ERT hearing APPEC reports

The Environmental Review Tribune on Ostrander Point  is examining the decision to approve an industrial wind turbine project at Ostrander Point, Prince Edward County.
During March and April, ERT members Heather Gibbs and Robert Wright heard many hours of expert testimony from dozens of Prince Edward County Field Naturalists’ (PECFN) case witnesses on how nine 500-foot turbines planted in concrete bases and with wing spans of a football field will impact plants and animals and the Important Bird Area on the shoreline of South Marysburgh.
The wind development company experts countered that there will be harm but not so great as to be irreversible.

In June, the hearing changed its focus to how turbines risk human health in a case brought forward by the Alliance to Protect Prince Edward County (APPEC). Their appeal must prove serious harm to human health, though not necessarily irreversible harm.

 Following is APPEC’s reports written by Henri Garand and Paula Peel for the June 3-7 and May 27-31 hearings.  The focus is almost exclusively on Dr. McMurtry’s testimony and cross-examination. Click here for previous reports on witness impacts.

Report on May 27th ERT Hearing on Human Health Appeal
H. Garand
The Environmental Review Tribunal heard the qualifying testimony and cross-examinations of two expert witnesses, Dr. Robert McMurtry and Dr. Robert Thorne, as well as submissions on the schedule for the remainder of the appeal.

Qualifying Examination of Dr. Robert McMurtry
APPEC lawyer Eric Gillespie sought to qualify Dr. McMurtry as an expert witness with the identical status accepted at the 2011 Erickson ERT appeal in Chatham-Kent: “a physician and surgeon with experience in healthcare delivery, healthcare policies, and health policy.”
Dr. McMurtry, a specialist in orthopedics, is an awarding-winning member of the Royal College of Physicians and Surgeons (RCPS). He is the former Dean of Medicine at the University of Western Ontario and a former assistant deputy minister at Health Canada, and was an adviser to the Romanow Commission on Healthcare. In 2012 he was made a member of the Order of Canada.
Sine 1992 Dr. McMurtry’s career has involved both his orthopedic practice and his interest in public health. Currently, he is on the board of the University of Waterloo’s Canadian Index for Well-being, which publishes an annual report rating Canada on eight criteria such as health, community vitality, and economics. He noted that the reports assess levels of stress and social engagement as indicators of well-being and reflect a bio-psycho-social model of medicine.
Dr. McMurtry, a Prince Edward County resident, had initially thought of erecting a wind turbine on his property, but he became concerned about the health impacts when he attended an APPEC meeting in August 2008 and heard Dr. John Harrison, a retired Queen’s University professor of physics, speak about turbine sound emissions and the level of noise. Since then he has spent some 7200 hours in researching, writing, and speaking on wind turbines. He has met with over 40 individuals suffering adverse health effects and reported on 53 cases to the Ontario government. He testified in two previous ERT appeals.
His peer-reviewed article “Towards a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis” was published in the Bulletin of Science, Technology and Society in 2011.
Dr. McMurtry served on the APPEC board for four years and was the founding chair of the Society for Wind Vigilance. He resigned from both boards so he could confirm his independence as a “health advocate,” one of the professional missions and roles of RCPS members.

Challenge of Dr. McMurtry
Following lengthy cross-examination and citing a number of legal precedents, Gilead Power lawyer Darrel Cruz challenged acceptance of Dr. McMurtry as an expert witness on these grounds: 1. Experience in healthcare policy was not relevant to the question of whether the Ostrander Point wind turbines would cause serious harm to human health; 2. Medical training in orthopedics was unrelated to the health effects reported by APPEC’s witnesses; 3. Past membership in APPEC indicated bias; 4. Past activities in opposing wind development were incompatible with the objectivity required of an expert witness.
Ministry of Environment lawyer Sylvia Davis added that the Erickson ERT was a different situation because APPEC was not the appellant and the Tribunal had qualified witnesses outside their areas of expertise.
APPEC’s Reply
Eric Gillespie defended Dr. McMurtry by saying that “healthcare policy” was clearly misunderstood. Dr. McMurtry is the only expert witness for this ERT who has published a relevant peer-reviewed article. He would be applying a health policy, his case definition, to the testimony given by APPEC’s other witnesses. As for advocacy and bias, if Dr. McMurtry’s past activities barred him, how could the other parties’ expert medical witnesses be qualified when they had written letters to newspapers, made public presentations, and been commissioned to write wind industry reports? Some witnesses financially benefited from wind development, while Dr. McMurtry had donated his money and time.

ERT Panel’s Deferral
Robert Wright and Heather Gibbs, ERT co-chairs, deferred a decision until the next morning.
Qualifying of Dr. Robert Thorne
Mr. Gillespie sought to qualify Dr. Thorne as an “expert in environmental health with knowledge of acoustics and psycho-acoustics.” Robert Thorne holds a Ph.D. from Massey University, New Zealand. His doctoral research was in intrusive noise and external sounds at the upper and lower levels of human hearing. Since 1999 he has been a principal in Noise Emissions Services, which researches hearing system devices and does acoustic consulting. He has studied wind turbine noise in two Australian and three New Zealand wind projects. At the Erickson ERT he was qualified in psycho-acoustics (the human perception of noise, or variations in sound).
Mr. Cruz and Ms. Davis questioned Dr. Thorne’s breadth of background and lack of relevant peer-reviewed publications.
The ERT panel amended Dr. Thorne’s qualification status to limit the scope of his expertise to “environmental health in relation to acoustics and psycho-acoustics.”

Schedule of ERT Hearings
The long day ended with a dispute over the witness schedule. Ms. Davis and Mr. Cruz proposed to comply with an ERT request by concluding all testimony on May 31. This would require APPEC to finish its case on Tuesday and all 11 MOE and Gilead witnesses to be heard in three days.
Mr. Gillespie protested that the schedule did not allow sufficient time for challenges, examinations and cross-examinations or for reply witnesses. Considering the time spent on the PECFN phase of the appeal, the schedule would not lead to a fair and just proceeding for APPEC but would result in an incomplete process. It would be a waste of the appellant’s and the Ontario taxpayer’s money because the same issues would have to be addressed in a new ERT appeal.
Mr. Wright asked whether any of the parties was seeking a statutory extension of the proceedings. Mr. Gillespie did not make such a motion, and Ms. Davis and Mr. Cruz said they would not consent to it. The ERT panel left the matter for further discussion the next day.
Report on May 28th ERT Hearing on Human Health Appeal
Paula Peel
The Environmental Review Tribunal heard examination testimony of APPEC witness Dr. Robert McMurtry and the full testimony of APPEC witness Dr. Robert Thorne via video conference from New Zealand.

Qualifying of Dr. McMurtry (cont’d)
Dr. McMurtry was qualified by the ERT Tribunal as a physician and surgeon with experience in healthcare delivery, health care policies and health policy. In their finding of expert qualifications the Tribunal noted Dr. McMurtry’s distinguished record of public service, as well as APPEC’s argument that he has discussed adverse health effects of industrial wind turbines with more victims than anyone else in Canada.

Examination of Dr. McMurtry
Dr. McMurtry said his peer-reviewed article “Toward a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis” represents a logical culmination of
35 years’ experience, stimulated by a symposium held in Prince Edward County in October 2010. The intent of the article is to assist primary health care practitioners in making diagnosis of probable adverse health effects in individuals in the environs of industrial wind turbine projects.
Dr. McMurtry discussed three orders of criteria in finding probable adverse health effects, in the sequence they should be used:
First order criteria: (a) living within 5 km of turbines, (b) altered health status following the start-up of turbines, (c) amelioration of symptoms when more than 5 km from turbines, and (d) recurrence of symptoms upon return to within 5 km of turbines. Dr. McMurtry noted that all four conditions must be present.
Second order criteria: (a) compromised quality of life, (b) continuing sleep disruption, (c) increased stress, including psychological distress, and (d) preference to leave residence temporarily or permanently.
Third order criteria: otological, cardiovascular, psychological, regulatory disorders, etc. Criteria either occur or worsen following the start-up of the wind project. Dr. McMurtry clarified that the line between second and third order criteria is not hard and fast: Second order criteria (compromised quality of life, or sleep disruption, or stress) usually lead to some elaboration.
Dr. McMurtry related the three orders of criteria to three post-turbine witnesses that have testified at the hearing: Douglas Desmond (May 21), Stephana Johnston (May 22), and Janet White (May 24). Dr. McMurtry noted the importance of “cross over,” the difference in how people feel when near turbines and upon leaving the environment. Ms. White did not report improvement when away from the turbines, and Dr. McMurtry understands that she has never left the environment. It follows that the first order criteria is not satisfied.
However, Dr. McMurtry considers that, more probably than not, Mr. Desmond and Ms. Johnston suffer serious harm. Both witnesses reside within 2 km of wind turbine projects. Nothing distinguishes Ostrander Point from those projects. Based on two persons per receptor/per residence, Dr. McMurtry believes that 16 individuals will more probably than not suffer serious harm when the Ostrander Point wind project operates as approved.
Dr. McMurtry said that the medical profession has not been kept informed. Individuals who report adverse health effects have been greeted with indifference and ridicule, and at times have been threatened with exposure of their full medical history. Dr. McMurtry noted the importance of the reference to the World Health Organization (WHO) in the Erickson ERT decision (2011).
Dr. McMurtry’s further testimony was postponed till Wednesday so a scheduled video conference with Dr. Thorne could proceed.

Examination of Dr. Robert Thorne
Dr. Thorne researches the human perception of noise, or variations in sound. His report “Wind Farm Noise and Human Perception: A Review” (2013) addresses the potential for serious to moderate adverse health effects in individuals living near large turbines.
Dr. Thorne noted sleep disturbance, anxiety, and stress. Since noise from wind turbines never stops, individuals are unable to escape the noise other than through leaving their environment. They are able to get used to environmental noises such as road traffic and planes but are unable to get used to turbine noise. Dr. Thorne considers that the fluctuating characteristic of sound from turbines poses a nuisance; amplitude modulation always applies and is one of the core characteristics of wind turbines.
Dr. Thorne views the sound of turbines as unique. He described it as swishing or a steady rumble with swishes, whines, and “rumble thumps.” Sound varies as blades turn with wind direction and when blades interact with disturbed air from other turbines. The swishing sound, as well as special audible effects such as “rumble thumps,” awakens people and keeps them from getting to sleep again.

Cross -examination of Dr. Robert Thorne
Sylvia Davis, lawyer for the Ministry of the Environment, asked Dr. Thorne whether his monitoring equipment was activated by people when they were annoyed by noise. Dr. Thorne replied that his study, according to New Zealand standards, required monitoring equipment to be set up five metres from a residence and inside a residence, with sound recorded continuously. The equipment is encased and cannot be interfered with.
Ms. Davis suggested to Dr. Thorne that someone could have anxiety or annoyance but these wouldn’t cause serious harm. Dr. Thorne replied that in his experience when people reach the point of being anxious, annoyed or agitated, they’ve got serious harm. Dr. Thorne noted his study only suggests the need for more research, the same research that used to be done for roads and railways.
Ms. Davis pointed out that the WHO night-time noise guideline is not more than 40 dB(A) outside homes versus the 32 dB(A) found in Dr. Thorne’s study to cause serious health harm.
Dr. Thorne agreed with Darrell Cruz, lawyer for Gilead Power, that he did not have access to all the medical records for all 23 people involved in his study. He noted that complaints related to people being awakened at night, over months and months of wind turbine noise, and their reports of anxiety and sleep disturbance.

Re-examination of Dr. Thorne
APPEC lawyer Eric Gillespie asked Dr. Thorne about the discrepancy between the WHO guideline and his study. Dr. Thorne said the WHO health effects and sound criteria relate to noise generated by roads, traffic and the environment. Those guidelines are not meant for fluctuating sounds that are constantly on, 365 days a year in rural environments.
Mr. Gillespie asked Dr. Thorne about Mr. Cruz’s comment on not reviewing the medical records. Dr. Thorne noted the government’s Privacy Law, but he had analyzed, nonetheless, some historical health records feely provided by participants.

ERT Panel Questions
Mr. Wright asked about the turning of the turbines and the different sounds they make in different wind directions. Dr. Thorne replied that the wind usually changes direction incrementally but a small change (10% or so) causes a rumble-thump that sounds “like an old boot in a dryer.” It is quite different from the normal operating “swishing” sound. Sounds are also different when there are clusters of turbines or multiple turbines.

Report on May 29th ERT Hearing on Human Health Appeal
H. Garand
The Environmental Review Tribunal received an APPEC motion to extend the deadline for an ERT decision, and it heard the cross-examination of APPEC witness Dr. Robert McMurtry.

APPEC Motion for Adjournment
APPEC Lawyer Eric Gillespie made a motion to adjourn, or extend the ERT’s period for decision making, for one week, i.e., to July 10. Gilead Power’s lawyer Darrel Cruz said Gilead did not consent to the motion but would not oppose it. Ministry of Environment lawyer Sylvia Davis said that MOE consented to the motion.
The ERT panel granted the adjournment as “necessary to ensure a fair and just hearing.”
Gilead Cross-examination of Dr. Robert McMurtry
Darrel Cruz started to lead Dr. McMurtry through a witness-by-witness review of his assessment of the information each had provided. Eric Gillespie objected to the attempt to turn the ERT into a series of “personal injury” cases. ERT co-chair Robert Wright ruled that Mr. Cruz would be given a little time to establish his line of inquiry.
Mr. Cruz then focused on three witnesses and questioned Dr. McMurtry’s conclusions. Dr. McMurtry explained how he applied the three orders, or categories, of criteria in “Towards a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis.” He said they were a guide for primary healthcare givers and were not intended to replace full diagnosis, which would involve direct questioning, examination, and medical tests. However, they were a screening diagnosis such as used in orthopedics before surgery. The case definition sets forth three categories that would lead to a possible, probable, or confirmed diagnosis of adverse health effects related to wind turbines. None of the witnesses had a confirmed diagnosis because there was no testing.
Turning to the medical records for each of the witnesses, Mr. Cruz drew Dr. McMurtry’s attention to pre-existing conditions and the results of tests such as for blood pressure and blood sugar, and he asked Dr. McMurtry to consider alternative explanations. Dr. McMurtry proceeded to give some lessons in medical practice and diagnosis, and he declined to agree with the simplistic interpretations Mr. Cruz repeatedly presented.
Dr. McMurtry went on to emphasize that the case definition serves medical rather than legal purposes, though he appreciated the rigorous scrutiny it was receiving.
Mr. Cruz asked about the importance of establishing a dose relationship in terms of sound levels and frequencies. Dr. McMurtry agreed that it was valuable to have a patient’s history of exposure and subjective response to the intensity and frequency of turbine sounds.
Next, Mr. Cruz questioned the 5-km distance specified in the case definition. Dr. McMurtry said it is not a proposed setback. The distance was chosen as the environs of a wind turbine because adverse health effects spread farther as turbines increase in size and sound emissions. Since health effects have already been reported as far as 10 km away, 5 km seemed a reasonable compromise. Dr. McMurtry pointed out that the key variable is the turbine noise signal. A setback is simply a proxy for the noise level.

MOE Cross-examination of Dr. McMurtry
Sylvia Davis inquired about the origin of the case definition. Dr. McMurtry said it is based on self-reports on a questionnaire developed by Wind Voice and gathered from Ontarians living near wind projects. There was no research on the prevalence of complaints; that would require an epidemiological study such as Health Canada is undertaking. Dr. McMurtry pointed out that family physicians applying the case definition have not reported false positives, and some have contacted him with the “probable diagnosis” of adverse health effects related to wind turbines.
Ms. Davis asked whether some criteria could be side effects of prescribed drugs. Dr. McMurtry said this could be true of third order criteria but not first or second. Ms. Davis wondered about “common health complaints” related to circumstances like aging. Dr. McMurtry said the case definition was not about statistics but diagnosis.
Ms. Davis asked about the “small number” of people affected. Dr. McMurtry said the situation is the same as for diseases like lung cancer: Not everyone exposed to risk factors becomes ill. Even within families some members have adverse effects from turbines while others do not. Reports worldwide suggest that 5-40% of people experience adverse effects, the percentage varying with the distance from turbines.

APPEC Re-examination of Dr. McMurtry
Mr. Gillespie asked whether any of the day’s questioning had caused Dr. McMurtry to change his opinions. He said that with more information he now felt it is “more likely than not witnesses are suffering from industrial wind turbines.”
ERT Panel Questions
Co-chair Heather Gibbs asked about the prevalence of adverse effects due to the Ostrander Point project. Dr. McMurtry said it is not possible to establish prevalence until population studies are completed.

Testimony of Dr. Sarah Laurie
Dr. Laurie was scheduled to testify by video conference from Australia, but technical difficulties prevented it.

Report on May 31st ERT Hearing on Human Health Appeal
H. Garand
The Environmental Review Tribunal heard discussion and a motion on the status of APPEC’s case.
Outstanding Issues in APPEC’s Case
APPEC Lawyer Eric Gillespie confirmed that due to technical difficulties expert witness Dr. Sarah Laurie would not be testifying from Australia.
The issue now before the Tribunal was the “agreed statement of fact” on the medical records of APPEC witnesses. This would enable the “truth of the opinions” in the medical records to be accepted without the need to call physicians to testify as to their accuracy.
All counsel are in agreement that the medical records are acceptable for post-turbine witnesses up to the time that wind projects started operation. Gilead Power lawyer Darrel Cruz said that Gilead was prepared to consider the post-operational records of five witnesses but declined to consider those of the other four.
Co-chair Robert Wright directed counsel to undertake further discussions on the understanding that an extension of the hearing had already been given and APPEC’s case was supposed to close on May 30.
After a lunch-hour adjournment Mr. Gillespie reported that he wished to call a doctor and social worker to testify on the medical records of one APPEC witness, whom he considered representative of psychological harm. Both Mr. Cruz and Ministry of Environment lawyer Sylvia Davis objected on the grounds that APPEC’s case had closed and further delay would prejudice their own cases.

APPEC Motion
Mr. Gillespie presented a motion asking for leave to call two expert witnesses who would testify Monday morning by video conference.
Mr. Cruz objected that APPEC’s case did not rest on the testimony of treating physicians but on Dr. McMurtry’s review of witness statements. Ms. Davis emphasized the timelines in the Renewable Energy Approval process.
The ERT panel adjourned to weigh the arguments. Then Mr. Wright and co-chair Heather Gibbs dismissed the motion because it had not been demonstrated that the new expert testimony was sufficiently important to APPEC’s case and that the prejudice to APPEC’s case was sufficient to offset the prejudice to Gilead’s and the MOE’s due to the time constraints.

APPEC Reports on ERT Appeal on Ostrander Point Witnesses, June 3 – June 7, 2013
Written by H. Garand and P. Peel

Report on June 3rd ERT Hearing on Human Health Appeal
H. Garand
The Environmental Review Tribunal heard the commencement of Gilead Power’s and the Ministry of Environment’s case. Shant Dakouzian, noise assessment consultant, testified for Gilead, and Denton Miller, Approvals branch, for the MOE.
Qualifying of Shant Dakouzian
Gilead Lawyer Bryn Gray sought to qualify Mr. Dakouzian as an “expert in noise assessments for wind farms.” Mr. Dakouzian is a professional engineer with a B.Eng. from McGill University. Since 2006 he has worked on noise assessment of 50 wind power projects. Currently, he is team leader and project manager for noise assessments with G. L. Girard-Hassan, the world’s largest renewable energy consultant.
APPEC lawyer Eric Gillespie confirmed that Mr. Dakouzian has no publications on noise assessment and is not a psycho-acoustician or an expert on medical or health assessment of noise.
The ERT panel qualified Mr. Dakouzian as proposed.

Examination of Shant Dakouzian
Mr. Dakouzian supervised the Girard-Hassan employee who carried out computer modeling for the noise of Ostrander Point turbines. He reviewed the MOE guidelines for the project, checked the data on receptor distances, verified the parameters in the computer model, and co-wrote the consulting report. The predicted noise for the project complies with the MOE’s Class 3 regulations (rural area with a population of less than 1000) and night-time noise limit of 40 dBA.
The measurements, Mr. Dakouzian explained, are audible sound levels averaged over time as calculated at 4.5 m above each receptor site (e.g. centre of a residence), with each turbine operating at maximum sound output. He said the model gives conservative results by considering all receptors as downwind from all turbines and by using conservative parameters for ground absorption, temperature, and humidity. The results reflect worst case scenarios that might happen from time to time.
Bryn Gray then asked Mr. Dakouzian to report his observations of the receptors when he visited the project area last week. Mr. Gillespie objected to evidence not cited in a witness statement as well as to the relevance of such evidence.
ERT co-chair Robert Wright upheld the objection.
MOE lawyer Sylvia Davis had no questions for Mr. Dakouzian.

Cross-examination of Mr. Dakouzian
Mr. Gillespie confirmed that Mr. Dakouzian is not a specialist in directly measuring the noise output of Industrial Wind turbines. Noise assessments use power levels provided by turbine manufacturers. The computer models simulate noise emissions taken at one-minute intervals and averaged over an hour. The ISO standard for measurement is exclusively the A-weighted scale. The MOE’s guidance rules do not distinguish between permanent and seasonal residences.

ERT Panel Questions
Mr. Wright asked Mr. Dakouzian to explain A weighting. He said it was a filter that indicated how the human ear hears sound.
Mr. Gillespie sought clarification. Mr. Dakouzian said the computer model filtered, or A-weighted, the manufacturer’s sound data. The data can be filtered as either a first or last step in calculations, but the results are identical.

Qualifying of Denton Miller
Denton Miller, a professional engineer with a B.Eng. from Waterloo, has worked for the MOE for 22 years and has reviewed over 30 wind projects. He assisted in development of the MOE’s 2008 noise guidelines and a later compliance protocol. Currently, he is a senior review engineer for Renewable Energy Approval assessments and also coordinates assessment of compliance complaints.
Mr. Gillespie confirmed that Mr. Miller is not an expert on medical or human health issues.
The ERT panel qualified Mr. Miller as a “noise engineer with expertise in MOE noise guidelines and compliance protocols for wind turbines.”

Examination of Denton Miller
Mr. Miller said he had reviewed the Ostrander Point project with respect to noise guidelines and good engineering practices, and had made recommendations for compliance. He explained that MOE guidelines allow for noise bursts above 40 dBA due to the “masking effect” when ambient sound rises as a result of higher wind speeds; thus, turbine noise could be as much as 45 dBA at a wind speed of 8 m per second and a maximum of 51 dBA at 10 m per sec. He said the World Health Organization guidelines call for a yearly average of 40 dBA at night, while the MOE specifies 40 dBA as an hourly average. In addition to double checking consultants’ noise assessments, the MOE requires acoustic audits once projects are constructed.
Mr. Miller also explained the process for handling complaints. He said that the MOE investigates complaints from residents living within 1500 m of a wind project. Complaints can lead to the installation of noise monitoring equipment, which is activated by residents upon instances of annoyance. The results of monitoring in the Stephana Johnston case were inconclusive, but no follow-up has occurred. Noise levels averaging 44 dBA in the Mike Davey case have led to a second monitoring session, now underway.
Mr. Gray had no questions.

Cross-examination of Denton Miller
Mr. Gillespie confirmed that neither the proponent nor the MOE has conducted a human health assessment for the Ostrander Point project. Mr. Miller admitted that the MOE’s compliance protocol did not address infrasound and low-frequency sound.
Mr. Miller was also challenged on several apparent inconsistencies in the MOE’s regulations and practices:
1. The MOE did not assess cumulative noise effects of the White Pines wind project, despite its notice of commencement published in April 2008. Mr. Miller said it may have been “in the process of being planned” (a phrase used in the regulations), but there was no draft site plan for turbines.
2. The MOE requires identification of all receptors within 2 km of a project, but noise assessment only within 1500 m.
3. The ISO standard used for noise modeling is not verified as accurate beyond 1000 m.
4. The ISO standard is accurate only within +/- 3 dBA; however, modeling of predictable worst case scenarios relies on average noise levels, not the maximum variability.

ERT Panel Questions
Co-chair Heather Gibbs asked about compliance assessment. Mr. Miller said that monitoring equipment is a screening tool. A noise audit is required to determine non-compliance.

Report on June 4th ERT Hearing on Human Health Appeal
Paula Peel
The Ministry of the Environment’s (MOE) case continued with the Environmental Review Tribunal hearing the full testimony of Dr. Cornelia Baines. Gilead Power witness Dr. Werner Richarz was qualified to give testimony.
Qualifying of Dr. Baines
Dr. Baines is Professor Emeritus at the Epidemiology Division of the Department of Public Health Sciences, University of Toronto. For the past thirty years Dr. Baines has researched the efficiency of breast cancer screening.
Dr. Baines confirmed that she is not an expert in wind turbines, in acoustics, or in sleep disturbances, tinnitus, ear pressure, headaches or any other medical symptoms that form the central case for the appellant. Dr. Baines has done no epidemiological study of health effects related to wind turbines. Dr. Baines has not been a practicing physician since the early 1980s.
APPEC lawyer Eric Gillespie submitted evidence relating to Dr. Baines’ testimony at the Chatham-Kent ERT, including a presentation to the Executive Committee of the City of Toronto in April 2010 and a letter to the Guelph Mercury, also in April 2010, where Dr. Baines asserts there is no evidence of adverse effect on health. Dr. Baines said that her view has not changed.
Dr. Baines was qualified as a physician epidemiologist with expertise in the design, measurement and evaluation of research studies.

Examination of Dr. Baines
Dr. Baines gave various reasons why there is no evidence of a causal effect between wind turbines and exposed populations:
• Symptoms preceding wind turbines, either because of suggestion or worry.
• Constancy, where only 1 in well over 200 people have complained.
• Biological plausibility: unlikely such a wide range of symptoms caused by a single source.
• Reversibility in effects reported. Suggestibility comes into play: If you believe wind turbines are making you ill and you leave, there will be psychogenetic benefit to counteract psychogenic harm.
• Small sample sizes in Dr. Nissenbaum’s study and others. These render it difficult to produce compelling conclusions.
Dr. Baines considers that the association of symptoms with wind turbines is not strong based on the prevalence of the same symptoms in the general population. According to a New Yorker article, more than 50% of people aged 13-64 experience sleep problems. A U.S. study found that 1 out of 3 people over age 51 complain of fatigue. In Canada, 6.4 million people over the age of 15 report a lot of stress in their lives.
Dr. Baines believes that age may contribute to symptoms, such as aching bones, tinnitus, and heart palpitations, experienced by people bothered by wind turbines. Dr. Baines noted that in the questionnaires provided to the MOE people over 40 reported 80% of the symptoms.
Dr. Baines considers that Dr. Robert McMurtry’s study is very preliminary, the methodology is unsound, and the manner in which the case study was developed does not meet appropriate standards. She identified two problems with Dr. Robert Thorne’s study: the overall small sample size and the diverse sample composition.
Dr. Baines concludes that no evidence shows wind turbines cause harm to health.

Cross-examination of Dr. Baines
Mr. Gillespie asked Dr. Baines whether it was fair to say that virtually all the symptoms she looked at were irrelevant in terms of APPEC’s case and whether she was aware that neither Dr. McMurtry nor Dr. Thorne referred in their testimony to “wind turbine syndrome”. Dr. Baines considers that the 200+ symptoms identified by Simon Chapman are part of a working knowledge of wind turbine syndrome and that use of this term is prevalent.
Mr. Gillespie noted Dr. Baines’ reliance on such diverse sources as the New Yorker and the Toronto Star, on the British Medical Journal, and a summary on Simon Chapman’s website. Dr. Baines said
she was informed by newspaper reports but depends on journal articles. Dr. Baines denied she is an advocate.
Given the prevalence of symptoms such as sleep disturbances, fatigue, stress, headaches and heart palpitations, Mr. Gillespie asked Dr. Baines if people presenting in hospital with any one of these symptoms would be told: “why everybody gets these, so go home”. Dr. Baines said that the important issue isn’t what happens when people go to a doctor, it’s how many people do not go.
Dr. Baines did not agree that a doctor would look into the cause of disturbed sleep. She said that as a physician she had many patients complaining of disturbed sleep. There were probably multiple causes and they would be difficult to identify.
ERT Co-chair Robert Wright asked Dr. Baines whether this answer would be the same for each of the other effects listed. Dr. Baines replied that some effects cry out for investigation and some call for reassurance.
Mr. Gillespie asked Dr. Baines if a doctor would look into the causes of any of the conditions. Dr. Baines agreed that the issue is causation, that a doctor would look into the possibilities for vertigo, ear pressure or heart palpitations, and that one of the possibilities is noise annoyance. Dr. Baines agreed that Dr. Levanthall presents a biological mechanism, but she argued that the missing variable is the level of noise required to create those symptoms.

Re-examination of Dr. Baines
Dr. Baines said that she has reviewed the transcript on the internet of three witnesses and they are all clearly unhappy and afflicted.

ERT Panel Questions
Co-chair Heather Gibbs asked Dr. Baines to clarify the distinction between association and causation. Dr. Baines gave the example of silicone breast implants. When women became concerned that breast implants were causing autoimmune disease, they attributed to the implants everything that happened, from tooth extractions to divorce. For them, it was a causal effect.
Mr. Gillespie noted that some effects were associated with breast implants and some were not. Dr. Baines agreed.
Mr. Wright asked about psychogenic illness. Could it be demonstrated by epidemiological study? Dr. Baines said it would require subjecting individuals to sham and real infrasound for varying lengths of time. If they endured this over a month, it might be possible to say they were not just having psychogenetic symptoms. The problem, however, is that no experiment which could cause harm to people is ethically acceptable. Dr. Baines added that there was no reason to be concerned with noiseless infrasound in real life.

Qualifying of Dr. Richarz
Dr. Richarz has worked in the field of acoustics for many years. He has published 24 peer-reviewed papers in this area. In 2003 he began working on wind projects and has assessed 14 in all. Dr.
Richarz currently serves on the committee for Health Canada’s Wind Turbine Noise and Health Study.
Gilead lawyer Bryn Gray sought to quality Dr. Richarz as an expert in acoustics and in the assessment of wind turbine noise. There were no questions or objections.
The ERT panel qualified Dr. Richarz as proposed.

Report on June 5th ERT Hearing on Human Health Appeal
H. Garand
The Environmental Review Tribunal heard Ministry of Environment (MOE) witness Dr. Kieran Moore, independent presenter Dr. Alban Goddard-Hill, and Gilead Power witness Dr. Werner Richarz.
Qualifying of Dr. Kieran Moore
Dr. Kieran Moore is the associate medical officer of public health for Kingston, Frontenac, Lennox and Addington. He is also an associate professor in emergency medicine at Queen’s University. He has not carried out research on industrial wind turbines (IWTs), but he said he keeps up to date on the scientific literature because of the Wolfe Island wind project.
There were no objections to Dr. Moore being qualified as a “physician with expertise in family and emergency medicine, public health, and preventive medicine.”

Examination of Dr. Kieran Moore
Dr. Moore noted that as the medical records of APPEC’s witnesses do not provide a complete exposure history, diagnostic errors could easily occur. He said further complications can arise from patient bias, drug interactions, and fluctuating chronic conditions such as depression and fibromyalgia. Referring to three patients, he commented on the difficulty of diagnosis but suggested alternative explanations for their insomnia, which he said, in any event, is prevalent in the general population.
Dr. Moore supports the findings in the report by Dr. Arlene King, Ontario’s Chief Medical Officer of Health, that IWTs are a not a cause of direct adverse health effects. He outlined the Bradford-Hill criteria for causation and said these are difficult to apply because a biologically plausible pathway for IWTs is unknown and IWTs are reported to have multiple effects rather than a single health effect. He called Dr. McMurty’s case definition a “hypothetical syndrome” in which third-order criteria include many conditions present in a large population. He said annoyance is “a normal state, not a disease,” and he suggested that it may be due, not to noise, but simply to hearing and seeing IWTs.
Dr. Moore compared “harm to human health” to a pyramid in which death is at the top, fatal diseases and permanent chronic diseases below, and so on. He said serious harm is irreversible. He also questioned the World Health Organization’s definition of health (”complete sense of well-being”) as “unrealistic”; he preferred “resilience to stress.”
The Precautionary Principle, according to Dr. Moore, cannot be used for IWTs because there are no significant health effects and no certainty of causation. The MOE’s compliance protocol is a sufficient precaution.

Cross-examination of Dr. Moore
Gilead Power lawyer Bryn Gray had no questions.
APPEC lawyer Eric Gillespie confirmed that (1) Dr. Moore had reviewed only the witness statements and medical records, not transcripts of testimonies, (2) no “exposure history” is documented, and (3) Dr. Moore had made no diagnoses.

ERT Panel Questions
Co-chair Robert Wright asked for clarification on the Precautionary Principle. Dr. Moore said that it required adequate evidence of causation and high probability of significant harm.
Mr. Wright also asked about direct effects of IWTs located on Crown land to which the public has access. Dr. Moore said signs might warn people of the risks.
Co-chair Heather Gibbs asked about indirect pathways such as sleep deprivation causing adverse health effects. Dr. Moore said that sleep disorders are common and IWTs would cause no problems because of current noise limits and setbacks.

Presentation of Dr. Alban Goddard-Hill
Dr. Goddard-Hill was qualified as a “physician in general practice and family medicine.”
Dr. Goddard-Hill noted that reports of sleep disorders are increasing in Ontario and that sleep problems can lead to a wide range of physiological and psychological effects. He said that IWTs would cause sleep deprivation in some people, with potentially fatal consequences. He referred to articles in an appendix to his written presentation that linked sleep deprivation to drowsiness in drivers and to fatal motor accidents.

Examination of Dr. Werner Richarz
Dr. Richarz provided a primer on acoustics and IWTs. The A-weighted measurement scale is a convenient way to mimic human perception of sound. Sound is attenuated by distance and atmospheric conditions, as well as by the absorption of vegetation, ground, and structural barriers. Infrasound is at the frequency range below 20 Hz (hertz), and it is not audible at 550 m. Low-frequency noise (LFN) is defined as 10-100 or 20-200 Hz.
The noise from IWTs is both mechanical (e.g. from gears and generators) and aerodynamic (from the rotating blades and atmospheric airflow, or turbulence). Amplitude modulation is usually small and not perceptible: one dBA, 1% of the time. The “swoosh” sound comes from broadband noise that rises and diminishes. Newer turbines have smoother operation.
Dr. Richarz considered three studies of turbine noise. He said that tests at witness Nicole Horton’s house show the turbines are in compliance. The study at the Shirley, Wisconsin, wind project may have identified peaks of LFN, but these were not audible and LFN is “not a serious issue” for health. The results in Dr. Thorne’s study of turbine noise suggest that other sounds had contaminated the measurements.
Dr. Richarz concluded that the Ostrander Point project poses little harm because the area is sparsely settled and residents would not be exposed to more than 40 dBA of noise.

Report on June 6th ERT Hearing on Human Health Appeal
Paula Peel
Gilead completed its case before the Environmental Review Tribunal with Dr. Werner Richarz continuing his testimony from June 5 and Dr. Robert McCunney giving full testimony.
Cross-examination of Dr. Richarz
Dr. Richarz agreed with APPEC lawyer Eric Gillespie about the uncertainty in the international standard. He said that uncertainty is implicit in the guideline; if the predicted value is 40 dBA, there is uncertainty of 3 +/- dBA.
Mr. Gillespie questioned Dr. Richarz’s reliance in his witness statement on an Australian study that found an insignificant difference in infrasound levels in urban homes, rural homes, and rural homes near wind farms. Mr. Gillespie pointed out that it was a week-long study involving seven urban homes and four rural homes. Of the four rural homes two were located 1.5 km from wind turbines, and the other two, 10 and 30 km away. Dr. Richarz did not know the number of wind turbines involved in the study or their make or model.
Mr. Gillespie referred Dr. Richarz to a summary in Noise Bulletin, June 2011, of a paper presented at a 2009 conference in Rome. Dr. Richarz had looked at how low-frequency pulses could become audible. In a real atmosphere with turbulence the pulse shape can be distorted. The result is an audible burst of noise perceived as a “swoosh”. Dr. Richarz attested to the accuracy of the summary and said that conclusions stated in the paper have not changed.

Re-examination of Dr. Richarz
Gilead lawyer Bryn Gray asked Dr. Richarz about the audible burst of noise. Dr. Richarz said that infrasound is not audible, but the pulse contains low-frequency noise. A precise, pristine sound goes into the atmosphere and then washes out, and part of the sound becomes audible.

ERT Panel Questions
Heather Gibbs asked about Dr. Thorne’s reference to a “rumble-thump” noise. Dr. Richarz referred to this as mechanical noise associated with older wind turbines. Newer turbines have improved fittings that provide smoother turning mechanisms.
Robert Wright asked about someone standing within 30 m of his or her house at night, hearing some noise from turbines, and then moving indoors. What is the difference in the sound? Dr. Richarz said that some of the swooshing sound would be diminished.
Dr. Richarz agreed with Mr. Gillespie that (1) living in a brick house is not the same as living in a wood- or aluminum-sided house and results would vary, (2) dBA increases if windows are open, and (3) standing waves inside a structure affect the sound people hear.

Qualifying of Dr. McCunney
Dr. McCunney is a physician at the Massachusetts General Hospital Pulmonary Division, Harvard Medical School, and a Research Scientist at MIT. His research pertains to occupational and environmental health hazards. Dr. McCunney teaches public health and epidemiology at MIT as well. He is one of the authors of the AWEA/CanWEA white paper: Wind Turbine Sound and Health Effects: an Expert Panel Review (2009).
Dr. McCunney confirmed that none of the 94 peer-reviewed publications in his CV refers to wind turbines, and the AWEA/CanWEA white paper is not a peer-reviewed publication nor was it ever intended as such.
Gilead lawyer Darrel Cruz sought the same qualification as Dr. McCunney received at the Chatham-Kent hearing (Erickson 2011). There were no questions or objections.
The ERT panel qualified Dr. McCunney to give opinion evidence as a medical doctor, board certified in occupational and environmental medicine, with particular expertise in the health implications of noise exposure.

Examination of Dr. McCunney
Dr. McCunney stated his opinion that the Ostrander Point wind project will not cause harm to human health. That opinion is based on Dr. McCunney’s reading of post-turbine witness reports, on the Helimax report, on various wind industry-funded studies, and on the nature of people’s complaints as follows:
– Evidence provided in medical records of 10 post-turbine witnesses does not demonstrate a causal link with wind turbines.
– The Helimax report states that sound at receptors for the project will not exceed 40 dBA. There are no direct health effects as far as is known at less than 40 dBA.
– Studies in Texas, Australia, etc. conclude that infrasound may be detectable under turbines but is not detectable as one moves away. Two studies conclude that infrasound may be measurable but is not harmful.
– Annoyance may have nothing to do with a person’s health. Complaints of annoyance relate to visual appearance, economic benefit, etc.
– An Australian study of wind projects lends support to the psychogenetic hypothesis: While symptoms may be real they are generated by the psyche.
Dr. McCunney noted that APPEC’s notice of appeal cites 16 different symptoms but none is specific to any disease. In thirty years of environmental medicine Dr. McCunney has never encountered a hazard that could cause so many symptoms.

Cross-examination of Dr. McCunney
Since Dr. McCunney had stated that there may be adverse health effects from being under wind turbines, Mr. Gillespie asked whether there would be any harmful effects if a wind turbine was 10 m from a home. Dr. McCunney said that he could not answer this question without knowing the noise levels.
Mr. Gillespie asked Dr. McCunney whether he was telling this Tribunal that no witnesses presented sufficient medical evidence. Dr. McCunney said he was referencing one witness in general and he did not have supporting notes with him for the others. Dr. McCunney said that proper steps were not taken, information is insufficient, and it is impossible to do a thorough causality assessment.
Mr. Gillespie pointed out that Mr. Olivera’s 2010 psychiatric report describes complaints after Mr. Olivera built a home and wind turbines went up around it. Dr. McCunney agreed that Mr. Olivera had symptoms of a major depressive disorder.

Re-examination of Dr. McCunney
Gilead lawyer Darryl Cruz asked Dr. McCunney to clarify his thinking on Mr. Olivera. Dr. McCunney said that he didn’t see any causality assessment when perusing Mr. Olivera’s records. He noted that depression is a common condition for a lot of people and needs to be explained more thoroughly.

ERT Panel Questions
Heather Gibbs noted Dr. McCunney’s reference to the World Health Organization (WHO) in the context of night-time noise. Dr. McCunney said that he was familiar with the WHO definition of health as the freedom from infirmity and disease and also with its commentary on quality of life.

Report on June 7th ERT Hearing on Human Health Appeal
H. Garand
The Environmental Review Tribunal heard the reply evidence of two APPEC expert witnesses: Dr. John Harrison and Dr. Robert McMurtry.
Qualifying of Dr. John Harrison
John Harrison, Ph.D., Queen’s University professor emeritus of physics, has been studying wind turbine noise since 2006 when a wind project was proposed for Amherst Island, on which he resides. Subsequently, he made presentations to the Ministry of Environment (MOE) and delivered papers at wind energy conferences and the Canadian Acoustics Association.
Both Gilead Power lawyer Bryn Gray and MOE lawyer Sylvia Davis objected to Dr. Harrison on the basis that he was not an expert in acoustics, his position as vice president of the Association to
Protect Amherst Island showed bias, and his evidence went beyond matters raised in earlier testimony.
After a morning of debate the ERT panel qualified Dr. Harrison as an “expert physicist” and limited the scope of his evidence.

Examination of Dr. Harrison
Dr. Harrison questioned the noise levels defended by witnesses Shant Dakouzian, Denton Miller and Dr. Werner Richarz:
– Sound power level specifications are not accurate for the operational range of atmospheric conditions. A large wind speed gradient enhances amplitude modulation by 5-8 dBA and in extreme cases by up to 15 dBA.
– A conservative ground parameter is 0. 5, not 0.7, because it balances hard and soft surfaces.
– Aerodynamic noise in wind turbines is generated predominantly by the blades and turbulent inflow noise. Rotation modulates the amplitude of the turbine noise at the blade passage frequency. Typically the amplitude modulation is 3 to 5 dBA, with examples in the range 8 to 10 dBA.
– The MOE’s 2008 Noise Regulations do not acknowledge turbulent inflow noise.
– Despite improvement in the MOE’s noise guidelines and measurements, variations are still possible of 1-5 dBA.

Cross-Examination of Dr. Harrison
Ms. Davis asked a clarifying question on ground parameter. Mr. Gray had no questions.

Examination of Dr. Robert McMurtry
Dr. McMurtry began by acknowledging six areas of partial agreement with the expert witnesses supporting Gilead’s and the MOE’s position:
1. Symptoms are commonplace in the general population.
However, qualitative analysis is essential because there is qualitative complexity to most symptoms such as sleep disturbance, tinnitus, dizziness, nausea, cognitive difficulty, mood disturbance.
2. Economic Impact
Hosts of wind farms are less likely to complain, but being paid to do anything is likely to change behavior, including risk taking.
3. Lack of linear relationship between dBA exposure and complaints
However, dBA is an inadequate measure to capture all the qualities of IWT noise or the turbine signature noise. Special Acoustic Characteristics include ILFN content, intermittency, amplitude modulation, lack of night-time abatement, origin in quiet rural areas, etc.
4. Bias exists among critics of the wind industry.
However, examples may also be cited among wind energy supporters.
5. Adverse health effects secondary to living in the environs of wind turbines (AHE/IWT) are not part of mainstream medicine.
However, noise itself is long recognized as a health risk and is generally regulated.

6. Insufficient Evidence
There is insufficient evidence about the precise mechanism of harm to humans but not that adverse effects are occurring.
Dr. McMurtry then explained six domains where lack of agreement is evident:
1. “Toward a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines” (AHE/IWT).
The task of his case definition is to weight the unique elements of AHE/IWT to distinguish the clinical disorder from competing explanations. The common themes found in the reports of AHE are reflected in the first- and second-order criteria. There are few, if any, alternate explanations for the first- and second-order criteria. The third-order criteria serve the purpose of capturing the most commonly reported symptoms. Taken alone the third-order criteria are unhelpful in establishing a diagnosis.
2. Multiplicity of Symptoms
Symptom counts are not useful for making a diagnosis or ruling it out. Some complaints may be true and others inaccurate. In general, counting symptoms is not a useful exercise and ought not to be the focus of research.
3. Ottawa Charter vs. World Health Organization (WHO)
The WHO has not set aside its original definition of health but has appropriately emphasized the importance of health promotion.
4. Plausibility of Biological Mechanism for AHE/IWT
In 2010 the MOE’s commissioned report by HGC Engineering concluded: The audible sound from wind turbines, at the levels experienced at typical receptor distances in Ontario, is expected to result in a non-trivial percentage of persons being highly annoyed. Research has shown that annoyance associated with sound from wind turbines can be expected to contribute to stress-related impacts in some persons.
This finding appears to provide a plausible biological mechanism for complaints of persons being “highly annoyed,” which has been found by Eja Pedersen and others to produce stress, psychological distress, difficulty initiating sleep, and sleep disruption.
In 2011, a WHO study of Occupational Noise in Europe concluded that “a high level of annoyance caused by environmental noise should be considered as one of the environmental health burdens.”
5. Modelling and Monitoring
There is no reason to be confident in the modeling of IWT noise exposure. What is known is that at the current setbacks people are becoming seriously ill. The monitoring protocol does not include any health evaluation of exposed persons. Instead, only measurement of noise emissions is undertaken.
6. Age-related Changes accounting for complaints
The expert medical witnesses for the proponents have pointed out that many complaints may be related to the process of aging. But children are also reported as adversely affected with ear pain, disrupted sleep, and regression in development.
Finally, Dr. McMurtry reviewed the Bradford-Hill criteria for causation and explained their relevance to current and needed research. He said the criteria indicated a strong basis for the causal relationship between wind turbines and the reported adverse health effects.

Cross-examination of Dr. McMurtry
Gilead Power Lawyer Darrel Cruz asked Dr. McMurtry to consider a number of documents with conflicting evidence and dissenting opinions. In each instance Dr. McMurtry challenged the inferences and pointed out their limitations.
Ms. Davis presented a 2013 revision of an Ontario Agency for Public Health Protection (OAPHP) publication, and she called Dr. McMurtry’s attention to a table citing 40-45 dBA as the noise threshold for sleep annoyance.

Re-examination of Dr. McMurtry
Referring to the same OAHPP publication, Mr. Gillespie directed Dr. McMurtry to another section which stated that sleep annoyance from wind turbines has been reported below 40 dBA.
ERT Panel

Co-chairs Robert Wright and Heather Gibbs confirmed that final written submissions from all parties are due June 13 and oral reply is scheduled in Toronto on June 21, starting at 9:30 a.m. Teleconferencing will be available.