bearing animals, and medicinal plants along Lake Wabamun Lloyd Saulteaux testified that his family lives near Lake Wabamun and that the area around the lake had been their hunting and trapping grounds. Mr. Saulteaux further stated that his main concern regarding the project was that it may affect the way in which the members of the Paul First Nation live off the land Commission findings 204. TAMA Power s evidence indicated that the project is located on land that is used primarily for agriculture and that is interspersed with remnant native woodlots, shrubs and wetlands. David Cymbaluk testified that when he leased the project site, he farmed over some of the smaller wetlands present on the site. 94 Golder s rare plant surveys conducted in 2010 and 2014 identified certain plants such as raspberries and strawberries, but did not identify any sweetgrass Furthermore, the results of Golder s environmental baseline reports indicated that the potential environmental impacts were of a limited nature. This view was supported by the opinion of ESRD and the Canadian Environmental Assessment Agency when both agencies found that no additional environmental impact assessments were needed for the proposed power plant The Commission finds that the nature and extent of the environmental reports and the field work conducted by TAMA Power were adequate in the circumstances. Due to the primarily agricultural use of the project site, the Commission is not persuaded that a study of ethnobotanical plants on the project site is required because the evidence before it is that adverse effects to vegetation will be limited Ms. Kubiski s concern with the fragmentation of ethnobotanical species was general in nature, given the footprint and the current use of the project site. In this regard, the Commission accepts Golder s evidence that the construction and operation of the proposed power plant will not impact plants and vegetation outside of the project site. Furthermore, the evidence of the presence of ethnologically important species on the project site that would be disturbed as a result of construction or the siting of the project s permanent facilities was limited to species that were available in the area. The Commission therefore finds that there is insufficient evidence before it to conclude that the Gunn Métis members ability to harvest traditional plants is likely to be impacted by fragmentation resulting from the project or by the construction and operation of the proposed power plant The Commission finds that, based on the surveys conducted and TAMA Power s commitment to conduct further wildlife surveys prior construction, the project will have a minimal impact on wildlife and wildlife habitat Transcript, Volume 5, pages Transcript, Volume 5, pages Transcript, Volume 4, pages , lines 20-25, 1. Transcript, Volume 1, page 87, lines Decision 3183-D (June 9, 2015)

39 209. In light of the findings above, the additional environmental studies and field work requested by the Gunn Métis are not necessary should the project be approved. 9 Waterbodies 9.1 Views of the applicant 210. Sundance 7 will use water from the existing Sundance industrial cooling pond and will neither draw from nor discharge into Lake Wabamun. TAMA Power stated that water for the Sundance industrial cooling pond will continue to be withdrawn from and returned to the North Saskatchewan River under an existing Environmental Protection and Enhancement Act approval which was granted by ESRD According to the applicant s evidence, Sundance 7 is designed so it will not change the temperature of the water returning to the Sundance industrial cooling pond and therefore there will be no change in the temperature of the water that will be returned to the North Saskatchewan River While there could be small changes in water quality in the North Saskatchewan River during low-flow events due to the additional water diversion for Sundance 7, there would be no changes in water quality exceedances compared to baseline or current conditions. TAMA Power submitted that the overall effect of Sundance 7 on water quality in the North Saskatchewan River is expected to be minimal and that the testimony on the historical impacts of the Wabamun coal-fired power plant to water quality in Lake Wabamun was not relevant to Sundance A wetland impact assessment conducted by Golder showed that the project would potentially impact 12 Class 1 ephemeral wetlands totalling 0.79 hectares. TAMA Power reported that these wetlands do not require any compensation under Alberta s wetlands policy. 99 The project would impact one Class 2 temporary wetland totalling 0.11 hectares and one Class 3 wetland totalling 0.29 hectares, for which it would be providing compensation of 0.4 hectares of Class 2 and Class 3 wetlands pursuant to Alberta s wetlands policy. The wetland compensation would be at a 3 to 1 ratio, and executed by Ducks Unlimited. 100 During the hearing, TAMA Power indicated that, while Ducks Unlimited cannot guarantee that it would adopt the recommendations of the Gunn Métis on wetland compensation, it is willing to meet with the Gunn Métis to discuss their recommendations. TAMA Power is committed to meeting with Ducks Unlimited and the Gunn Métis to facilitate those discussions Views of the Cymbaluks 214. The Cymbaluk family stated that groundwater withdrawal by TAMA Power may adversely affect the family s water supply and that the location of proposed water wells and the volume of groundwater to be withdrawn by Sundance 7 have not been identified. The Cymbaluk Transcript, Volume 7, page 1144, lines Transcript, Volume 7, pages , lines 24-25, 1-8. Transcript, Volume 7, page 1145, lines Exhibit 3183-X0017, Wetland Impact Assessment Report. Transcript, Volume 7, pages , lines 23-25, 1-5. Transcript, Volume 7, page 1147, lines Decision 3183-D (June 9, 2015) 33

40 family also stated that it had had concerns about the lack of clarity with what the applicant was planning to do and that no parties knew if potable water could be obtained from the aquifers The Summer Village of Kapasiwin also expressed concern about the proposed power plant s impacts on Lake Wabamun. 9.3 Views of the Gunn Métis 216. The Gunn Métis submitted that although Dr. Robinson, on behalf of Golder, indicated that the temperature of water from the Sundance industrial cooling pond into the North Saskatchewan River will not change, TAMA Power did not address the impacts of increased volume of warm water going into an already compromised river, where the fish is at significant risk. The Gunn Métis further submitted that TAMA Power has not dealt with this impact in the context of a lower overall flow and the increased volume taken out of the North Saskatchewan River to support Sundance The Gunn Métis added that there had been no analysis of what the increased withdrawal and warm processed water flowing back into the North Saskatchewan River will mean for the health of the river and the ability of the Gunn Métis to exercise its harvesting and other traditional activities. The Gunn Métis indicated that TAMA Power did not engage in any analysis of the current level of impact to the North Saskatchewan River, what is needed to maintain an ecological base flow or in-stream flow needs, and the requirements to maintain the subsistence needs of the Gunn Métis community In regard to wetland compensation, the Gunn Métis stated that it must be meaningfully engaged in the development of the wetland compensation offset. The Gunn Métis requested, among other things, that the following elements be incorporated into a wetlands compensation program: wetland protection in an area convenient for the Lac Ste. Anne Métis harvesters; and if there is development of replacement wetlands, the project be overseen by the Gunn Métis, incorporate ethnobotanical species and include guidance from an ecologist of its choosing It also requested a monitoring program to measure the health of the North Saskatchewan River. The Gunn Métis is concerned with the current condition of Lake Wabamun and requested that the Commission order TAMA Power to work with the Gunn Métis, prior to operation of the plant, to undertake a study of what measures are required to restore Lake Wabamun to a healthy state Views of the Paul First Nation 220. At the hearing, Geordy Saulteaux explained that members of the Paul First Nation had used Lake Wabamun for fishing. He added that the lake drains through the middle of the reserve and into the North Saskatchewan River. He is concerned about the effects of the Wabamun Transcript, Volume 4, pages , lines 22-25, 1-8. Transcript, Volume 7, page 1235, lines Transcript, Volume 7, page 1236, lines 3-9. Transcript, Volume 7, page 1260, lines Decision 3183-D (June 9, 2015)

41 power plant, stating that the water has become polluted and that they are no longer able to drink or cook with the water, or eat the fish Lloyd Saulteaux asserted that since the Wabamun power plant had been constructed, it had negatively impacted the fish as a result of warm water being put back into Lake Wabamun, and that the lake was polluted. 9.5 Commission findings 222. The Commission accepts TAMA Power s submission that water withdrawals for the project would be from the existing Sundance industrial cooling pond, and be within the current Environmental Protection and Enhancement Act approval limits to divert and return water With respect to the Gunn Métis suggestion that TAMA Power did not adequately evaluate the effects of withdrawal and return of water to the North Saskatchewan River, the Commission has taken into consideration that the withdrawals are within the limits imposed under the current Environmental Protection and Enhancement Act approval and that ESRD oversees the potential environmental effects associated with its approvals. The Commission also heard evidence that members of the Gunn Métis continue to fish in the river and was not offered any persuasive evidence that the fish may be affected by the incremental difference in the water withdrawn or returned to the North Saskatchewan River. The Commission is therefore satisfied that any adverse effects to the North Saskatchewan River would be minimal The Commission accepts TAMA Power s assertion that the water withdrawal and waste water return would not affect water quality or fish in the North Saskatchewan River. As such, the Commission finds any further requirement to monitor the North Saskatchewan River unnecessary should it approve the project The Gunn Métis also requested that the Commission order TAMA Power to undertake a study to identify measures required to restore Lake Wabamun. The Commission denies this request because no water will be taken or returned to Lake Wabamun for purposes of the proposed power plant. Based on the evidence submitted, the Commission finds that the proposed power plant will not have measureable impacts on Lake Wabamun The Cymbaluk family also took issue with the lack of clarity on groundwater withdrawal by TAMA Power for potable water. In this regard, the Commission understands that TAMA Power would have to obtain an Environmental Protection and Enhancement Act approval to drill and operate a groundwater well. Further, TAMA Power would only use the wells for potable water and all service water would be withdrawn from the Sundance industrial cooling pond Based on the above, the Commission is therefore satisfied that the proposed power plant would have minimal impacts on the North Saskatchewan River and groundwater The Commission considers that the project would have minimal impact on wetlands. David Cymbaluk testified that he farmed over some of the smaller wetlands and TAMA Power s evidence is that the project would impact one Class 2 and one Class 3 wetland totalling 0.29 hectares. The Commission finds that the effects to wetlands can be effectively mitigated with the implementation of the proposed wetland compensation. TAMA Power has also committed to facilitating a meeting between Ducks Unlimited and the Gunn Métis to discuss Decision 3183-D (June 9, 2015) 35

42 and, where possible, implement the Gunn Métis recommendations regarding wetland compensation. Because the Commission has found that the effects on wetlands can be effectively mitigated, no further requirements are necessary to protect wetlands as suggested by the Gunn Métis. 10 Air emissions 229. TAMA Power retained Golder to provide evidence on air quality and filed an air quality assessment The Gunn Métis retained the Pembina Institute to evaluate the air quality assessment conducted by Golder and submitted a report 107 on the cumulative air quality impacts of Sundance 7. At the hearing, Andrew Read, one of the authors of the report, gave testimony on behalf of the Gunn Métis In its rebuttal evidence to the Pembina Institute air quality report, TAMA Power submitted a report written by Golder. 108 Chris Madland and Dr. James Wilkinson, both of Golder, testified at the hearing Government objectives standards on air quality 232. Alberta Environment and Sustainable Resource Development sets the Alberta Ambient Air Quality Objectives which are used to evaluate the quality of the atmospheric environment, evaluate development proposals and to assess compliance near major industrial air emission sources. The Alberta Ambient Air Quality Objectives state the following objectives with respect to ambient air quality concentrations: Alberta Ambient Air Quality Objectives Parameter Concentration (µg/m 3 ) Carbon monoxide (CO) 1 hour average 15,000 CO 8 hour average 6000 Nitrogen Dioxide (NO2) 1 hour average 300 NO2 Annual average 45 PM hour average 30 Sulphur Dioxide (SO2) 1 hour average 450 SO2 24 hours average 125 SO2 30 day average 30 SO2 annual average The Alberta Ambient Air Quality Objectives 109 have adopted the Canadian Ambient Air Quality Standards (which will be discussed below) for fine particulate matter (fine particulate matter or PM 2.5 ) of 30 micrograms per cubic metre (g/m 3 ) Exhibit 3183-X0012, Industrial Approval Application, Appendix A: Air Quality Assessment, TAMA Power Sundance 7 Approval Application, April 2014, PDF page 149. Exhibit 3183-X0110, Proposed Sundance 7 and Capital Region Air Quality Cumulative Impacts, February Exhibit 3183-X0228, Appendix 12 Response of Golder to Pembina Institute Report, April 2, Source: Alberta Ambient Air Quality Objectives and Guidelines Summary. Alberta Government. August Decision 3183-D (June 9, 2015)

43 234. The Canadian Council of Ministers of the Environment has revised the Canadian Ambient Air Quality Standards since Alberta adopted the standard specified above. The current Canadian Ambient Air Quality Standards for fine particulate matter are as follows: Canadian Ambient Air Quality Standards 110 Pollutant Standards (concentration µg/m 3 ) PM hour average PM2.5 annual average Alberta Environment and Sustainable Resource Development, industry and other stakeholders have also created an air emission management framework. The Alberta Air Emission Standards for Electricity Generation, developed in accordance with that framework, establishes facility-specific air emission limits which restricts the mass of NO x emissions permitted in relation to the electricity generated. Alberta Air Emission Standards for Electricity Generation New natural gas generating units 111 Electrical Generating Power Capacity of the Plant Zero to 20 MW Greater than 20 MW to 60 MW Greater than 60 MW Limit 0.6 kg/mwhoutput for each new generating unit 0.4 kg/mwhoutput for each new generating unit 0.3 kg/mwhoutput for each new generating unit 10.2 Views of the applicant 236. According to TAMA Power, Sundance 7 is a natural gas-fired power plant with low emissions that would result in improved air quality because it is intended to replace the coal-fired generating power plants currently operating in the area. The project includes a selective catalytic reduction system designed to reduce emissions that is required by ESRD Golder completed a comparison of the existing or baseline emissions, project-only emissions, and the application case, which included the predicted emissions from Sundance 7 in addition to the baseline emissions. The air quality assessment considered the effect of the project s emissions under routine and non-routine operating scenarios in combination with the emissions from existing and approved regional sources When completing the modelling, the CALPUFF 112 air quality model was run in 3-D mode to predict the maximum ground level concentrations for NO x, CO, fine particulate matter, and ammonia (NH 3 ) which were then compared to the Alberta Ambient Air Quality Objectives Canadian Ambient Air Quality Standards. Table Fine Particulate Matter (PM 2.5 ) and Oxone Canadian Ambient Air Quality Standards. Canadian Council of Ministers of the Environment. Accessed at: Alberta Air Emission Standards for Electricity Generation and Alberta Air Emission Guidelines for Electricity Generation. Table B New Generating Units Of A Natural Gas Fired Or Cogeneration Power Plant, Alberta Environment (now Alberta Environment and Sustainable Resource Development) December CALPUFF is an advanced non-steady-state meteorological and air quality modelling system developed by Exponent scientists. Decision 3183-D (June 9, 2015) 37

44 to assess compliance. Golder reported that the modelling was conducted in accordance with the Alberta Air Quality Model Guidelines Golder reported that because project emissions would result in a minimal increase in the ground level concentrations of NO 2, PM 2.5, and NH 3, all would be below the Alberta Ambient Air Quality Objectives for the proposed power plant s normal operations. 114 While no change in ground level CO concentrations was predicted when the proposed power plant would be operating at its full load, one exceedance per year, of the eight-hour Alberta Ambient Air Quality Objective for CO, was predicted under the proposed power plant s idling load operating conditions With respect to fine particulate matter 24-hour average, Golder predicted two occurrences per year above the Alberta Ambient Air Quality Objectives as a result of the operation of Sundance 7, which TAMA Power asserted is consistent with the baseline case. TAMA Power stated that because these occurrences are present in both the baseline and application cases, the operation of Sundance 7 would not result in any additional exceedances of the Alberta Ambient Air Quality Objectives. 115 Golder attributed the PM 2.5 exceedances of 24-hour Alberta Ambient Air Quality Objectives to forest fires and mining operations in the area Golder responded to concerns raised by the Gunn Métis that the air quality assessment did not evaluate the potential for air emissions from the Wabamun/Genesee area to impact air quality in Edmonton. Golder explained that the air quality monitoring stations were selected based upon the Alberta Air Quality Management Guidelines, and that the predicted concentrations of NO x, both the one-hour and the annual average, would be below 25 per cent of the Alberta Ambient Air Quality Objectives west of Stony Plain, Alberta. 117 TAMA Power submitted that there was no evidence on the record of the proceeding that emissions from Sundance 7 would have any meaningful impact on the air quality in Edmonton Golder cited additional reference documents in response to the Gunn Métis concern that insufficient information was provided to demonstrate that the exceedances of the Alberta Ambient Air Quality Objectives were related to forest fires. No exceedances of the Alberta Ambient Air Quality Objectives for PM 2.5 occurred during 2008 and While exceedances occurred in 2010, 2011 and 2012, the exceedances were attributed to forest fires by published sources TAMA Power also addressed the Gunn Métis concerns with PM 2.5, stating that the secondary formation of PM 2.5 was included in its modelling. Golder confirmed that Sundance 7 would comply with current and future Alberta Source Emission Standards To address the Gunn Métis concern that the air modelling did not assess air quality in the Edmonton region, Golder indicated that the prevailing wind in the project area was from the Exhibit 3183-X0012, TAMA Power Sundance 7 Air Quality Assessment, Section 8.0, Conclusions, PDF page 234. Exhibit 3183-X0012, TAMA Power Sundance 7 Air Quality Assessment, starting on PDF page 149. Transcript, Volume 7, page 1150, lines Exhibit TAMAPOWE-3183, Application, PDF page 45. Exhibit 3183-X0228, Response of Golder Associates to Pembina Institute Report, figures 4 and 5. Transcript, Volume 7, page 1155, lines Decision 3183-D (June 9, 2015)

45 northwest not toward the Edmonton region. NO 2 concentrations are higher near the Wabamun-Genesee area, decrease in a easterly direction, and then begin to rise again near Edmonton. The highest concentrations of NO 2 were found downwind of the predominate wind direction, not toward Edmonton. Golder concluded that this pattern of ambient air concentrations suggested that there was not substantial overlap of the resulting NO 2 concentrations from these two air emission sources Golder disagreed with the Gunn Métis assertion that a report published by the Government of Alberta has attributed elevated PM 2.5 levels in the city of Edmonton to emissions from power generation in the Lake Wabamun area. Golder indicated that, contrary to the submission of the Gunn Métis, the Government of Alberta report did not conclusively identify any source of the elevated PM 2.5 in the Edmonton region but vehicular emissions were specifically identified as a likely cause TAMA Power retained Intrinsik Environmental Sciences Inc. (Intrinsik) to respond to the evidence of the Gunn Métis. Intrinsik 119 indicated that the Powers and Genesee air monitoring stations in the area had been recording PM 2.5 data for over 10 years. The results of Intrinsik s analysis of the concentration levels between 2006 and 2009 showed that the concentrations of PM 2.5 of approximately 4.1 µg/m 3 and 3.5 µg/m 3, were far below the levels in Edmonton (8.7 µm/m 3 ) and Calgary (8.3 µg/m 3 ) during the same time period, and well below the Canadian Ambient Air Quality Standards. Views of the Cymbaluks 247. The Cymbaluk family expressed concerns about the proposed power plant s contributions to dust, air contaminants, pollution and air quality impacts The Summer Village of Kapasiwin submitted concerns about the operation of Sundance 7 resulting in additional emissions to the airshed. It acknowledged that TAMA Power s information shows there will likely be a net reduction of NO x emissions when Sundance 1 and 2 are decommissioned. It stated that it is probable that additional units will be added to Sundance 7 and that this will result in increased air emissions, especially NO x, which will continue to affect residents in the regional airshed, including those in the Summer Village of Kapasiwin The Summer Village of Kapasiwin added the importance, to it and to its ratepayers, of decommissioning the existing coal-fired power plants in accordance to the timeline predicted by TAMA Power. It further recommended that an appropriate condition be implemented to this effect should the Commission approve the proposed power plant Views of the Gunn Métis 250. The Gunn Métis is concerned with the current and future levels of air pollution. The Gunn Métis indicated that it is supported by TAMA Power s air quality assessments as well as a recent technical investigation by the Government of Alberta, which both showed an exceedance of the Alberta Ambient Air quality Objectives in relation to PM 2.5. The Gunn Métis asserted that Exhibit 3183-X0229. Appendix 13. Letter dated March 31, 2015 from Intrinsik to TAMA Power Re: Review of "Report on Potential Health Effects of Natural Gas Electric Generation from Sundance 7: An Expert Report for the Regulatory Review". Exhibit 3183-X0147, Submission of David Cymbaluk, starting on PDF page 6. Decision 3183-D (June 9, 2015) 39

46 Sundance 7 will add fine particulate matter to an already overburdened airshed. 121 It further submitted that ambient concentrations of fine particulate matter are also exceeded in Edmonton and the Government of Alberta has identified electricity generation at Lake Wabamun as a contributor to the problem Mr. Read of the Pembina Institute submitted that the project is located within the Capital Region Airshed Zone which has been experiencing exceedances of air contaminants; specifically, exceedances of fine particulate matter. He reported that there is considerable evidence that the electricity generation facilities in the region are contributing to these exceedances. He stated that at lower emissions intensities, new combined-cycle generation in the Wabamun area will contribute significant additional NO x emissions, because of the quantity of new generation planned for the region Sundance 7 is also located within the West Central Airshed Society Airshed Zone, which contains seven continuous monitoring stations located within a 50-kilometre radius of the project. Mr. Read indicated that although TAMA Power s application shows that these seven stations are representative of the air quality near the project, monitoring stations located more than 50 kilometres from the project were not considered. Mr. Read reported that the seven monitoring stations that were considered have all experienced PM 2.5 exceedances in recent years Mr. Read did not accept Golder s conclusion that forest fires were a likely cause of some of the elevated readings of PM 2.5. He stated that no significant evidence of the contribution from either forest fires versus the electric generation facilities was provided. He indicated that Alberta requires all industrial facilities be designed and operated to adhere to Alberta s Ambient Air Quality Objectives, even during unique weather systems or when other pollution sources, such as forest fires, arise Mr. Read submitted that there have been PM 2.5 exceedances at three monitoring stations in Edmonton. He reported there have also been less severe exceedances at monitoring stations in the West Central Airshed Society, near the existing coal power plants and the project. He indicated that these exceedances have occurred under standards that are less stringent than the new standards in place for He asserted that if air quality does not improve dramatically, the implementation of more stringent ambient air quality standards may continue to result in exceedances even if minor air quality improvements are made The Gunn Métis contended that TAMA Power had not provided evidence that credibly contradicted the findings of the Government of Alberta and the Pembina Institute. 127 Golder used CALPUFF to conduct its air quality modelling which the Alberta Air Quality Modelling 121 Transcript, Volume 7, page 1221, lines Transcript, Volume 7, pages , lines 23-25, Exhibit 3183-X0110, Proposed Sundance 7 and Capital Region Air Quality Cumulative Impacts, PDF page Exhibit 3183-X0110, Proposed Sundance 7 and Capital Region Air Quality Cumulative Impacts, Introduction, PDF page Exhibit 3183-X0110, Proposed Sundance 7 and Capital Region Air Quality Cumulative Impacts, Section 2.3.1, Fine particulate matter exceedances in the capital region, PDF page Exhibit 3183-X0110, Proposed Sundance 7 and Capital Region Air Quality Cumulative Impacts, Section 2.3, Recent exceedances, investigation, and tightening standards, PDF pages Transcript, Volume 7, pages , lines 24-25, Decision 3183-D (June 9, 2015)

47 Guidelines cite as a reliable regulatory model that can be used to predict the transport of emissions over distances of one to 200 kilometres. Therefore, there was no technological barrier to TAMA Power providing better information to the Commission regarding the dispersion of PM 2.5 associated with Sundance The Gunn Métis submitted that continuous air quality monitoring at several local stations was incomplete and TAMA Power had not identified the potential local impacts to air quality. 129 Further, there was no ambient air monitoring station west of Stony Plain to measure substances of concern to the Gunn Métis. The Gunn Métis suggested that full monitoring in these locations is important to understand the potential air quality impacts to a large proportion of Gunn Métis community members The Gunn Métis submitted that more data would be required to understand local air impacts on its community. It requested that the Commission require TAMA Power to contribute financially to support continuous monitoring of substances at existing air quality monitoring stations, and to create a new monitoring station west of Stony Plain to measure all parameters in advance of the operation of Sundance Commission findings 258. It is the evidence of TAMA Power that air quality will be addressed through the design of the proposed power plant and the commitments made in the application to implement the proposed mitigation measures, such as the selective catalytic reduction system The Commission understands that the Alberta Ambient Air Quality Objectives are regional goals for air quality that may be affected by a variety of regulated and non-regulated emission sources. Golder s evidence demonstrated that, with the exception of fine particulate matter, air emissions from the project alone are predicted to be lower than the Alberta Ambient Air Quality Objectives and that the incremental increase in NO 2, CO and PM 2.5 concentrations will be minimal during normal operations. The Commission notes Golder s prediction that there may be one exceedance per year of the eight-hour CO standard when the proposed power plant is idling. However, there will be no increase in the number of exceedances of the 24-hour Alberta Ambient Air Quality Objectives for PM 2.5 relative to current (baseline) conditions Gunn Métis witnesses gave evidence regarding air quality concerns in the Edmonton area. The Gunn Métis argued in this regard that the scope of the air quality modelling conducted by Golder was too limited in scope and should have further considered the project s effects on the air quality in Edmonton and the Capital Region. Because the boundaries of the air modelling study were consistent with the methodology specified by ESRD, the Commission finds that no additional modelling of air quality will be required if the project is approved The Commission finds that the incremental difference in air quality due to the project will be minimal, and likely temporary. Assuming there are no other changes in emissions, overall ambient concentrations of nitrous oxides, carbon monoxide and fine particulate matter are expected to decrease upon the retirement of existing coal-fired power plant in the vicinity 128 Transcript, Volume 7, page 1224, lines Transcript, Volume 7, page 1225, lines Transcript, Volume 7, page 1226, lines Transcript, Volume 7, page 1261, lines Decision 3183-D (June 9, 2015) 41

48 because the project utilizes natural gas combined-cycle technology. Furthermore the Commission has regard for ESRD s oversight in establishing air emission standards The Commission finds that the Gunn Métis submission that the air quality monitoring network is not adequate and should be supplemented was not supported by the evidence on the record Based on all of the above, and given the nature of the proposed power plant and the technology used the Commission finds that the project s impact on air quality will be minimal The Commission has considered the concerns raised about the retirement of existing facilities or generation facilities proposed in the future and impacts on air quality. However, the current framework established by the Hydro and Electric Energy Act states clearly that the Commission is to consider each application for a power plant individually. 11 Health 265. The Gunn Métis stated its concerns about the health effects associated with its members proximity to power plants, which related primarily to the health effects of fine particulate matter and NO 2 exposure. The Gunn Métis hired Dr. Joseph Vipond to provide evidence of the health effects of air emissions. It was the evidence of Dr. Vipond that the project would result in health effects for both nearby residents and those living in the broader Capital Region TAMA Power retained Intrinsik to provide reply evidence on the issue of the potential health effects of the project and to respond to Dr. Vipond s report. Intrinsik s report indicated that if actual levels are consistent with the levels predicted in the air modelling conducted by Golder, the emissions from the project would not result in health effects TAMA Power also retained Dr. Don Davies, of Intrinsik, who testified about the health effects from air emissions at the hearing Standards 268. The Canadian Ambient Air Quality Standards, referenced above, are health-based air quality limits for pollutant concentrations in outdoor air. Under the Air Quality Management System, Environment Canada and Health Canada established air quality standards for PM 2.5 and ozone, amongst other air quality parameters On May 13, 2013, new Canadian Ambient Air Quality Standards for PM 2.5 were issued. The new standards provide more stringent limits for outdoor air quality in Canada starting in 2015 and again in 2020, as shown in the table below. The standards also include a long-term (annual) target for PM Pollutants Old Standards New Standards PM2.5 Annual - 10 µg/m³ 8.8 µg/m³ PM2.5 for 24-hour 30 µg/m³ 28 µg/m³ 27 µg/m³ 132 Exhibit 3183-X0122, Canada Gazette Part I Excerpt re Ambient Air Quality, PDF page Decision 3183-D (June 9, 2015)

49 270. While there are no Canadian Ambient Air Quality Standards for levels of NO 2, the Alberta Ambient Air Quality Objectives have guidelines for NO 2 levels Views of the applicant 271. TAMA Power retained Intrinsik to evaluate the predicted levels of NO 2 and PM 2.5 in the ambient air with the addition of the proposed power plant, and the levels of NO 2 and PM 2.5 associated with adverse health effects in humans. Intrinsik also responded to Dr. Vipond s report When discussing whether exposure to the project s emissions, including NO 2 and PM 2.5, could be hazardous to health, Intrinsik stated that a chemical could be considered toxic if it has the capacity to cause health effects. However, there is no risk if there is not enough exposure. 133 Intrinsik explained that there is a dose-response relationship that defines the type and extent of injury that can be produced by a chemical as a function of its intrinsic toxicity and the amount, duration and frequency of the exposure Intrinsik cited several sources that suggested there is no evidence that NO 2 causes clinically relevant effects in asthmatics at concentrations up to 1,100 µg/m Intrinsik stated the predicted peak one-hour NO 2 concentration at sensitive sites, such as residential, school and recreational locations, is µg/m 3 and the concentration at the maximum point of impingement (MPOI) where exposure to air emissions is greatest, is µg/m 3. Based on these exposure levels, Intrinsik did not expect the air concentration in the area, including the predicted contributions of NO 2 from Sundance 7, to result in any adverse health effects As with NO 2, Intrinsik predicted the MPOI for PM 2.5 under the baseline and application cases 135 and the concentrations levels at sensitive areas, such as residences, schools and recreational areas. The MPOIs were generally found around the project area and not in close proximity to the sensitive areas. As shown in the table below, Intrinsik found an increase of predicted 24-hour concentration of PM 2.5 from 17.2 µg/m 3 to 17.4 µg/m 3 at the MPOI. The predicted 24-hour concentration of PM 2.5 in sensitive areas ranged from 5.7 to 13.9 µg/m 3 in the baseline case to between 6 and 14 µg/m 3 in the application case. These concentrations are well under the Canadian Ambient Air Quality Standards for both 2015 (28 µg/m 3 ) and 2020 (27 µg/m 3 ). The predicted annual concentration of PM 2.5 increased by 0.1 µg/m 3 for the MPOI and for the school. The predicted MPOI annual concentration was 4.5 µg/m 3 and the sensitive areas ranged from 1.3 to 2.5 µg/m 3, considerably less than the Canadian Ambient Air Quality Standards of 10 µg/m 3 (2015) and 8.8 µg/m 3 (2020) Exhibit 3183-X0229, Appendix 13. Letter dated March 31, 2015 from Intrinsik to TAMA Power Re: Review of "Report on Potential Health Effects of Natural Gas Electric Generation from Sundance 7: An Expert Report for the Regulatory Review", PDF pages 5-6. Exhibit 3183-X0229, Appendix 13. Letter dated March 31, 2015 from Intrinsik to TAMA Power Re: Review of "Report on Potential Health Effects of Natural Gas Electric Generation from Sundance 7: An Expert Report for the Regulatory Review", PDF page 7. The baseline case represents the currently predicted air concentrations. The application case refers to cumulative emissions with the addition of the proposed power plant (application case). Decision 3183-D (June 9, 2015) 43

50 Location Predicted 24-hour concentration in air (µg/m 3 ) Predicted annual concentration in air (µg/m 3 ) Baseline case Application case Baseline case Application case MPOI Residential School Recreational Canadian Ambient Air Quality Standard 28 (2015) 27 (2020) 10 (2015) 8.8 (2020) 275. Intrinsik stated that under existing conditions, when the contribution from forest fires is excluded, NO 2 concentrations in the area consistently meet the Alberta Ambient Air Quality Objectives and PM 2.5 concentrations are below Canada-wide standards In its report, Intrinsik stated that epidemiological studies exploring the relationship between short-term PM 2.5 exposure and health effects tend to estimate the change in rate of disease to large increases in PM 2.5, such as an increase of 10 µg/m 3. It added that it was difficult to determine the magnitude of change in the frequency of mortality or morbidity due to small changes in PM 2.5. According to Intrinsik, the U.S. Environmental Protection Agency considered air quality down to the lowest measured levels of 5.8 µg/m 3 as long-term averages. Data less than the lowest measured level is extrapolated and not measured, increasing uncertainty. Intrinsik s report showed that the predicted annual concentrations of PM 2.5 in the project area were less than the lowest measured level Intrinsik concluded that both the NO 2 and PM 2.5 emissions from the proposed power plant are not expected to appreciably increase the risk of adverse health effects in the study area. The change between the predicted air concentrations currently (the baseline case) and the cumulative emissions with the addition of the proposed power plant (application case) are negligible to low In response to the Gunn Métis concern about the project s effects on air quality in the Capital Region, Intrinsik stated that based on Golder s air modelling and the predicted levels of NO 2 and PM 2.5, it did not expect any health-related effects in the Edmonton area In response to the Cymbaluk family s concerns about health, TAMA Power reviewed the 2006 Wabamun and Area Community Exposure and Health Effects Assessment Program - Final Report filed by the Cymbaluks and submitted that this report was not representative of regional ambient air quality. TAMA Power also indicated that the report concluded that local air quality was good and met air quality guidelines and that incidences of respiratory diseases in the region are comparable to other areas within and outside Alberta In response to the Gunn Metis concerns with the health risk from polycyclic aromatic hydrocarbons (PAH), TAMA Power stated that Sundance 7 is expected to produce very low levels of PAH because the proposed power plant would use equipment with a high efficiency of natural gas combustion. 137 PAHs are primarily formed from low-efficiency combustion of fossil Exhibit 3183-X0229, Appendix 13 Letter dated March 31, 2015 from Intrinsik to TAMA Power Re: Review of "Report on Potential Health Effects of Natural Gas Electric Generation from Sundance 7: An Expert Report for the Regulatory Review", PDF page 12. Transcript, Volume 1, page 41, lines Decision 3183-D (June 9, 2015)

51 fuels. TAMA Power submitted that because Sundance 7 is a highly efficient combined-cycle gas turbine, it is not expected to impact the health of traditional plants or of the people that use them Views of the Cymbaluks 281. The Cymbaluks listed general concerns arising from the project such as air contaminants and pollution, human health impacts such as respiratory and cardiovascular diseases, and air quality impacts. They stated that public health concerns already exist in the community and broader region The Cymbaluks included a study entitled 2006 Wabamun and Area Community Exposure and Health Effects Assessment Program - Final Report 138 in their submission. This report, which expanded upon their concerns, 139 found an increased prevalence and frequency of respiratory disorders in the Wabamun area Views of the Gunn Métis 283. The Gunn Métis advocated for the establishment of thresholds for ambient air quality that are protective of the health of its members. It requested that the Commission condition any approval to this effect The Gunn Métis members have lived with the impacts of air pollution for many decades and were concerned with the potential health impacts of increasing air emissions where they live and exercise their traditional activities. The members spoke of asthma and other respiratory diseases in the community Dr. Vipond who was retained by the Gunn Métis, reviewed and interpreted medical literature to provide the effects of emissions on human health. He also provided an opinion about the emission levels of Sundance 7 and its impacts on the Capital Region airshed. Dr. Vipond stated that his conclusions in this regard were based on literature cited in his report and TAMA Power s application Dr. Vipond s report indicated that the combustion of natural gas produced PM 2.5, SO x and NO x and that more PM 2.5 was produced through secondary reactions in the atmosphere. He stated that there was a direct relationship between exposure of these substances and mortality, and that there was no safe exposure limit to PM 2.5 and ozone. 140 He also stated that exposure to these substances was associated with small birth weight babies, respiratory disease, cardiovascular disease, strokes and autism In his report, Dr. Vipond stated that NO 2 irritated the lungs and was dangerous to those with pre-existing respiratory conditions. He cited studies that noted associations between levels of NO 2 in the Edmonton area with emergency room visits for stroke, pediatric asthma and cardiac and respiratory disease Exhibit 3183-X0147, Submission of David Cymbaluk, starting at PDF page 48. The Wabamun and Area Community Exposure and Health Effects Assessment. August Health Surveillance Branch at Alberta Health and Wellness. Exhibit 3183-X0147, Submission of David Cymbaluk, PDF page 235. Transcript, Volume 5, page 914, lines Decision 3183-D (June 9, 2015) 45

52 288. Dr. Vipond added that the composition and effects of PM 2.5 vary greatly and cited studies that indicate combustion-related PM 2.5, not naturally occurring PM 2.5, is associated with mortality, as well as cardiac and respiratory diseases. He referred to studies that linked PM 2.5 to cardiovascular events and autism, and indicated long-term exposure had a more severe effect than short-term exposure Dr. Vipond found in his report that Sundance 7 would substantially increase primary PM 2.5 and would significantly increase SO x and NO x. However, when questioned at the hearing, he indicated that he wanted to strike the words from his report referring to smaller but significant increases of SO x, and acknowledged that SO x levels were not really a concern for the TAMA Power application Dr. Vipond is concerned that the emissions from the project may impact the health of residents in the Capital Region. He referred to the December 2014 report of the Government of Alberta on the Capital Region and PM In that report, the annual assessment of ambient air quality showed that Edmonton Central and Edmonton East ambient air quality monitoring stations within the Capital Region were in exceedance of the Canada-wide standards for PM In response to questions about his opinion that the air quality in Edmonton and the Capital Region would be affected by the proposed power plant, Dr. Vipond stated that this was common sense. He further clarified that when he said, in his opening statement, that Sundance 7 would increase the primary PM 2.5 in the area by 5.2 per cent, he was referring to the total increase in emissions from stacks and not an increase in ambient air concentrations Andrew Read of the Pembina Institute acknowledged at the hearing that although he is not a health expert, his research indicated that the Edmonton area has been experiencing exceedances of PM 2.5 and a response plan is required to reduce the air pollution in order to minimize the associated health risks. The report stated that the secondary formation of PM 2.5 from NO x and SO 2 have the greatest human health impacts, and could cause respiratory and cardiovascular impacts Karen Kubiski stated that one purpose of her report was to identify possible health risks attributed to PAH absorbed by ethnobotanical species. Ms. Kubiski classified PAHs as a group of persistent organic contaminants that are considered highly carcinogenic. 145 In her report, she stated that natural gas combustion produces PAH and plants take up PAH if it is present in the soil, the air, or on a plant s leaves. The report stated that there may be health impacts if ethnobotanical plants take in PAH and are used medicinally or as food. Ms. Kubiski clarified that her report did not comment on the PAH levels produced by Sundance Views of the Paul First Nation 294. Joel Melanson, representing the Paul First Nation, expressed general health concerns, including respiratory conditions experienced by members of the Paul First Nation Transcript, Volume 5, page 913, lines 1-5. Exhibit 3183-X0114, Tab 6 Dr. Vipond Report, Report on Potential Health Effects of Natural Gas Electrical Generation From Sundance 7, Section References, PDF page 9, citation three. Transcript, Volume 5, page 937, lines Exhibit 3183-X0110, Proposed Sundance 7 and Capital Region Air Quality Cumulative Impacts, page 8. Exhibit 3183-X0107, TAMA Power s Sundance 7 Project Ethnobotanical Effects, PDF page Decision 3183-D (June 9, 2015)

53 295. Elders of the Paul First Nation also expressed health concerns about the project. Edward Adams stated that he was concerned about the deadly effects of carbon monoxide. 146 Lloyd Saulteaux stated that he was concerned about the effects of the project on locally collected medicines and food that the Paul First Nation use and depend upon Geordy Saulteaux expressed general concerns about air quality. Mr. Saulteaux stated he lived approximately a mile from the shore of Lake Wabamun and expressed concern that he has been breathing that air all of his life, and that small children that live there have to breathe the air that currently contains fly ash Commission findings on expert objectivity and weight 297. The Commission finds that Dr. Davies provided evidence that was consistent with his experience in a relatively objective manner. He demonstrated considerable knowledge of the health-related issues raised in the hearing. The Commission found him to be credible and his evidence to be useful Dr. Vipond has experience and expertise in human health as an emergency room physician. He also provided an opinion about the general health effects of the project on Gunn Métis members and stated that his conclusions in this regard were based on his review of literature. Dr. Vipond did not, however, appear to have specialized knowledge of, or experience with air emissions and their health effects specifically. Consequently, the Commission finds that Dr. Vipond lacks the necessary skills, experience and training to comment on the interpretation of epidemiologic studies or air modelling. This apparent unfamiliarity was taken into account by the Commission when it weighed Dr. Vipond s evidence on the general health impacts of the project The Commission accepts Ms. Kubiski as an expert in vegetation ecology specializing in ethnobotany Commission findings on air quality in the project area 300. The evidence before the Commission was that power plant air emissions can be associated with adverse health effects and although all experts agreed that emissions may cause health effects, they disagreed about the level at which such adverse effects may occur TAMA Power s witnesses stated that if the cumulative emissions, including the project s contributions, were evaluated, they would be below the levels at which health effects would occur. In contrast, Dr. Vipond stated that there would be an increase in health-related concerns from emissions as a result of the project s effects on air quality While the potential adverse health effects of NO 2 and PM 2.5 are not questioned, what is questioned is whether the emissions from Sundance 7 would cause these health effects It was Dr. Vipond s evidence that there is no safe emission levels for PM 2.5 and ozone. The Commission does not find the studies cited by Dr. Vipond to be compelling evidence that there is no safe level of air emissions. In addition, the studies cited by Dr. Vipond contained Transcript, Volume 5, page 980, lines Transcript, Volume 5, page 984, lines 1-4. Decision 3183-D (June 9, 2015) 47

54 emission level data which far exceeded the levels that would be present in the study area should the project be approved Dr. Vipond s report discussed the health impacts of PM 2.5 and NO x, such as respiratory and cardiovascular disease, morbidity and mortality. His evidence does not demonstrate that Sundance 7 is a significant source of these emissions or that the net increase in emissions would result in these health effects. Dr. Vipond did not correlate the levels predicted by Golder s air modelling with the health effects that would result. In addition, he provided little rationale for his predictions on the number of people who would experience health effects from the project The Commission recognizes that the incremental difference in emission levels due to the project would be minimal. It also agrees with Dr. Davies that a dose-response relationship between emissions of NO x and PM 2.5 and health must be considered and finds that the expected dose caused by the addition of the Sundance 7 air emission levels is low enough that an adverse health impact, or response, is unlikely Having regard to the health-related evidence on the record, the Commission finds that the most persuasive evidence is the Canadian Ambient Air Quality Standards, in which Health Canada and Environment Canada have specified objectives for the protection of human health The Commission observes that the proposed exceedances of Alberta s Ambient Air Quality Objectives are consistent with existing levels, with the exception of one exceedance of CO levels that would result from the proposed power plant idling. The number and duration of the PM 2.5 exceedances with the addition of the project would remain unchanged from the status quo. There was no evidence before the Commission that the 0.04 µg/m 3 increase in the cumulative PM 2.5 emissions or the one exceedance of CO levels would create any adverse health effects on members of the public Having regard to the foregoing, the Commission finds that adherence to the predicted emissions levels will protect members of the community, including those with asthma, from health effects related to PM 2.5 and NO x emissions The Commission has reviewed the evidence on the health effects of emissions from Sundance 7 on the Capital Region, including Edmonton. In the Commission s view, the evidence does not support the proposition that the emissions produced by the project are likely to result in health effects to those living in the Capital Region because on the basis of the results of the air modelling, there would be no appreciable change in air quality Dr. Vipond did not provide a basis for his predictions about air quality in Edmonton resulting from the proposed power plant. As the Commission understands it, Dr. Vipond did not take into account the emissions levels predicted by Golder s air quality modelling The evidence on the record of this proceeding does not support the Gunn Métis assertion that air emissions from the project will result in adverse health effects for its members. To the contrary, the evidence before the Commission is that the levels of emissions, including PM 2.5, would be below the standards and objectives designed to be protective of human health. 148 Exhibit 3183-X0228, Appendix 12 Response of Golder Associates to Pembina Institute Report, page Decision 3183-D (June 9, 2015)

55 Consequently, the Commission finds that the evidence before it supports the conclusion that air emissions from the project would not be associated with any increased health effects While Ms. Kubiski s report comments on the health impacts associated with PAHs, consideration of the emission levels from Sundance 7 was absent. In this regard, the evidence submitted by TAMA Power indicates that the project will be an insignificant source of PAHs. The Commission therefore finds that there is insufficient evidence before it to support the conclusion that there will be any adverse health effects to Gunn Métis members who may ingest or otherwise contact plants growing in the project area. 12 Construction and traffic 12.1 Views of the applicant 313. TAMA Power heard various concerns related to construction activities. TAMA Power stated that the effects of construction would be temporary and protocols would be in place to address construction-related issues TAMA Power would form a working group to understand and find solutions to traffic concerns and to develop and implement a well-managed traffic plan. It would plan to bus employees to and from work and would encourage its engineering, procurement and construction contractor to do the same. 150 It would also coordinate the timing of shifts with existing TransAlta operations to stagger start and stop times and minimize traffic on the roads. 151 Material deliveries would be scheduled to not interfere with peak traffic periods Workers and contractors accessing the project site would be requested to use Highway 627 and Range Road 42, instead of going through the Paul First Nation s reserve to minimize additional traffic on the reserve TAMA Power would enforce a zero-tolerance policy on unsafe driving and would work with local authorities to ensure its workers were using the roads safely With respect to construction noise, TAMA Power stated that it would comply with Parkland County noise bylaws and would limit work to a daytime schedule, except the final months, where construction is primarily indoors TAMA Power stated that employees and contractors found trespassing on private land would be reprimanded. Signage would be posted along the property line, clearly identifying private property, to mitigate the chance of trespass. A fence would also be built around the work site Exhibit 3183-X0216, Rebuttal Evidence of, PDF page 15. Exhibit 3183-X0216, Rebuttal Evidence of, PDF page 15. Exhibit 3183-X0216, Rebuttal Evidence of, PDF page 15. Transcript, Volume 1, page 154, lines Transcript, Volume 3, page 572, lines Decision 3183-D (June 9, 2015) 49

56 12.2 Views of the Cymbaluks 319. The Cymbaluk family is concerned that construction activities associated with the project would bring increased dust, noise, traffic and development impacts. 154 Family members also had previously experienced trespass on their property and are concerned that this will arise again with construction activities In addition, the Cymbaluk family is concerned about road safety and increased traffic because there are already problems with reckless driving on Range Road 42. TAMA Power intends to use Range Road 42 to bypass the Paul First Nation, but that road goes past the family s residence Views of the Gunn Métis 321. The Gunn Métis anticipated an influx of non-community members for the construction and operation of the project which would increase garbage and traffic, specifically on Sundance Road Views of the Paul First Nation 322. The Paul First Nation is concerned primarily with increased traffic through the reserve and speeding. The Paul First Nation said that while TransAlta personnel try to respect speed limits, the general public speeds through Commission findings 323. The Commission heard multiple parties concerns with increased traffic, especially during the construction of the proposed power plant. The Commission agrees with TAMA Power that these impacts are temporary in nature and finds that TAMA Power s mitigation methods would adequately address these concerns. Additionally, busing staff and scheduling shift changes and deliveries would help alleviate traffic issues. The Commission also considers that using Highway 627 and Range Road 42 would minimize any traffic increase for the Paul First Nation and is encouraged by TAMA Power s commitment to safety and enforcing a zero-tolerance policy toward unsafe driving The Commission finds TAMA Power s proposed course of action to address the issues of construction noise and potential trespass raised by the Cymbaluk family to be reasonable. Construction would be primarily limited to daytime activities and associated noise would be temporary. The project worksite would also be fenced, which would minimize the chance for accidental trespass onto the Cymbaluk family s land The Commission is satisfied that TAMA Power has provided adequate mitigation measures to reduce the impacts that would result from the construction and increased traffic at Sundance Exhibit 3183-X0147, Submission of David Cymbaluk, PDF page 12. Transcript, Volume 4, page 710, lines Transcript, Volume 2, page 272, lines Transcript, Volume 5, page 978, lines Decision 3183-D (June 9, 2015)

57 13 Safety 13.1 Views of the applicant 326. As described in the application, the proposed power plant initially utilized anhydrous ammonia, which would be used in the selective catalytic reduction system to reduce NO x emissions. The inclusion of a selective catalytic reduction system in a natural gas power plant is a requirement of ESRD and the Clean Air Strategic Alliance Ammonia is a corrosive chemical that can be in solid or gaseous form and can irritate the skin, eyes and lungs and can be life threatening in severe cases. The table below summarizes potential health impacts caused by ammonia at various concentrations. 158 Ammonia concentration (ppm) Resulting Conditions on Humans 5-25 Minor irritation of the eye and respiratory tract, odour threshold by most persons Eye and respiratory tract irritation in unadapted individuals for minutes 25 Marked eye, skin, and respiratory irritation. National Institute for Occupational Safety and Health Recommended Exposure Limit 8-hour Time Weighted Average 100 No adverse effect for average worker over two hours. Deliberate exposure for long periods is not permitted. 400 Immediate nose and throat irritation. No serious effects after 30 minutes to 1 hour. 700 Immediate eye irritation. No serious effect after 30 minutes to 1 hour Convulsive coughing. Severe eye, nose and throat irritation. Could be fatal after 30 minutes Convulsive coughing. Severe eye, nose and throat irritation. Could be fatal after 15 minutes Lowest concentration known to be lethal to humans exposed for 5 minutes via inhalation Respiratory spasm. Rapid asphyxia TAMA Power retained Golder Associates to conduct an Anhydrous Ammonia Tank Risk Modelling Study in September 2014 (the Golder anhydrous ammonia report), which examined three accidental release cases due to equipment failure, over five atmospheric conditions, as follows: Case 1: The liquid release of ammonia due to the tanker truck driving away while still connected to the storage tank or a rupture of the pipe connecting the ammonia storage tank to the proposed power plant; Case 2: The venting of the storage tank, due to the safety relief value, in the event of a fire; and Case 3: A full release of the storage tank over a 10-minute period The Golder anhydrous ammonia report considered the frequency of failure, the frequency of meteorological conditions that inhibit or enhance the rapid mixing and dispersion of the ammonia, and the probability of fatality due to a hazardous plume at ground level at distances downwind of human habitation. 158 Exhibit 3183-X0014, Final Report TAMA Power Sundance 7 Anhydrous Ammonia Tank Risk Modelling Study. Decision 3183-D (June 9, 2015) 51

58 330. Golder selected two endpoint threshold levels for assessing the potential effects associated with the release of ammonia, the Immediately Dangerous to Life and Health (IDLH) and the Emergency Response Planning Guide Level Two threshold (ERPG-2). These are summarized in the table below. 159 NH3 (ppm) Exposure Observed effects period (sec) IDLH defines a condition that poses a threat of exposure to airborne contaminants when that exposure is likely to cause death or immediate or delayed permanent adverse health effects or prevent escape from such an environment. IDLH values are based on the effects that might occur as a consequence of a 30-minute exposure. (NIOSH, 1994 CDC, 2014) ERPG-2: The maximum airborne concentration below which it is believed nearly all individuals could be exposed for up to 1 hour without experiencing or developing irreversible or other serious health effects or symptoms that could impair their abilities to take protective action (AIHA, 2013, 2014) The Golder anhydrous ammonia report listed strategies designed to mitigate the chance of an accidental release of ammonia, as follows: 160 the anhydrous ammonia storage tanks will be provided with a minimum of two pressure safety valves; each ammonia pump will have a safety value at the pump discharge; ammonia vapour detectors will be provided around the ammonia storage area, in the ammonia containment pit, near the ammonia unloading station, and at each of the two SCR skids near the heat recovery steam generators; the vapour detectors will be coupled to local alarm horns, beacons, and a distributed control system alarm, which will be located near the ammonia storage area, near the ammonia vapourizer areas, and near the selective catalytic reduction manifolds by the heat recovery steam generators; the selective catalytic reduction system will be equipped with an automatic shutdown control; the ammonia storage tank will be equipped with a tank level indicator that is connected to the distributed control system; visual and audio alarms viewable from an unloading truck cab that can alert the driver when a high level is reached during filling of the ammonia storage tank will be installed; containment around the storage tanks and pumps will be installed; and a concrete pad unloading area with spill protection, safety barriers and safety shower/eyewash station will be installed Exhibit 3183-X0014, Final Report TAMA Power Sundance 7 Anhydrous Ammonia Tank Risk Modelling Study, PDF page 4. Exhibit 3183-X0014, Final Report TAMA Power Sundance 7 Anhydrous Ammonia Tank Risk Modelling Study, PDF pages Decision 3183-D (June 9, 2015)

59 332. At the request of the Cymbaluk family, Golder conducted additional modelling under a different meteorological scenario which the Cymbaluk family believed would be more hazardous at the family s residence. After comparing the results of the original modelling with that of the additional modelling, Golder concluded that the original modelling presented the conditions that result in the highest risk to the Cymbaluk family s residence On April 2, 2015, TAMA Power indicated that it changed its design to utilize aqueous ammonia, a less concentrated form of ammonia. TAMA Power submitted a revised risk assessment prepared by Golder as part of its reply evidence entitled the Aqueous Ammonia Tank Risk Modelling Study (the Golder aqueous ammonia report). 162 TAMA Power stated that with the change, the 1 in 1,000,000 risk of fatality is predicted to occur approximately 95 metres from the location of the storage tanks, well within the project site. 163 This was based on the probability of fatality modelled by Golder for aqueous ammonia The Golder aqueous ammonia report was completed using the same failure scenarios and other conditions used in its anhydrous ammonia report and showed that at the nearest residence, the maximum concentration predicted is 150 parts per million (ppm) over the course of a few seconds Golder stated that the change in ammonia resulted in the need for two ammonia storage tanks instead of one. 165 Golder explained that the risk modelling was based on one tank failing, 166 because the risk of both tanks simultaneously failing was a more unlikely scenario and would actually result in a lower risk. 167 Golder added that if both tanks did fail, the results would not be linear in that the risk of fatality or distances would double. It would be a small incremental change In response to earlier concerns that colder temperatures may result in higher consequences, Golder stated that it used an ambient temperature of 25 degrees Celsius because Canada Environmental Emergency Regulations (2011b) 169 requires that any hazard consequence modelling be conducted using that temperature. However, when it completed the Golder aqueous ammonia report, a temperate sensitivity analysis comparing the downwind hazard distance at four temperatures; negative 6.5, 3.7, 16.3 and 25 degrees Celsius, was conducted. The analysis Exhibit 3183-X0015, Technical Memorandum, TransAlta Sundance 7 Ammonia Risk Assessment Additional Scenario, PDF page 3. Exhibit 3183-X0226, Appendix 10 Revised Hazard and Risk Assessment prepared by Golder Associates for TAMA Power. Exhibit 3183-X0226, Appendix 10 Revised Hazard and Risk Assessment prepared by Golder Associates for TAMA Power, PDF page 27. Exhibit 3183-X0226, Appendix 10 Revised Hazard and Risk Assessment prepared by Golder Associates for TAMA Power, PDF page 20. Transcript, Volume 3, page 586, lines Transcript, Volume 3, page 590, lines Transcript, Volume 3, page 591, lines 2-6. Transcript, Volume 3, page 592, lines The Canadian Emergency Regulations (E2 Regulations) under the Canadian Environmental Protection Act, 1999 (CEPA 1999) Decision 3183-D (June 9, 2015) 53

60 showed a downward trend in the predicted hazard distances with decreasing ambient temperature TAMA Power submitted that it would adopt the mitigation strategies from the Golder anhydrous ammonia report into the revised aqueous ammonia storage tank design TAMA Power looked at other risks such as natural gas explosions and hydrogen leaks, using the CEPA Schedule 1 as a guide, but focused on the ammonia risk because it was the worst-consequence event. According to TAMA Power, other risks can be more comprehensively investigated as part of the emergency response planning process. 172 TAMA Power stated that it had not completed its emergency response plan but that such a plan for construction would be in place prior to beginning site construction activities, and a separate emergency response plan for operations would be in place prior to the proposed power plant commencing operations TAMA Power reiterated its commitment to engage with the Cymbaluk family in the development of the project s emergency response plan. It added that it would conduct emergency response exercises as part of its emergency response plan, and that it would offer to engage nearby stakeholders to participate in those exercises, including the Cymbaluk family, the Paul First Nation and other interested stakeholders Views of the Cymbaluks 340. The Cymbaluks retained Zelt Professional Services Inc. (Zelt) to conduct a review of the Golder anhydrous ammonia report (the Zelt report). 175 The Zelt report commented on numerous deficiencies in the Golder anhydrous ammonia report, including the temperature under which the modelling was conducted In its report, Zelt criticized the Golder anhydrous ammonia report for only considering the failure of the anhydrous ammonia storage tank, the most significant source and no other sources of ammonia such as the ammonia delivery trucks, and explosions on-site. 176 Zelt also stated that the Case 1 scenario should have been used as the catastrophic event because it evacuates the ammonia at a greater rate than the 10-minute release scenario Zelt re-evaluated the risk using its own scenarios, frequency of events and modelling software and concluded that the total risk was similar to that predicted by Golder. Zelt also criticized TAMA Power for not considering the switch to aqueous ammonia as a mitigation measure because the use of aqueous ammonia would reduce the toxic gas consequence to within 150 metres of the storage tank Exhibit 3183-X0226, Appendix 10 Revised Hazard and Risk Assessment prepared by Golder Associates for TAMA Power, PDF page 24. Transcript, Volume 3, pages , lines 6-25, 1-3. Transcript, Volume 3, pages , lines 12-25, 1. Transcript, Volume 3, page 569, lines 3-5. Exhibit 3183-X0317, TAMA Power Undertaking Responses 18 and 19. Exhibit 3183-X0153, Brian Zelt Anhydrous Ammonia Risk Review. Exhibit 3183-X0153, Brian Zelt Anhydrous Ammonia Risk Review, PDF page 9. Exhibit 3183-X0153, Brian Zelt Anhydrous Ammonia Risk Review, PDF page 11. Exhibit 3183-X0153, Brian Zelt Anhydrous Ammonia Risk Review, PDF page Decision 3183-D (June 9, 2015)

61 343. The Cymbaluk family is also concerned that only one risk, the ammonia, was considered and a full risk assessment of the operation of the proposed power plant had not been done. It noted that the closest local responders would be from Wabamun, which is approximately nine kilometres from the project site The Cymbaluk family criticized TAMA Power for not completing an emergency response plan prior to filing its application with the Commission. The family is of the view that a robust emergency response plan should be developed in advance of construction and operation and that the plan should be reviewed and tested by the Commission Views of the Gunn Métis 345. The Gunn Métis are concerned about safety. Certain members recalled an oil spill into Lake Wabamun in 2005 and questioned the existence of a plan if a full-scale accident were to happen Commission findings 346. The evidence of both Zelt and Golder is that the change from anhydrous ammonia to aqueous ammonia, as recommended by Zelt in its report, greatly reduces the risk to nearby residents. While the interveners may have concerns about some of the risk modelling, the evidence before the Commission is that the potentially fatal results of an ammonia leak are contained in a small area within the project site boundary Further, TAMA Power has made two commitments, aimed at safety, that mitigate the risk related to the use of aqueous ammonia. One is to adopt the mitigation strategies identified in the Golder anhydrous ammonia report in the aqueous ammonia storage tank design. The other is to engage with the Cymbaluk family in developing its emergency response plan and with all local stakeholders in conducting emergency response exercises The Commission accepts TAMA Power s explanation for delaying the preparation of a hazard and risk assessment and emergency response plan for construction and for operations until its power plant design is finalized. These plans are developed by the engineering, procurement and construction contractor in conjunction with TAMA Power and cannot be fully developed until the contractor is selected and the proposed power plant design is finalized Given the degree of risk and the evidence before it, the Commission does not find it necessary to require TAMA Power to file its emergency response plan with the Commission for review as requested by the Cymbaluk family. However, stakeholders should have an avenue to contact TAMA Power regarding its emergency response plan should the project be approved. Therefore, any approval would be subject to the following condition: TAMA Power shall file a letter on the record of Proceeding 3183 advising the Commission and interested parties when its emergency response plan has been finalized. This letter shall contain the contact information of the person in charge of the emergency response plan Transcript, Volume 3, page 568, lines Transcript, Volume 7, page 1350, lines Transcript, Volume 2, pages , lines 17-25, 1-5. Decision 3183-D (June 9, 2015) 55

62 14 Visual impacts 14.1 Views of the applicant 350. Because the project site is partially treed, the number of trees to be removed would be minimized. The open areas of the project site would be landscaped and new trees would be planted. Further, the heat recovery steam generator stacks are designed to be approximately 55 metres tall, roughly one third of the height of neighbouring facilities, and the proposed power plant would be set back from roads to reduce visual impacts. 182 TAMA Power submitted visual renderings, known as photomontages, to demonstrate the impact of the proposed power plant on the viewscape in the area TAMA Power acknowledged that the proposed power plant would be visible from some locations near the project site. However, because the proposed power plant is smaller than the existing Sundance power plants, it would not overwhelm the viewscape, 183 and would not be visible from Moonlight Bay TAMA Power retained Golder to prepare a report, entitled Visible Plume Assessment, regarding a modelling analysis completed to predict the potential for visible water vapour plumes (the plume) as well as ground level icing and fogging impacts. The Visible Plume Assessment presented the potential for fogging and icing associated with the project s emissions sources Golder explained that a plume becomes visible when water vapour it contains condenses either through mixing with the surrounding air, cooling or added moisture. Plumes have the potential to cause fogging or ice depending on the ambient temperature when the plume comes into contact with the ground or an elevated surface such as a building roof Golder indicated that the plume from the proposed power plant would not be large and would not overtake the sky because it localizes and would dissipate shortly after leaving the proposed power plant s cooling towers. In light of the visual angle of the plume to the proposed power plant, Golder does not anticipate that the plume would be obstructive when observed from the Paul First Nation s community In response to the Cymbaluk family s concerns about lighting, TAMA Power committed to designing the exterior lighting of the proposed power plant to minimize the impact to the night sky and to neighbours. TAMA Power stated that it would follow the Illuminating Engineering Society of North America publication IES RP-33-14, Lighting for Exterior Environments, and IES RP-20-14, Lighting for Parking Facilities, as recommend by the Cymbaluks expert. It also committed to use LED lighting, using fixtures that follow the Backlight, Uplight, and Glare rating system, and installing Fixture Seat of Approval lights, as mitigation strategies recommended by the Cymbaluks expert TAMA Power stated that Lighting Zones 1 and 2 are applicable to most areas of the proposed power plant but that certain areas may require special allowance for safety and Exhibit TAMAPOWE-3183, Application, PDF page 54. Exhibit 3183-X0216, Rebuttal Evidence of, PDF page 13. Exhibit 3183-X0216, Rebuttal Evidence of, PDF page 14. Transcript, Volume 1, pages , lines 24-25, 1-6. Exhibit 3183-X0216, Rebuttal Evidence of, PDF page Decision 3183-D (June 9, 2015)

63 operational purposes. Although it would follow the Model Lighting Ordinance, there are some allowances that the Model Lighting Ordinance does not take for industrial sites which would be required for this facility TAMA Power committed to review its lighting designs and plans to ensure the safety of employees and workers at the project site and, at the same time, to minimize impacts of stray light to the Cymbaluk family s residence. More specifically, TAMA Power committed to: 188 a. instruct its EPC [engineering, procurement and construction contact] to follow the Illuminating Engineering Society of North America publication IES RP and IES RP b. follow the International Dark-Sky's Fixtures Seal Approval, for exterior lighting. c. follow the International Illuminating Engineering Society of North America's, Lighting Handbook, Tenth Edition. d. where applicable to follow the Model Lighting Ordinance Views of the Cymbaluks 358. The Cymbaluk family stated the proposed power plant would create adverse visual impacts on the family because the family s home quarter is adjacent to the project site. The family s concerns included the visibility of the project during the day as well as the impacts of light from the proposed power plant on the family s residence The Cymbaluks retained Benya Burnett Consultancy (Benya Burnett) to prepare an expert report on lighting impacts (the Benya report). Generally, light pollution occurs when one property illuminates another property. 189 The Benya report listed light pollution types including sky glow and over-illumination and the associated impacts including annoyance and disruption wildlife Pursuant to the Model Lighting Ordinance, there are lighting zones systems designed to select a proper light level. The Benya report recommended the use of Lighting Zone 2 for Sundance 7 and that the Model Lighting Ordinance be followed for all lighting on the project site, except for the areas the applicant can demonstrate require exemptions. 190 Specifically, it recommended that an investigation be conducted to determine whether Light Zone 1, a darker zone, could be used for portions of the proposed power plant Transcript, Volume 3, page 546, lines Exhibit 3183-X0317, TAMA Power Undertaking Responses 18 and Exhibit 3183-X0150, Light Pollution Concerns and Mitigation Strategies (TAMA), PDF page Exhibit 3183-X0150, Light Pollution Concerns and Mitigation Strategies (TAMA), PDF page Exhibit 3183-X0150, Light Pollution Concerns and Mitigation Strategies (TAMA), PDF page 9. Decision 3183-D (June 9, 2015) 57

64 361. The Benya report also recommended that exterior lighting be limited to certain colour temperatures to reduce artificial sky glow and potential photobiological impacts At the hearing, Mr. Benya stated that the parties were very close to agreeing on the set of lighting standards that would be used Views of the Gunn Métis 363. The Gunn Métis stated the approval of the project would create unacceptable levels of visual impacts in preferred harvesting areas Views of the Paul First Nation 364. The Paul First Nation is concerned that the project would block out the stars. It stated that the stars are a big part of its culture because they are used by its members to navigate Commission findings 365. The Commission has viewed the photomontages prepared by TAMA Power which were designed to provide a representation of the project to area residents and finds that this was a reasonable approach to take in the circumstances Although the assessment of visual impacts is subjective in nature, the Commission recognizes that the project would change the visual landscape in the nearby area. The project site is partially treed and TAMA Power has committed to landscaping and planting additional trees to the areas it disturbs. The Commission considers that the visual impacts of the project can be mitigated by the planting of trees and that no additional visual mitigation measures would be necessary should the project be approved The Commission accepts TAMA Power s commitment to implement the mitigation measures discussed above as recommended by Mr. Benya to reduce the potential visual impacts stemming from the lighting of the proposed power plant and finds that these mitigation measures addressed the concerns of the interveners, for the most part. The Commission expects TAMA Power to follow its commitment to comply with the applicable lighting standards including the Model Lighting Ordinance and to only make adjustments to the lighting standards to ensure the safe operation of the proposed power plant. 15 Siting 15.1 Views of the applicant 368. The proposed power plant would be located on a 69.1-hectare parcel in northwest and southwest quarters of Section 10, Township 52, Range 4, west of the Fifth Meridian. The project footprint, the area to be occupied by permanent facilities after construction, is approximately 9.8 hectares and is located in the northern portion of the project site. The project site is bounded Exhibit 3183-X0150, Light Pollution Concerns and Mitigation Strategies (TAMA), PDF page 9. Transcript, Volume 6, pages , lines 25, 1-3. Exhibit 3183-X0104, GML 55 Submission February 20, 2015, PDF page 7. Transcript, Volume 1, page 152, lines Decision 3183-D (June 9, 2015)

65 by the Sundance Road to the north, the Sundance industrial cooling pond to the west and the Cymbaluk family s land to the east The project site is currently not utilized for industrial purposes, and is therefore referred to as a greenfield site in the TAMA Power application. 196 TransAlta has owned the land that was chosen for the project site since The project site, the majority of which has historically been used for agricultural purposes, was previously leased to the Cymbaluk family for agricultural operations Site selection took into consideration the existence of TransAlta s operations in close proximity to the project, which would allow the proposed power plant to use the infrastructure and resources in place. The project site is far enough from those operations to avoid operational conflicts. TAMA Power specifically stated in this regard: Although the specific location of Sundance 7 is currently not utilized for industrial purposes, TAMA Power believes that the selected site has some important attributes of a brownfield site as it allows TAMA Power to take advantage of existing industrial infrastructure and resources in the immediate vicinity The project would utilize the existing Sundance industrial cooling pond, pump house and river intake structures, thereby reducing the environmental impact of a new facility. TransAlta has a pre-existing Water Act diversion licence with sufficient capacity to supply the project. The project site is also in close proximity to existing transmission infrastructure and has access to a nearby interconnection point The project site is currently zoned Resource Extraction by Parkland County. Power generation is consistent with this land-use designation and TAMA Power has received support from Parkland County for the project Prior to the Paul First Nation filed its statement of intent to participate in February 2015, TAMA Power was not aware that the Paul First Nation had any concerns relating to siting, and that there may be graves of Paul First Nation ancestors present on the project site. 198, TAMA Power indicated that if it were to encounter historical resources such as graves, it would follow TransAlta s current protocol to comply with the requirements of the Historical Resources Act. Under the existing framework, if gravesites or other significant artifacts are encountered during construction of a project, construction must be halted, the artifact must be documented, and the Paul First Nation must be contacted. In this regard, TAMA Power referred to a prior project of TransAlta, where it had found some buried remains and held a memorial at the direction of the Paul First Nation Exhibit TAMAPOWE-3183, Application, PDF page 1. Exhibit 3183-X0040, TAMA POWER IR Reponses to Cymbaluk Information Requests, PDF page 28. Transcript, Volume 1, page 119, line 2. Transcript, Volume 7, page 1181, lines Transcript, Volume 1, page 157, lines Decision 3183-D (June 9, 2015) 59

66 375. In response to similar concerns about the existence of potential burial grounds on the project site from the Gunn Métis, TAMA Power made the following commitment: TAMA commits to following its historical resources protocols and to ensure local stakeholders are engaged should historical resources be discovered at the project site during construction. Further, TAMA commits to notifying the Gunn Métis should a historical resource be discovered at the project site Views of the Cymbaluks 376. The Cymbaluk family s lands are legally described as the northeast quarter of Section 10, Township 52, Range 4, west of the Fifth Meridian and the southeast quarter of Section 10, Township 52, Range 4, west of the Fifth Meridian and are used for residential and agricultural purposes. The Cymbaluk family s home quarter is located at the southeast quarter of Section 10, Township 52, Range 4, west of the Fifth Meridian. Their lands are located adjacent to the project site The Cymbaluk family holds a right of first refusal for the west half of Section 10, Township 52, Range 4, west of the Fifth Meridian which includes the lands proposed for the project. Until recently, the family also held a lease interest in these lands The Cymbaluks submitted that they had strong concerns and reservations about the location of the project. They questioned whether there were other potential alternate sites available for the project that would be better alternatives than the currently applied-for project site. They also contended that TAMA Power had not demonstrated that it selected a site suitable for the project Views of the Gunn Métis 379. The Gunn Métis indicated that the project could potentially impact historical resources. And more specifically, that there is the potential for the presence of archaeological and historical resources on the project site. According to the Gunn Métis, the project site s location within its traditional territory warrants further investigation to ensure the identification of resources connected to the Lac St. Anne Métis community The Gunn Métis also made confidential submissions on the project site s location in relation to harvesting locations, submitting that these locations contain medicinal plants and vegetation that are important to its cultural practices Views of the Paul First Nation 381. The Paul First Nation submitted that the Wabamun area, including the project site, was protected by Treaty and that its traditional lands included the project site During the hearing, Mr. Melanson indicated that members were concerned about the potential for the project site to contain graves. The Commission heard that the Paul First Nation s historical practice is to bury someone in an unmarked grave at the location where the person Exhibit 3183-X0317, TAMA Power Undertaking Responses 18 and 19. Exhibit 3183-X0147, Submissions of David Cymbaluk, PDF pages 5-6. Transcript, Volume 5, page 982, lines Decision 3183-D (June 9, 2015)

67 died. Lloyd Saulteaux stated that, given this practice, he was not aware of how many gravesites there may be and that the gravesites could not be located. 204 At the hearing, Rudy Bird Yellowhead testified: There was gravesites in that area, but I'm not familiar with that because of age. I'm 58-year-old, and there's older -- elders older than me that might have knowledge in that area The members of the Paul First Nation allege that because their ancestors were present in the general area of the North Saskatchewan River, which includes the project site, the project site may contain unmarked graves of the Paul First Nation s ancestors The Paul First Nation s community is located approximately 800 metres from the project site. The Paul First Nation submitted that the project would be an expansion of existing development in the area and would have a compounding effect on the traditional land use of the Paul First Nation, specifically hunting, gathering, and its way of life. The elders of the Paul First Nation also testified that they are concerned with the holistic impact on their lives as a result of the siting of the project Commission findings 385. In considering the siting of a proposed electric generation facility, the Commission looks at the suitability of the project site; it does not assess the proposed site to determine whether it is the best site or assess whether other sites were considered. 207 Accordingly, TAMA Power has to demonstrate only that the project site is a suitable site This application will stand or fall on the merits of the project site because TAMA Power applied to the Commission with one single site for consideration The suitability of the project site in this instance must be considered taking into account a number of relevant factors, including: the potential impacts on local residents and stakeholders; the proximity to existing transmission facilities; the availability of water and fuel supplies; and the nature of the land use in the area Transcript, Volume 5, page 986, lines Transcript, Volume 5, page 874, lines Transcript, Volume 5, page 871, line 34. AUC Decision and EUB Decision This view is consistent with the Commission s view in Decision Decision : ENMAX Shepard Inc. Construct and Operate 800-MW Shepard Energy Enter, October 21, 2010 and the Board s view in Decision : EPCOR Generation Inc. and EPCOR Power Development Corporation 490-MW Coal-Fired Power Plant, Application , December 21, Decision 3183-D (June 9, 2015) 61

68 388. The Commission notes that, other than the Cymbaluk family, there were no residents located within 2,000 metres of the project site who voiced concerns The Commission accepts TAMA Power s evidence that site selection took into consideration the nature of current land use in the area, proximity to existing transmission lines, and the availability of fuel The evidence before the Commission is that the project site borders the Sundance industrial cooling pond, which would be used to obtain and dispose of water for the project. In addition, the land in the project area is designated as Resource Extraction by Parkland County, which supports the application. This designation allows for construction and operation of the proposed power plant. Moreover, TransAlta owns the project site, which is partially fenced along the Sundance 7 road Both the Paul First Nation and the Gunn Métis urged the Commission to consider the implication of potential gravesites that may be found on the project site. However, the Commission finds that there was no persuasive evidence submitted by these interveners in support of their respective submissions in this regard. Moreover, there is a framework in place to identify historical resources should any be found, and more importantly, a commitment by TAMA Power to follow existing protocols and notify the Paul First Nation and the Gunn Métis if gravesites are found during construction of the project. The Commission finds that the current framework that is in place to identify gravesites is sufficient in the circumstances The Commission took into consideration the confidential submissions and evidence on the project site in relation to the harvesting locations of the Gunn Métis. It also assessed the current access to these harvesting locations, and such access with the addition of the proposed power plant Having considered the evidence, the Commission finds that the location of the project site is suitable for the construction and operation of Sundance Corporate structure 16.1 Views of the applicant 394. is a general partnership comprised of two partners: TransAlta Canadian Gas Development LP (TCGDLP) and MEHC Canada Genco Limited Partnership (MEHCLP) The applicant explained that TCGDLP, the TransAlta partner in TAMA Power, is comprised of one limited partner, TransAlta Corporation, holding a per cent interest in TCGDLP and one general partner, Alberta Ltd., an Alberta corporation incorporated under the Business Corporations Act, holding a 0.01 per cent interest in TCGDLP Alberta Ltd. is a wholly-owned subsidiary of TransAlta Corporation. 209 Exhibit TAMAPOWE-3183, AUC-TAMA Power Decision 3183-D (June 9, 2015)

69 396. The applicant explained that MEHCLP, the MidAmerican partner in TAMA Power, is comprised of one limited partner, MidAmerican Canada Holdings Corporation, holding a per cent interest in MEHCLP and one general partner, MEHC Canada Genco CP Corporation, a British Columbia corporation (registered extra-provincially in Alberta), holding a 0.01 per cent interest in MEHCLP. MEHC Canada Genco GP Corporation is a wholly-owned subsidiary of MidAmerican Canada Holdings Corporation; MidAmerican Canada Holdings Corporation in turn is owned by MEHC Canada, LLC, a Delaware limited liability company, which is owned by Berkshire Hathaway Energy Company; and that Berkshire Hathaway Inc. holds a majority interest in Berkshire Hathaway Energy Company The applicant explained that TCGDLP is the managing partner of TAMA Power. The applicant stated that in its capacity as general partner of TAMA Power, Alberta Ltd. will enter into all agreements on behalf of TAMA Power. The applicant requested that all approvals, licences and permits for the project be issued in the name of Alberta Ltd., because this entity is the general partner of TCGDLP, the managing partner of TAMA Power Although TAMA Power is a different entity than Alberta Ltd., Alberta Ltd. will ultimately hold the permit and licence should the Commission approve the proposed power plant The Cymbaluks submitted that because Alberta Ltd. did not file the application it should be refiled by Alberta Ltd. Counsel for the applicant argued in this regard that there is nothing in the legislation that states that an applicant cannot request that the Commission issue the licence in the name of a related corporation in order to comply with the Hydro and Electric Energy Act. TAMA Power stated that Alberta Ltd. is a valid entity in compliance with the Hydro and Electric Energy Act, and is entitled to hold the licence approval and permit for the project Views of the Cymbaluks 400. The Cymbaluks expressed concerns with the applicant s corporate structure and its relation to TAMA Power. The Cymbaluks stated that the applicant s original application suggested that TAMA Power is the entity that has applied for permits and licences to construct and operate the project. 210 The Cymbaluks stated that according to TAMA Power s corporate structure, TAMA Power is not the entity that has applied for the permit and licence, and that such entity is in reality Alberta Ltd., a general partner, holding 0.01 per cent interest in the limited partnership on the TransAlta side The Cymbaluks referred to Section 11 of the Hydro and Electric Energy Act which states No person shall construct or operate a power plant unless the Commission, by order, has approved the construction and operation of the power plant. 211 The definition of persons is enumerated in Section 28 of the Interpretation Act. TAMA Power, the partnership that filed the application, is not a legal person permitted to hold an approval for a power plant pursuant to Section 11 of the Hydro and Electric Energy Transcript, Volume 7, pages , lines 19-25, 1. Transcript, Volume 7, page 1334, lines, Decision 3183-D (June 9, 2015) 63

70 402. The Cymbaluks requested that the Commission direct TAMA Power to reapply in the name of Alberta Ltd. In this new application, TAMA Power should clarify its corporate structure to the Commission and other interested parties. 212 It was the Cymbaluks view that TAMA Power must provide compelling reasons for why [the] proposed corporate arrangement should be approved or if the public interest would be adequately protected Commission findings 403. To be eligible to receive a permit or licence from the Commission, an applicant must meet the requirements of the Hydro and Electric Energy Act. Section 23 of that act specifies the types of entities that may receive approval from the Commission and that one permissible form of corporate entity is to be registered, incorporated or continued under the Alberta Business Corporations Act. Applicants are not required to meet any other legislative requirements to be eligible to obtain a licence from the Commission In the addendum to Decision , 449 the AUC s predecessor, the Alberta Energy and Utilities Board, made the following remarks regarding applicants corporate structures: In the Board s view, proponents of energy projects may use legitimate and legally recognized forms of business organization in order to advance their commercial interests. Corporate configurations such as limited partnerships, limited companies, and joint ventures are common examples of business organization and, in the absence of compelling reasons to reject such arrangements, are generally acceptable to the Board. The existence of limited liability for limited partners, for example, will not of itself be sufficient reason to deny such an applicant s project. A similar restriction on liability is afforded shareholders of a limited company The corporate relationship between Alberta Ltd., Berkshire Hathaway Energy Company and TransAlta is a commercial matter. In the Commission s view, the applicant is entitled to arrange its corporate structure and affairs in a manner that most effectively advances its business interests, as long as it complies with Section 23 of the Hydro and Electric Energy Act. In this case, should the Commission approve the project, the approval would be issued to Alberta Ltd. which is a corporation that meets the requirements of Section 23 of the Hydro and Electric Energy Act The Commission recognizes that in the initial application there was a question about which entity was applying to construct and operate the proposed power plant. TAMA Power s responses to the Commission s information requests clarified that, should the project be approved, the entity that would ultimately hold the approval would be Alberta Ltd. Notably, this information was provided prior to the issuance of the notice of application for this project Transcript, Volume 7, page 1335, lines Transcript, Volume 7, pages 1336, lines 1-3. Decision , TrueNorth Energy Corporation, Applications and October 30, 2002, page 3. See also Decision , AES Calgary, ULC, 525-MW Natural Gas - Fired Power Plant, Application , December Decision 3183-D (June 9, 2015)

71 407. The Commission is satisfied, based on the evidence tendered by the applicant, that the entity applying to hold the approval to construct and operate the proposed power plant, namely Alberta Ltd., was incorporated and is currently registered under the Business Corporations Act, and is therefore eligible to receive an approval for a power plant from the Commission. 17 Conclusion 408. Earlier in this decision, the Commission explained the legislative framework in place for the consideration and approval of power plants in Alberta. In this section, the Commission applies the legislative framework and decides, in accordance with Section 17 of the Alberta Utilities Commission Act, whether approval of the project is in the public interest having regard to its social and economic effects and its effects on the environment The Commission finds that the construction and operation of the project will not affect the health and safety of area residents The Commission is satisfied that the applicant s estimated daytime and nighttime predicted cumulative sound levels for the project meet the requirements of Rule 012. The Commission concludes that compliance with daytime and nighttime permissible sound levels for the project will ensure that noise is acceptable at the nearest residence. The Commission has imposed a condition on its approval of the project to ensure that the project strictly complies with Rule 012 and its permissible sound levels The Commission is of the view that the Cymbaluk family s noise concerns may be partially alleviated by adherence to the permissible sound level at their residence and by including both the overall noise level at their residence and the noise contribution from the proposed power plant in the comprehensive sound level assessment The Commission finds that air modelling conducted for the project, with the exception of the existing PM 2.5 exceedances and the possible CO exceedance, meets the Alberta Ambient Air Quality Objectives and other guidelines. TAMA Power has indicated that TransAlta currently intends to commence the decommissioning of coal-fired power plants in the area and, in so doing, improve air quality in the region. The Commission concludes that compliance with these objectives will protect nearby landowners and aboriginal groups from any air emission-related health effects In addition, the Commission is satisfied that any safety concerns about the project and its inclusion of ammonia can be effectively mitigated. In making this finding the Commission observes that TransAlta and other power plant operators use ammonia without incident in their operations in Alberta and throughout the world and also that there are safety precautions as recommended by Golder to improve the safety of ammonia transportation and storage In light of the applicant s commitment to follow the safety precautions recommended by Golder, the Commission is of the view that the project s construction and operation will not create a material safety risk to members of the public. Decision 3183-D (June 9, 2015) 65

72 415. The Commission accepts TAMA Power s evidence that the project will create approximately 500 jobs during construction and another 35 full-time positions during operations. 215 The interveners did not challenge this evidence Further, the Commission heard that the applicant would hire local employees and use local services for construction and operation of the project, and that its approval would result in increased tax contributions for Parkland County. Based on this evidence, the Commission finds that approval of the project would provide some economic benefit to the community The Gunn Métis asserted that one of the negative impacts of the project would be a decrease in ethnobotanically important plants. The Commission determined earlier that approval of the project would have little, if any, negative impact on ethnobotanically important plants, with the exception of those plants that may be located within the project site. The Commission recognizes that Golder s field work revealed the presence of some ethnobotanically important plants on the project site. However, given the mitigation measures such as the wetland compensation, taking into account that the project site is on private land owned by TransAlta and that it has been used for agricultural operations for many years, the Commission is of the view that the project s construction and operation would not create a material adverse impact on ethnobotanically important plants to the Gunn Métis Regarding the environmental effects of the project, an important consideration for the Commission was the applicant s compliance with various ESRD guidelines applicable to the project. As stated previously, the Commission regards compliance with the existing regulatory requirements administered by other public or government departments or agencies to be an important element when deciding if potential adverse impacts are acceptable. Based on the evidence submitted by TAMA Power, the Commission finds that the project, if constructed, would have minimal environmental impacts Based on the foregoing, the Commission finds that the proposed power plant is in the public interest. 215 Transcript, Volume 7, page 1141, lines Decision 3183-D (June 9, 2015)

73 18 Decision 420. Pursuant to Section 11 of the Hydro and Electric Energy Act, the Commission approves the application and grants TAMA Power the approval set out in Appendix 1 Sundance 7 Power Plant Approval 3183-D June 9, 2015 (Appendix 1 will be distributed separately). Dated on June 9, Alberta Utilities Commission (original signed by) Tudor Beattie, QC Panel Chair (original signed by) Anne Michaud Commission Member (original signed by) Kate Coolidge Acting Commission Member Decision 3183-D (June 9, 2015) 67

74 Appendix A Registered parties with standing (return to text) Name of organization (abbreviation) counsel or representative Lois Miller David, Ferne and Philip Cymbaluk Richard Secord Gunn Métis Local 55 Jenny Biem Paul First Nation Joel Melanson Neal Barnes 68 Decision 3183-D (June 9, 2015)

75 Appendix B Oral hearing registered appearances Name of organization (abbreviation) counsel or representative G. Fitch M. Barbero Gunn Métis Local 55 J. Biem C. Israel Cymbaluks R. Secord Y. Cheng Paul First Nation J. Melanson Witnesses D. Davies C. Madland R. Robinson J. Wilkinson K. Yasinski M. Mackay C. McNeil V. Young B. Novak C. De La Mare A. Sanregret T. Friedel M. Crossen L. Moncrieff M. Cross P. Lorocque A. Read K. Kubiski J. Vipond D. Cymbaluk F. Cymbaluk P. Cymbaluk T. Cymbaluk Breymann T. Wiles W. Butler J. Farquharson J. Benya N. Barnes J. Melanson R. Bird Yellowhead L. Saulteaux G. Saulteaux E. Adams Alberta Utilities Commission Commission Panel Tudor Beattie, QC, Panel Chair Anne Michaud, Commission Member Kate Coolidge, Acting Commission Member Commission Staff S. Sinclair (Commission counsel) G. Bentivegna (Commission counsel) V. Choy M. Kavanagh J. Davis A. Ayri A. Wilson G. Scotton Decision 3183-D (June 9, 2015) 69

76 Appendix C Standing ruling (return to text) Appendix C.pdf (consists of 9 pages) 70 Decision 3183-D (June 9, 2015)

77 Appendix D Standing ruling for the Paul First Nation (return to text) Appendix D.pdf (consists of 3 pages) Decision 3183-D (June 9, 2015) 71

78 Appendix E Letter to parties regarding public hearing (return to text) Appendix E.pdf (consists of 4 pages) 72 Decision 3183-D (June 9, 2015)

79 Appendix F Ruling on confidentiality request by the Gunn Métis Local 55 (return to text) Appendix F.pdf (consists of 4 pages) Decision 3183-D (June 9, 2015) 73

80 Appendix G Confidentiality ruling for the Gunn Métis will-say statements (return to text) Appendix G.pdf (consists of 5 pages) 74 Decision 3183-D (June 9, 2015)

81 Appendix H Ruling on Cymbaluk request for further and better information responses (return to text) Appendix H.pdf (consists of 6 pages) Decision 3183-D (June 9, 2015) 75

82 Appendix I AUC process to consider letter (return to text) Appendix I.pdf (consists of 2 pages) 76 Decision 3183-D (June 9, 2015)

83 Appendix J TAMA Power list of commitments (return to text) Appendix J.pdf (consists of 2 pages) Decision 3183-D (June 9, 2015) 77

84 December 11, 2014 To: Interested Parties Sundance 7 Project Application No Proceeding No Ruling on standing 1 Overview and nature of the issue to be decided 1. (TAMA Power or the applicant) filed an application with the Alberta Utilities Commission (AUC or the Commission) to construct and operate the Sundance 7 power plant (the proposed Sundance 7 power plant or the proposed project). The proposed Sundance 7 power plant is an 856-megawatt (MW) natural gas-fired power plant. The project is proposed to be located within Section 10, Township 52, Range 4, and west of the Fifth Meridian, on private lands approximately seven kilometres southwest of Wabamun, Alberta. 2. On September 10, 2014, the Commission issued a notice of application for Proceeding No The deadline for submissions was October 16, The Commission received 10 objections, and one letter of support in response to its notice. 3. The Commission must now decide if the persons who filed a submission stating concerns about, or objections to, the proposed Sundance 7 power plant application have demonstrated that they have rights that may be directly and adversely affected by the Commission s decision on the application. A person who demonstrates the potential for direct and adverse effect is said to have standing. 4. The Commission asked me to write to you to provide its ruling and reasons for its ruling on the standing of those persons who filed submissions on the record of Proceeding No Objections and statements of intent to participate 5. The Commission received objections to the proposed project from the following individuals represented by Mr. Richard Secord of Ackroyd LLP: Ferne Cymbaluk, Phillip Cymbaluk and David Cymbaluk. 6. These persons indicated that they own and occupy land within 800 metres of the site of the proposed Sundance 7 power plant. In their respective statements of intent to participate, these persons expressed a number of concerns about the proposed project, including: location of the proposed project, impacts to health and safety, visual impacts, environmental impacts,

85 The Alberta Utilities Commission December 11, 2014 Page 2 of 9 operational impacts, economic effects, land value impacts, as well as traffic and noise. These persons also raised concerns about the applicant s consultation program and allegations about shortcomings in the application. 7. On June 18, 2014, the Commission received a submission from Tammi Cymbaluk Breymann who indicated that she owns property located approximately three kilometres from the site of the proposed Sundance 7 power plant. In her statement of intent to participate, Ms. Cymbaluk Breymann stated that the proposed project, in combination with existing coal mines, would have adverse effects and specifically mentioned noise, traffic, land devaluation, and environmental impacts such as dust, air emissions and water quality. 8. On October 17, 2014, the Commission received a statement of intent to participate from the Summer Village of Kapasiwin (Kapasiwin) located at the end of Lake Wabamun. The concerns expressed included traffic, noise, air emissions, and the potential impact of the proposed project on Lake Wabamun and its watershed. 9. The Commission received statements of intent to participate from Linda Duncan, Donna Thomas, and Barbara Henderson who all indicated that they own or reside seasonally on properties located in Kapasiwin, which is approximately six to seven kilometres from the site of the proposed Sundance 7 power plant (collectively, the Kapasiwin residents). In their respective submissions, these parties indicated that they are recreational users of Lake Wabamun. Their concerns include noise, air emissions, cumulative effects, and the proposed project s impacts on Lake Wabamun, including its water levels, fish and wildlife. 10. On October 18, 2014, the AUC received an from the Mewassin Community Council indicating that it intended to apply for intervener status in this application. The was uploaded on the record of Proceeding No on October 28, The Mewassin Community Council s statement of intent to participate indicated that its members reside in Keephills, Duffield, Cavel, Genesee, Stony Plain and Edmonton. The concerns expressed related to increased air emissions arising from the construction and operation of the proposed Sundance 7 power plant. 11. On October 16, 2014, the Samson Cree Nation (Samson Cree) filed a statement of intent to participate on the record of Proceeding No The Samson Cree requested that the Commission assess the potential adverse effects, including cumulative impacts of the proposed Sundance 7 power plant on the Samson Cree s aboriginal and treaty rights. The Samson Cree stated that the application, as filed, did not meet the requirements of AUC Rule 007: Applications for Power Plants, Substations, Transmission Lines and Industrial System Designations as it had not been adequately consulted. The Samson Cree submitted that the proposed project is located within its traditional territory and that Lake Wabamun is a place of cultural and spiritual significance. It also submitted that Treaty No. 6 protects its right to hunt, trap and fish throughout all of its territory, including the Wabamun area. Further, the Samson Cree indicated that the application does not adequately address environmental impacts. 12. On October 17, 2014, the Alexis Nakota Sioux Nation (Alexis Nakota Sioux) submitted a statement of intent to participate with respect to the proposed project application. The Alexis

86 The Alberta Utilities Commission December 11, 2014 Page 3 of 9 Nakota Sioux submitted that its members continue to use the area surrounding the proposed Sundance 7 power plant in order to exercise aboriginal and treaty rights, which is located approximately 18 kilometres from its main community. It stated that there are a number of traditional use sites within the area of the proposed Sundance 7 power plant including hunting areas, fishing areas, plant harvesting sites and ceremonial sites and that the proposed Sundance 7 power plant would directly and adversely affect its members use of these sites. 13. The Alexis Nakota Sioux submitted, among other things, that the construction of a new pump house to withdraw water resources necessary for the proposed project would disturb the wildlife habitat and migratory patterns by increasing access, noise and activity that would cause animals to avoid the area which, in turn, would impact hunting. It added that construction and operation of the proposed project would be disruptive to wildlife habitats and would drive game elsewhere. 14. Lastly, the Alexis Nakota Sioux submitted that it had not been consulted. 15. The Gunn Métis submitted a statement of intent to participate on October 17, 2014 that explained that the proposed Sundance 7 power plant is within its deemed territory. The Gunn Métis stated that it had not been consulted by the applicant and that the application, as filed, does not consider the Gunn Métis traditional knowledge, use and aboriginal rights in the area of the proposed Sundance 7 power plant. It added that according to its traditional knowledge, fisheries would be impacted because the thermal balance on Lake Wabamun would change as a result of the cooling pond s impacts on water temperatures. According to the Gunn Métis, warm water will prevent Lake Wabamun from freezing in future winters. The Gunn Métis indicated that there are harvesting locations both in, and immediately adjacent to, the proposed Sundance 7 power plant. 16. In support of its statement of intent to participate, the Gunn Métis filed two maps which were granted confidential status in the Commission s October 29, 2014 ruling. These maps show the exact locations of aboriginal harvesting sites, which can be found within two kilometres of the site of the proposed Sundance 7 power plant. 17. On October 16, 2014, the Commission received a letter of support from the Village of Wabamun. The Village of Wabamun stated that it supports the proposed Sundance 7 power plant because it would create economic opportunities. It also stated that the applicant has been a responsible corporate citizen, caring for the environment and that the generation is needed for the province. 18. In four separate letters dated November 7, 2014, the applicant submitted comments on the standing of each of the parties who had filed statements of intent to participate on the record of the proceeding. 19. With respect to the Gunn Métis, the Samson Cree and the Alexis Nakota Sioux (collectively, the aboriginal groups), the applicant submitted that none of these parties has met the directly and adversely affected test for standing established pursuant to the Alberta Utilities Commission Act. Specifically, the applicant submitted that none of these aboriginal groups has

87 The Alberta Utilities Commission December 11, 2014 Page 4 of 9 established, on a factual basis, the potential for direct and adverse effect and that, among other things, there is no Crown land within 2,000 metres of the proposed project site other than a portion of the Paul First Nation Reserve; hence, it is unclear where these parties could exercise their aboriginal and treaty rights within 2,000 metres of the site of the proposed Sundance 7 power plant. 20. Regarding each of the aboriginal groups submissions that the proposed Sundance 7 power plant will be located on their traditional lands, the applicant stated that the aboriginal groups members ability to use their traditional territory would be unaffected by the construction and operation of the proposed Sundance 7 power plant. The applicant noted that the proposed Sundance 7 power plant would be located entirely on its privately-owned land, and consequently, no public or Crown land would be disturbed. The applicant further submitted that there are minimal expected impacts on wildlife and water use from the proposed Sundance 7 power plant s construction and operation. 21. The applicant also filed a confidential response to the aboriginal harvesting locations identified by the Gunn Métis. 22. In its November 7, 2014 letters, the applicant indicated that it did not object to the Cymbaluk family (Philip, Ferne and David) being granted standing. 23. However, with respect to the remaining parties who filed statements of intent to participate, the applicant submitted that these parties have not demonstrated the potential for direct and adverse effect because the land they own and or reside on is far enough away from the site of the proposed Sundance 7 power plant that they will experience no direct effects. 24. By letter dated November 10, 2014, the Commission allowed interested parties to reply to the applicant s comments on their standing. 25. The Commission received a submission from the Gunn Metis on November 28, 2014, which provided further details on the rights exercised within two kilometres of the site of the proposed Sundance 7 power plant. 26. The Commission also received a submission from Kapasiwin, which identified the legal rights it was asserting, including the right of its ratepayers and residents to use and enjoy lands set aside for recreational purposes free of air and noise emissions that may adversely affect their health or constitute a nuisance. Kapasiwin indicated that it was concerned with fog, pollution, noise, including low frequency noise, emissions and related health effects. The Commission also received similar submissions from the Kapasiwin residents, all of whom adopted Kapasiwin s submissions and provided further information. In particular, Ms. Duncan indicated that she was concerned with emissions and stated that her property falls directly within the zone of deposition of pollutants from the proposed Sundance 7 power plant.

88 The Alberta Utilities Commission December 11, 2014 Page 5 of 9 3 Commission findings 3.1 How the Commission determines standing 27. Standing before the Commission is determined by subsection 9(2) of the Alberta Utilities Commission Act which states: (2) If it appears to the Commission that its decision or order on an application may directly and adversely affect the rights of a person, the Commission shall (a) give notice of the application in accordance with the Commission rules, (b) give the person a reasonable opportunity of learning the facts bearing on the application as presented to the Commission by the applicant and other parties to the application, and (c) hold a hearing. 28. In Cheyne v. Alberta (Utilities Commission), the Alberta Court of Appeal characterized Section 9(2) as the equivalent of Section 26(2) of the Energy Resources Conservation Act and confirmed that there is a two-part test for standing. First, a person must demonstrate that the right he or she is asserting is recognized by law. Second, a person must provide some information that shows that the Commission s decision on the application may directly and adversely affect his or her rights. The first part of the test is legal; the second part of the test is factual. For the factual part of the test, the Alberta Court of Appeal has stated that some degree of location and connection between the work proposed and the right asserted is reasonable In Sawyer v. Alberta (Energy and Utilities Board) the Alberta Court of Appeal commented further on the factual component of the standing test and stated that in considering the location or connection, the Board is entitled to look at factors such as residence, the presence or absence of other wells in the area, and the frequency and duration of the applicant s use of the area near the proposed site The Commission assesses the potential for direct and adverse effect on a case-by-case basis, having regard for the specific circumstances of each proposed project application and each application for standing. The Commission considers that the expression of general or broad concerns about a proposed project, without some link or connection to the demonstrated or anticipated characteristics of a proposed project will generally be an insufficient basis for establishing the potential for a direct and adverse effect. In the Commission s view, this is the very mischief that the Alberta Court of Appeal identified when it opined that some degree of location or connection between the work proposed and the right asserted is a necessary ingredient for standing. 1 2 Dene Tha First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68 at para ABCA 297 at para 16.

89 The Alberta Utilities Commission December 11, 2014 Page 6 of If the Commission finds that a person has standing pursuant to Section 9(2) of the Alberta Utilities Commission Act it must hold a hearing to consider the person s concerns about the subject application. Further, persons with standing have the right to fully participate in the hearing. The Commission considers this to include the right to file evidence in support of their position, the right to question or cross-examine the applicant(s) on its evidence and the right to make argument. 32. In the past, the Commission has allowed persons without standing the opportunity to provide a brief statement to the Commission that describes their views on the application. In exceptional circumstances the Commission may also allow parties without standing to fully participate in a hearing by filing evidence, cross-examining the applicant and giving argument. However, where all persons with standing withdraw their objections, the Commission may cancel the hearing even if parties without standing have expressed a desire to participate in that hearing. 3.2 Standing Ruling 33. The Commission is satisfied that Phillip, David, and Ferne Cymbaluk have demonstrated that the proposed project application, as filed, has the potential to directly and adversely affect their rights because they own or reside on lands within 800 metres of the proposed Sundance 7 power plant and are concerned about consultation, health and safety, visual impacts, environmental impacts, operational impacts, land value impacts, as well as traffic and noise which relate to the proposed project. In making its determination on standing, an important consideration for the Commission is these parties proximity to the site of the proposed Sundance 7 power plant. Given the scope of the proposed project and the size of the generator, the Commission finds that there is a sufficient degree of connection between the ownership and occupation rights asserted by these parties and the proposed project-associated concerns that they raised in their objections. As a result, the Commission grants Phillip, David, and Ferne Cymbaluk standing to participate in a hearing to consider the proposed Sundance 7 power plant application. 34. Ms. Cymbaluk Breymann resides approximately three kilometres from the proposed project and did not explain how her rights may be directly and adversely affected by the Commission s decision on the application given the proposed project s distance from the land she owns. 35. Further, given the general nature of her concerns, the Commission finds that Ms. Cymbaluk Breymann has not established a sufficient degree of connection between the project and her rights or interests. Consequently, standing to Ms. Cymbaluk Breymann is denied. 36. Because the Kapasiwin submissions were incorporated by reference into the submissions of the Kapasiwin residents, these parties submissions were considered jointly. 37. Leaving aside the issue of whether each of these parties has a right to use Lake Wabamun for recreational purposes, it was incumbent upon each party to establish a connection between

90 The Alberta Utilities Commission December 11, 2014 Page 7 of 9 the concerns expressed and the anticipated effects of the proposed Sundance 7 power plant. In the Commission s view, general concerns including concerns about Lake Wabamun and about cumulative effects provide an insufficient basis for standing, especially given the distance between the proposed project and these parties seasonal residences. 38. Some of the proposed Sundance 7 power plant s components are located adjacent to Lake Wabamun and the proposed project would utilize water from the North Saskatchewan River under an existing water license. Consequently, for the purposes of this ruling, the Commission is prepared to assume that Kapasiwin and the Kapasiwin residents have a valid interest in Lake Wabamun. Upon review of the application, the Commission observes that no additional diversion of water license is required beyond the volumes permitted under the applicant s existing license and that the proposed Sundance 7 power plant would discharge waste water, not into Lake Wabamun, but into a cooling pond. Given the distance of these parties from the proposed project, and taking into account the specific impacts identified, the Commission is not satisfied that these parties have demonstrated that the proposed project s potential impact on Lake Wabamun has the potential to create direct and adverse impact on these parties rights, interests, or use of Lake Wabamun. 39. The health risks expressed by Kapasiwin and the Kapasiwin residents were very general in nature. Taking into account the nature of, and the technology used for, the proposed Sundance 7 power plant, and given the incremental nature of the air quality impacts, and Kapasiwin and Kapasiwin residents distances from the proposed Sundance 7 power plant, the Commission finds that these parties have not demonstrated that the proposed project has the potential to result in air quality impacts that may directly and adversely affect their health. 40. The applicant has predicted that the cumulative sound level at the nearest residences will be increased. However, the application states that the proposed Sundance 7 power plant is predicted to comply with the daytime and nighttime permissible sound levels at the nearest residences, as required by AUC Rule 012: Noise Control. The nearest lands for which Kapasiwin and the Kapasiwin residents have identified an interest in is more than six kilometres from the site of the proposed Sundance 7 power plant; therefore, the Commission considers that Kapasiwin and the Kapasiwin residents have not demonstrated that any noise associated with the proposed project may directly and adversely affect the rights asserted by them. 41. According to Kapasiwin, the AESO has been advised by Focus Equities Ltd. and the Paul First Nation of their intention to construct and operate a 1000 MW combined cycle, gas-fired power plant on the Paul First Nation Reserve, which lies adjacent to Kapasiwin and Lake Wabamun. Kapasiwin submitted that it does not appear that the potential noise and air emissions from that project, referred to as the Great Spirit Power Project, have been considered in the application for approval of the Sundance 7 power plant. The Commission considers that, currently, no application for such project has been filed with the Commission and, as such, any cumulative effects of that proposed power plant cannot form the basis of an application for standing on the proposed Sundance 7 power plant application. 42. Accordingly, given the distance between their locations and the proposed project, and considering the potential impacts asserted, the Commission finds that Kapasiwin and the

91 The Alberta Utilities Commission December 11, 2014 Page 8 of 9 Kapasiwin residents have not demonstrated that the Commission s decision on the application may directly and adversely affect their rights and interests. As a result, standing is denied. 43. The Commission considers, for the reasons that follow, that the Mewassin Community Council does not have standing to participate in the proceeding. Although the Mewassin Community Council described in its submission the issues that it wishes the Commission to address in this proceeding, it did not describe the rights it is asserting or how those rights could be affected by the Commission s decision on the application. The Mewassin Community Council submitted that its members reside in the Keephills, Duffield, Carvel, Genesee, Stony Plain and Edmonton areas, but did not indicate its members exact locations and proximity to the site of the proposed Sundance 7 power plant. The closest municipality, Genesee, is at least eight kilometres away from the proposed project site. Further, the Mewassin Community Council did not identify its members or how its members interests or rights may be impacted by the Commission s decision on the application. The Commission finds that the Mewassin Community Council has not demonstrated that its members have rights or interests that may be directly and adversely affected by the Commission s decision on the application. 44. The Gunn Métis asserted that it enjoys aboriginal rights associated with the ability to use lands and water in the area of the proposed Sundance 7 power plant for traditional purposes. For the purposes of this ruling, the Commission is prepared to assume, without deciding, that the Gunn Métis is entitled to exercise site-specific aboriginal rights in the locations that it asserted in its submissions. 45. Some of the concerns expressed by the Gunn Métis were specific to certain areas identified in two confidential maps that its members use for traditional purposes. Other concerns expressed by the Gunn Métis related to traditional activities at Lake Wabamun. The Gunn Métis also expressed concerns that were more general in nature and related to the proposed Sundance 7 power plant s potential impact on area land, water, and air that it claimed would impact the exercise of its members aboriginal rights. 46. The Commission finds, for the reasons that follow, that the Gunn Métis have demonstrated that its members have rights that may be directly and adversely affected by the Commission s decision on the application. Without disclosing the specific areas identified by the confidential material, the Commission, in making its ruling, considered the proposed Sundance 7 power plant s location in relation to the areas identified by the Gunn Métis as important for carrying out traditional activities. 47. The Commission is prepared to assume, without deciding, that both the Samson Cree and the Alexis Nakota Sioux are entitled to exercise site-specific aboriginal rights in the locations that they have asserted in their respective submissions. The Commission therefore finds, in relation to the first part of the standing test, that both the Samson Cree and the Alexis Nakota Sioux have legal rights which may be directly and adversely affected by the proposed project. 48. The concerns expressed by both the Samson Cree and the Alexis Nakota Sioux with respect to air emissions were broad and generic. Accordingly, the Commission finds that the

92 The Alberta Utilities Commission December 11, 2014 Page 9 of 9 Samson Cree and the Alexis Nakota Sioux have not established how their aboriginal and treaty rights may be directly and adversely affected by the proposed Sundance 7 power plant s contribution to air emissions. Furthermore, given the location of the pump house and the other proposed project components, the Samson Cree and the Alexis Nakota Sioux have not demonstrated the manner in which the proposed Sundance 7 power plant would impact Lake Wabamun and their use of Lake Wabamun. 49. The Samson Cree and the Alexis Nakota Sioux submitted that if combined with other industrial development in the region, the proposed project would make it more difficult for their members to use land in the proposed project area to exercise their aboriginal and treaty rights, including harvesting, hunting and fishing. However, in light of the application, the Commission finds that the concerns they expressed are general in nature and that they have not established a causal connection between the proposed Sundance 7 power plant that is sufficient to demonstrate the potential for direct and adverse effect. As a result, the Commission denies standing to the Samson Cree and the Alexis Nakota Sioux in this proceeding. 50. While Kapasiwin, Ms. Cymbaluk Breymann, Ms. Duncan, Ms. Thomas, Ms. Henderson, the Samson Cree, the Alexis Nakota Sioux, and the Mewassin Community Council do not have standing, they nonetheless have two options for participation in the proposed project proceeding. First, any of these parties may join a person that has standing and participate as a group. Second, these parties may provide a brief submission at the hearing to express their views on the proposed project. 3.3 Conclusion 51. As a result of the Commission granting standing to Phillip, David, and Ferne Cymbaluk and to the Gunn Métis, as specified above, a notice of hearing will be issued shortly. 52. If you have any questions, please feel free to contact the undersigned at or shanelle.sinclair@auc.ab.ca. Yours truly, Shanelle Sinclair Commission Counsel

93 February 27, 2015 To: Interested Parties Sundance 7 Project Proceeding: 3183 Application: Standing Ruling for the Paul First Nation 1. In this ruling, the Alberta Utilities Commission must decide if the Paul First Nation has rights that may be directly and adversely affected by the Commission s decision on the application. A person who demonstrates the potential for direct and adverse effect is said to have standing. 2. The Commission has ruled on this motion and has directed me to write to interested parties to advise them of its ruling and its reasons. Background 3. (TAMA Power or the applicant) filed an application with the Commission,on behalf of Alberta Ltd., to construct and operate the Sundance 7 power plant (the proposed Sundance 7 power plant or the proposed project). The proposed Sundance 7 power plant is an 856-megawatt natural gas-fired power plant. 4. On September 10, 2014, the Commission issued a notice of application for Proceeding The deadline for submissions was October 16, On February 20, 2015, the Paul First Nation filed a submission with the AUC requesting standing in the above-referenced proceeding. 6. The Paul First Nation indicated that the proposed project is within its traditional territory and that its reserve is within 800 metres of the proposed project site. The Paul First Nation submitted that it was concerned with, among other things, cumulative impacts to its aboriginal and treaty rights from increased traffic, noise and activity. The Paul First Nation stated that its members conducted hunting, trapping, gathering and other traditional activities on its lands. The Paul First Nation also requested more time to hire a third party assessment of the compounding impact of the proposed project on its traditional lands. 7. By letter dated February 23, 2015 the Commission informed interested parties that it would consider the Paul First Nation s request for standing, notwithstanding that the deadline to file statements of intent to participate had past. 8. By letters dated February 23 and February 24, 2015 TAMA Power filed a response to the Paul First Nation s statement of intent to participate. TAMA Power indicated that it was concerned with the filing of a statement of intent to participate at this stage in the process

94 The Alberta Utilities Commission February 27, 2015 Page 2 schedule. TAMA Power stated that it had consulted extensively with the Paul First Nation about the proposed project and that the Paul First Nation was aware that the Commission had established a proceeding to consider the application. TAMA Power submitted that the Paul First Nation s request for time to assess the project should be rejected, but indicated that it did not object to the Paul First Nation having standing in the above-referenced proceeding as long as the current process schedule would be maintained. Commission findings How the Commission determines standing 9. Standing before the Commission is determined by subsection 9(2) of the Alberta Utilities Commission Act which states: (2) If it appears to the Commission that its decision or order on an application may directly and adversely affect the rights of a person, the Commission shall (a) give notice of the application in accordance with the Commission rules, (b) give the person a reasonable opportunity of learning the facts bearing on the application as presented to the Commission by the applicant and other parties to the application, and (c) hold a hearing. 10. In Cheyne v. Alberta (Utilities Commission), the Alberta Court of Appeal characterized Section 9(2) as the equivalent of Section 26(2) of the Energy Resources Conservation Act and confirmed that there is a two-part test for standing. First, a person must demonstrate that the right he or she is asserting is recognized by law. Second, a person must provide some information that shows that the Commission s decision on the application may directly and adversely affect his or her rights. The first part of the test is legal; the second part of the test is factual. For the factual part of the test, the Alberta Court of Appeal has stated that some degree of location and connection between the work proposed and the right asserted is reasonable In Sawyer v. Alberta (Energy and Utilities Board) the Alberta Court of Appeal commented further on the factual component of the standing test and stated that in considering the location or connection, the Board is entitled to look at factors such as residence, the presence or absence of other wells in the area, and the frequency and duration of the applicant s use of the area near the proposed site The Commission assesses the potential for direct and adverse effect on a case-by-case basis, having regard for the specific circumstances of each proposed project application and each application for standing. The Commission considers that the expression of general or broad concerns about a proposed project, without some link or connection to the demonstrated or anticipated characteristics of a proposed project, will generally be an insufficient basis for 1 2 Dene Tha First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68 at para ABCA 297 at para 16.

95 The Alberta Utilities Commission February 27, 2015 Page 3 establishing the potential for a direct and adverse effect. In the Commission s view, this is the very mischief that the Alberta Court of Appeal identified when it opined that some degree of location or connection between the work proposed and the right asserted is a necessary ingredient for standing. 13. If the Commission finds that a person has standing pursuant to Section 9(2) of the Alberta Utilities Commission Act it must hold a hearing to consider the person s concerns about the subject application. Further, persons with standing have the right to fully participate in the hearing. The Commission considers this to include the right to file evidence in support of their position, the right to question or cross-examine the applicant(s) on its evidence and the right to make argument. Standing ruling 14. For the reasons that follow, the Commission is satisfied that the Paul First Nation has standing in Proceeding For the purposes of this ruling, the Commission is prepared to assume, without deciding, that the Paul First Nation has the rights it has asserted in its statement of intent to participate. The Commission considers that the Paul First Nation was concerned with cumulative impacts including increased traffic, noise and activity which relate to the proposed project. In the Commission s view based on the nature of the proposed project and associated impacts, the assertion of a land-based claim within 800 meters of the proposed Sundance 7 power plant site is sufficient to support an application for standing in this instance. An important consideration for the Commission was the Paul First Nation reserve s proximity to the site of the proposed Sundance 7 power plant. 16. The Commission notes the applicant s objection to an extension of the process schedule. However, given the stage of the proceeding and the date of this ruling, the Commission will allow the Paul First Nation to file its evidence by March 6, The applicant shall also be afforded a one week extension to file information requests to the Paul First Nation, if required. In the Commission s view, this amendment to the process schedule will not unduly prejudice any party. In any event, the Commission expects the Paul First Nation to follow the remaining process steps including the date to file information responses set out in the Commission s revised notice of hearing dated February 20, 2015, which is filed in this proceeding as Exhibit 3183-X If you have any questions, please feel free to contact the undersigned at or shanelle.sinclair@auc.ab.ca. Yours truly, Shanelle Sinclair Commission Counsel

96 April 6, 2015 To: Interested Parties (TAMA Power) Sundance 7 Project Proceeding: On December 11, 2014, the Alberta Utilities Commission (AUC or the Commission) issued a notice of hearing with respect to Proceeding The public hearing for this proceeding is scheduled to commence at Stony Plain, Alberta on Monday, April 13, In the event that the hearing is not completed by the end of the day on Friday, April 17, 2015 the hearing will be adjourned to continue at the Commission s hearing room in Edmonton, Alberta on Monday April 20, The address is as follows: HSBC Building, Room Street Edmonton, Alberta 2. To ensure that the hearing proceeds in an orderly and efficient manner, the Commission intends to take a number of steps as outlined below. Hearing schedule 3. The hearing will commence each day at 9:00 a.m. and finish at 5:00 p.m. A lunch break is scheduled from 12:30 p.m. to 1:30 p.m. The Commission may sit some evenings depending upon the need. The Commission will not however sit the evening of April 14, 2014 and the hearing will adjourn at 4:00 p.m on that day. Intended participation 4. The Commission understands that the applicant TAMA Power, the Gunn Metis Local 55, and the Cymbaluks intend to question each other, provide evidence and give argument. The Commission also understands that Parkland County intends to make a statement at the hearing. 5. However, it is unclear to the Commission how the Paul First Nation intends to participate in the hearing. Opening statements and aids to cross-examination 6. Should a party choose to file an opening statement, it should be brief and filed at least one day in advance of the commencement of the oral hearing. The Commission reminds all parties that witnesses in its proceedings must confine their testimony to matters set out

97 The Alberta Utilities Commission in their pre-filed documentary evidence or arising from evidence adduced in crossexamination. 7. Aids to cross-examination should be provided to counsel for the party under examination and uploaded to the E-Filing System at least one business day ahead of time. Witnesses 8. The Commission requests that the parties identify the witness(es) they intend to seat at the oral hearing and submit the following information for each witness: name of the witness; and key areas of responsibility, if applicable. if the witness is a consultant, a curriculum vitae (if not already filed on the record) 9. Should the parties intend to seat expert witness(es) please see the Commission s direction on this matter attached hereto as Appendix The AUC Staff understand that there may be some limited availability of witnesses. For local intervener witnesses, the Commission will make best efforts to accommodate these parties during the hearing and will sit evenings if required. With regards to experts, should a scheduling conflict arise, the Commission will create an order of appearances, in consultation with parities, and specify the date and time that a particular expert will be available for cross-examination during second week of the hearing which will be held in Edmonton. 11. The Commission asks that the above witness information be filed by no later than Thursday April 9, Yours truly, <issued electronically> Shanelle Sinclair Commission Counsel

98 The Alberta Utilities Commission April 6, 2015 To: Interested Parties (TAMA Power) Sundance 7 Project Proceeding: 3183 To: Parties currently registered in Proceeding No Qualifying witnesses 1. Section 20 of the Alberta Utilities Commission Act, SA 2007c. A-37.2, states that when the Alberta Utilities Commission (the Commission) is conducting a hearing, it is not bound by the rules of law concerning evidence that apply to judicial proceedings. The Commission also is able to determine the processes that best fit the nature of its proceedings. This allows the Commission some flexibility to determine what evidence to admit and what weight to give the evidence it admits, while at the same time, adhering to the principles of procedural fairness that underlie the formal rules of evidence. 2. One of the procedural matters that the Commission deals with is the qualification of experts. The purpose of qualifying a witness as an expert is to allow the witness to provide relevant opinion evidence. However, the Commission has generally allowed witnesses, whether qualified as experts or not, to provide opinion evidence where relevant to the scope of a proceeding. The value ascribed to such evidence is a question of weight, which is a function of the professional qualifications, specialized knowledge, experience, relevant publications, industry recognition and independence of the witness. 3. Given the above, the Commission is currently considering whether its current practice of qualifying expert witnesses is necessary or efficient. The elimination of the need to qualify witnesses as experts may streamline proceedings and avoid possible disputes over the expert designation, while continuing to allow parties to focus on the issue of the weight that should be accorded by the Commission to a party s evidence in the circumstances. To that end, the Commission has directed the writer to advise parties to this proceeding that it will not be necessary for counsel to request that their respective witnesses be qualified as expert witnesses with regard to their pre-filed written evidence or testimony at the oral hearing commencing on April 13, Given the continued need for the Commission to assess the weight attributable to the relevant evidence (including opinion evidence), curriculum vitae for the witnesses should continue to be provided and counsel should continue to review the qualifications of their witnesses as part of this hearing. Opposing counsel may, of course, question a witness qualifications and the credibility of the evidence provided, and opine on the weight that the Commission should give to the witness evidence. 5. With regard to any issues arising regarding cost claims, Schedule A to AUC Rule 009: Rules on Local Intervener Costs, establishes the same scale of costs for consultant fees, analysts

99 The Alberta Utilities Commission and experts. As such, cost claims submitted by eligible intervener parties for their consultants fees are not dependent on those consultants being formally qualified as expert witnesses. The costs awarded for the participation of consultant witnesses will be assessed on the basis of their contribution and assistance to the Commission in understanding the issues relevant to the proceeding. 6. If you have any questions, please contact the writer at Yours truly, <issued electronically> Shanelle Sinclair Commission Counsel

100 October 29, 2014 To: Interested Parties Sundance 7 Project Application No Proceeding No Commission ruling on a confidentiality request by the Gunn Métis Local In this ruling, the Alberta Utilities Commission (AUC or the Commission) must decide whether to grant a request by the Gunn Métis Local 55 (Gunn Métis) for confidential treatment of two maps identifying aboriginal harvesting locations within two kilometres of the proposed project. 2. The Commission has ruled on this motion and has directed me to write to interested parties to advise them of its reasons for this ruling. Background 3. On October 16, 2014, the Gunn Métis filed a motion with the AUC for a confidentiality order under Section 13 of AUC Rule 001: Rules of Practice (AUC Rule 001). In its October 16, 2014 letter, the Gunn Métis requested confidential treatment of information identifying aboriginal harvesting locations within two kilometres of the proposed project. Specifically, the Gunn Métis requested that the above noted information be treated as confidential and not be filed on the public record. The Gunn Métis submitted that this information relates to plants and other resources which are scarce due to high levels of residential, industrial, and other forms of development affecting the area. The Gunn Métis also submitted that the information would not cause prejudice to the public if kept confidential. 4. The Gunn Métis also requested the Commission s leave under Section 27 of AUC Rule 001 to file the maps after the deadline for statements of intent to participate has passed. 5. Further, the Gunn Métis requested that any hearing convened be held in camera so that the information in the maps would remain confidential. 6. On October 17, 2014, the Commission issued a letter to interested parties and directed the applicant and any other party who wished to reply, to file a response to the Gunn Métis motion by October 27, The Gunn Métis was given an opportunity to respond by November 4, On October 23, 2014, the applicant indicated that it did not object to the maps being the subject of a confidentiality ruling.

101 The Alberta Utilities Commission October 29, 2014 Page 2 of 4 8. By letter dated October 24, 2014, the Gunn Métis indicated that it would not be replying to the applicant s comments on its motion. Ruling 9. In issuing this ruling, the Commission has considered all relevant materials relating to the Gunn Métis application for confidentiality. References in this ruling to specific parts of the record are intended to assist the reader in understanding the Commission s reasoning relating to a particular matter and should not be taken as an indication that the Commission did not consider all relevant portions of the record with respect to that matter. The test for confidentiality 10. The information that the Gunn Métis seeks to keep confidential under Section 13 of AUC Rule 001 are two maps identifying harvesting locations in the project area that the Gunn Métis submits may be directly and adversely affected by the Commission s decision on the application. 11. The Commission is part of the system of administrative justice and must uphold an open public system. There is a strong presumption in favour of the open court principle in AUC proceedings to ensure the transparency of the Commission s process from the inception of a matter, and AUC rules reflect this presumption. In its past decisions, the Commission has considered that a confidentiality order should only be issued in limited circumstances because it is part of the system of administrative justice Subsection 13(4) of AUC Rule 001 describes when the Commission may issue a confidentiality order. That subsection states: 13.4 The Commission may, with or without a hearing, grant a request for confidentiality on any terms it considers appropriate (a) if the Commission is of the opinion that disclosure of the information could reasonably be expected (i) to result in undue financial loss or gain to a person directly affected by the hearing or other proceeding, or (ii) to harm significantly that person s competitive position, or (b) if (i) the information is personal, financial, commercial, scientific or technical in nature, (ii) the information has been consistently treated as confidential by a person directly affected by the hearing or other proceeding, and (iii) the Commission considers that the person s interest in confidentiality outweighs the public interest in the disclosure of the proceeding. 1 AUC Decision : Direct Energy Regulated Services Application for Approval of a Settlement Agreement in respect of the Energy Price Setting Plan, Application No , Proceeding No. 1077, May 5, 2011.

102 The Alberta Utilities Commission October 29, 2014 Page 3 of When deciding whether to issue a confidentiality order, in addition to applying the test established in Section 13, the Commission must also bear in mind the direction of Canada s courts on such matters. In Sierra Club of Canada v. Canada Minister of Finance, 2 the Supreme Court of Canada found that a confidentiality order under the Federal Rules of Court should only be granted when: (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings The Supreme Court of Canada in Sierra Club also emphasized that the risk in question must: (i) be real and substantial; (ii) be well grounded in the evidence; and (iii) pose a serious threat to the commercial interest in question. 4 This is consistent with the requirement in Section 13(4) of AUC Rule 001 which indicates that the party claiming confidentiality must point to the specific harm that would be caused if the information were placed onto the public record. Further, the interest at risk must be one which can be expressed in terms of a public interest in granting confidentiality. Commission s ruling 15. With respect to the maps, the Commission is not satisfied that the Gunn Métis has established that the location of its aboriginal harvesting grounds is information that is commercial in nature such that its disclosure could be reasonably expected to result in an undue financial loss or harm significantly the Gunn Métis, or its members competitive position. In the Commission s view, the location of traditional harvesting grounds more appropriately falls under the category of personal information. In the following section, the Commission will determine whether the maps that are subject to the confidentiality request warrant protection under subsection 13(4)(b) of AUC Rule Subsection 13(4)(b) of AUC Rule 001 requires the Gunn Métis to demonstrate that: (a) The information contained in the maps is personal, financial, commercial, scientific or technical in nature; (b) The maps have been consistently treated as confidential by the Gunn Métis; and (c) The Gunn Métis interest in confidentiality outweighs the public interest in the disclosure of that information in the proceeding SCC 41 [Sierra Club] SCC 41 at paragraph SCC 41 at paragraphs

103 The Alberta Utilities Commission October 29, 2014 Page 4 of The Commission considers that the maps contain the exact location of traditional harvesting grounds which the Gunn Métis uses to exercise aboriginal rights. The Commission accepts the Gunn Métis submission that the maps have been consistently treated as confidential by the Gunn Métis. 18. Based on the information submitted by the Gunn Métis, the Commission finds that there could be a real and substantial risk to the interests of the Gunn Métis if the maps were disclosed. The information contained in the maps is personal in nature and is sensitive. The maps release may prove detrimental to the Gunn Métis acquisition of medicinal plants and may impede the Gunn Métis members ability to exercise their constitutionally protected aboriginal rights. In this case, the specific harm identified is that members of the public would be given information on the exact location of traditional harvesting grounds and the Gunn Métis traditional harvesting of rare plants and other resources may be impacted. Based on the nature of the information depicted in the maps, the Commission considers that the salutary effects of public disclosure in the name of procedural fairness are outweighed by the deleterious effects to the Gunn Métis in this instance. Based on the foregoing, the Commission finds that the Gunn Métis interest in confidentiality outweighs the public interest for disclosure and therefore grants the request for confidential treatment of the two maps, for the purposes of Proceeding No Should a hearing be held on the project application, the portion of the hearing that may reveal the confidential information contained in the maps would be held in camera. 20. With respect to the Gunn Métis request for leave to file the maps after the deadline for statements of intent to participate has passed, the Commission grants the request and will allow the Gunn Métis to file the maps with the Commission by November 4, Conclusion 21. Because the Commission has granted a confidentiality order for the maps, the Commission directs the Gunn Métis to submit the maps either via fax or mail by November 4, The maps will only be available to registered parties who sign the confidentiality undertaking attached to this ruling as Schedule A and filed as Exhibit No The applicant and any other party wishing to receive copies of the maps, should file a confidentiality undertaking on the record of Proceeding No AUC staff will then distribute the maps to these parties in due course. Yours truly, <issued electronically> Shanelle Sinclair Commission Counsel Attachment

104 February 26, 2015 To: Interested Parties Sundance 7 Project Proceeding 3183 Application Commission ruling on a confidentiality request by the Gunn Métis Local In this ruling the Alberta Utilities Commission must decide whether to grant a request by the Gunn Métis Local 55 (Gunn Métis) for confidential treatment of certain will-say statements of Gunn Métis members and attached maps. 2. The Commission has ruled on this motion and has directed me to write to interested parties to advise them of its ruling and its reasons. Background 3. Previously, the Gunn Métis requested confidentiality for two maps that contained the locations of aboriginal harvesting grounds within two kilometres of the Sundance 7 Project. The Commission granted this request for confidentiality in a ruling dated October 29, On February 18, 2015, the Gunn Métis filed a second motion with the AUC for a confidentiality order under Section 13 of Rule 001: Rules of Practice. The Gunn Métis requested that its members will-say statements, and any maps attached thereto to be filed as evidence in the proceeding, be treated as confidential and not be filed on the public record. 5. Further, the Gunn Métis requested that any hearing convened be held in camera so that the information in the will-say statements would remain confidential. 6. The Commission issued a letter to interested parties and permitted the applicant and any other party to Proceeding 3183 to comment on the Gunn Métis motion. On February 20, 2015, the applicant indicated that it took no position with respect to the matter. The test for confidentiality 7. As part of the system of administrative justice the Commission must uphold an open public system. There is a strong presumption in favour of the open court principle in AUC proceedings to ensure the transparency of the Commission s process from the inception of a matter, and AUC Rules reflect this presumption. In its past decisions the Commission has

105 Alberta Utilities Commission February 26, 2015 Page 2 of 5 considered that a confidentiality order should only be issued in limited circumstances because it is part of the system of administrative justice Subsection 13(4) of Rule 001 describes when the Commission may issue a confidentiality order. That subsection states: 13.4 The Commission may, with or without a hearing, grant a request for confidentiality on any terms it considers appropriate (a) if the Commission is of the opinion that disclosure of the information could reasonably be expected or (b) if (i) to result in undue financial loss or gain to a person directly affected by the hearing or other proceeding, or (ii) to harm significantly that person s competitive position, (i) the information is personal, financial, commercial, scientific or technical in nature, (ii) the information has been consistently treated as confidential by a person directly affected by the hearing or other proceeding, and (iii) the Commission considers that the person s interest in confidentiality outweighs the public interest in the disclosure of the proceeding. 9. When deciding whether to issue a confidentiality order, in addition to applying the test established in Section 13, the Commission must also bear in mind the direction of Canada s courts on such matters. In Sierra Club of Canada v. Canada Minister of Finance, 2 the Supreme Court of Canada found that a confidentiality order under the Federal Rules of Court should only be granted when: (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings The Supreme Court in Sierra Club also emphasized that the risk in question must: (i) be real and substantial; (ii) be well grounded in the evidence; and (iii) pose a serious threat to the commercial interest in question. 4 This is consistent with the requirement in Section 13(4) of Rule 001 which indicates that the party claiming confidentiality must point to the specific harm that would be caused if the information were placed onto the public record. Further, the interest AUC Decision ; Application ; Proceeding 1077, May 5, SCC 41 [Sierra Club] SCC 41 at para SCC 41 at paras

106 Alberta Utilities Commission February 26, 2015 Page 3 of 5 at risk must be one which can be expressed in terms of a public interest in granting confidentiality. Commission s ruling 11. In issuing this ruling, the Commission has considered all relevant materials relating to the Gunn Métis application for confidentiality. References in this ruling to specific parts of the record are intended to assist the reader in understanding the Commission s reasoning relating to a particular matter and should not be taken as an indication that the Commission did not consider all relevant portions of the record with respect to that matter. 12. For the reasons that follow, and subject to the restrictions below, the Commission has decided to grant, in part, the Gunn Métis motion for confidentiality. The Commission recognizes that granting the confidentiality order will have a negative effect on the open hearing principle, because any person who does not sign a confidentiality undertaking will be denied access to the documentation provided and the oral hearing process in which those documents will be tested. However, it is also important to the Commission, and to all participants, that all relevant evidence on this topic be filed and tested. In the Commission s view, granting the requested confidentiality order will allow the Commission and participants to fully examine and test potentially relevant evidence that would otherwise be unavailable to it. 13. As the Commission understands it, the Gunn Métis is requesting confidentiality of the will-say statements of the member witnesses that the Gunn Métis intends to call at the Sundance 7 Project hearing, as well as any maps that may be attached thereto, because the following information is contained in these records: a. the location of specific harvesting grounds; b. information related to medicinal plants within the project area; c. health information of Gunn Métis members; and d. aboriginal traditional knowledge regarding the functioning of the Wabamun Lake ecosystem. 14. The Commission finds that the information pertaining to the exact locations of traditional harvesting grounds, including those depicted in the maps granted confidential status by the Commission s October 29, 2014 ruling, meets the test for confidentiality. The Commission finds no need to rule on the information in the will-say statements that discuss the aboriginal harvesting grounds identified in the two maps because this information is confidential pursuant to the Commission s October 29, 2014 ruling. With respect to any other aboriginal harvesting grounds depicted in maps attached to will-say statements of the member witnesses of the Gunn Métis, the Commission accepts the Gunn Métis submission that the location of harvesting grounds is personal in nature and is sensitive. The Commission finds that there could be a real and substantial risk to the interests of the Gunn Métis if the location of the traditional harvesting grounds were disclosed. The information s release may prove detrimental to the Gunn Métis acquisition of natural resources and may impede the Gunn Métis members ability to exercise their constitutionally protected Aboriginal rights. In this case, the specific harm identified is that

107 Alberta Utilities Commission February 26, 2015 Page 4 of 5 members of the public would be given information on the exact location of traditional harvesting grounds and the Gunn Métis traditional harvesting of rare plants and other resources could be impacted. 15. One of the issues raised by the Gunn Métis in this proceeding is the potential for the Sundance 7 Project to impact the Gunn Métis aboriginal harvesting rights. As the Commission understands it, these harvesting rights include the harvesting of medicinal plants. Publication of the location of medicinal plants may prove detrimental to the Gunn Métis because members of the public would become aware of, and may harvest, this scarce resource which, in turn, may impede the Gunn Métis members ability to exercise their constitutionally protected Aboriginal rights. In the Commission s view, the location of medicinal plants falls under the category of aboriginal harvesting grounds and is protected. 16. The Commission understands that the will-say statements may contain information about the use of medicinal plants to treat Gunn Métis members health. The Commission accepts that the health information of the Gunn Métis members is personal in nature and finds that this information warrants protection under a confidentiality order. 17. However, the Commission is not satisfied that aboriginal traditional knowledge regarding the functioning of the Wabamun Lake ecosystem is personal information that warrants protection under a confidentiality order. 5 As such, the Gunn Métis shall file the portions of the will-say statements that contain aboriginal traditional knowledge regarding the functioning of the Wabamun Lake ecosystem on the public record or provide further information on this matter to the AUC by March 4, Subject to the above, the Commission is satisfied that the remaining information should be granted confidential status in this preceding. The Commission considers that the salutary effects of public disclosure in the name of procedural fairness are outweighed by the deleterious effects to the Gunn Métis in this instance. Based on the foregoing, the Commission finds that the Gunn Métis interest in confidentiality outweighs the public interest for disclosure and therefore grants the request for confidential treatment of the will-say statements and maps (subject to the exception outlined in paragraph 17) for the purposes of Proceeding In making its ruling, the Commission has accepted the Gunn Métis submission that the information contained in the will-say statements that have been granted confidentiality in this ruling has been consistently treated as confidential by the Gunn Métis. 20. The portion of the hearing that may reveal the confidential information contained in the will-say statements will be held in camera. 5 Exhibit 3183-F0019, Gunn Métis Confidentiality Motion, page 2.

108 Alberta Utilities Commission February 26, 2015 Page 5 of 5 Conclusion 21. Because the Commission has granted a confidentiality order for the above information, the Commission directs the Gunn Métis to file the will-say statements and supporting maps either via fax or mail by March 6, The will-say statements will only be available to registered parties who sign the confidentiality undertaking attached to this ruling as schedule A and filed as Exhibit 3183-X The applicant and any other party wishing to receive copies of the information should file a confidentiality undertaking on the record of Proceeding Parties shall then request the confidential information from the Gunn Métis counsel. Yours truly, Shanelle Sinclair Commission Counsel

109 February 20, 2015 To: Registered Parties Sundance 7 Project Proceeding 3183 Application Request for further information 1. In this ruling, the Alberta Utilities Commission must determine whether to grant a motion by David Cymbaluk, Ferne Cymbaluk and Philip Cymbaluk (the Cymbaluks) for further and better responses to an information request they asked of (TAMA Power). TAMA Power opposes the motion. 2. The Commission has ruled on this motion and instructed the writer to communicate its ruling to interested parties. Information request 3. TAMA Power filed its responses to the Cymbaluks information requests on January 30, On February 5, 2015, the Cymbaluks filed a motion with the Commission in which they requested full and complete answers to TAMAPOWE-CYMBALUK-2015JAN , which reads as follows: (a) (b) (c) Please confirm that Attachment 1 to TAMAPOWE-CYMBALUK-2015JAN being a report entitled TAMA Power Sundance 7 Anhydrous Ammonia Tank Risk Modelling Study, dated September 2014 (the Modelling Study )- was the only such study conducted for this project. Please confirm that the Modelling Study is simplistic leading to the adoption of a single frequency of event and that the frequency of event was taken from an old database. Please confirm that the Modelling Study is not presented to rank overall facility hazards and risks.