Chapter 6

Chapter 6

Committee view and recommendations on the issues raised in chapters 2–5

6.1        This chapter presents the committee's recommendations arising from the evidence of the previous four chapters. Clearly, there is significant overlap between issues of research into the impact of wind turbines on human health (chapter 2), the processes for planning wind farm developments and engaging with communities on these plans (chapter 3), and systems for monitoring and ensuring compliance (chapters 4 and 5). There is need for a national framework that incorporates and connects these issues.

6.2        This chapter presents the committee's vision of what this framework should look like. There are ten recommendations. The focus of these recommendations is to establish a robust regulatory framework which:

6.3        The recommendations in this chapter should be read in conjunction with the recommendations made in the committee's interim report. The recommendations made here are intended to give effect to the headline recommendations of the interim report.

The Independent Expert Scientific Committee on Industrial Sound

6.4        A key recommendation of the committee's interim report was the need for an independent scientific body to conduct multi-disciplinary, primary research into the possible impact of audible noise, infrasound and vibration from wind turbines on human health. The committee proposed establishing an Independent Expert Scientific Committee (IESC) on Industrial Sound. Importantly, the federal government has supported this recommendation, committing to establish an IESC on Industrial Sound by 1 September 2015.

Recommendation 1

6.5        The committee recommends that an Independent Expert Scientific Committee on Industrial Sound (IESC) be established by law, through provisions similar to those which provide for the IESC on Coal Seam Gas and Large Coal Mining Development.[1]

6.6        The provisions establishing the IESC on Industrial Sound should state that the Scientific Committee must conduct 'independent, multi-disciplinary research into the adverse impacts and risks to individual and community health and wellbeing associated with wind turbine projects and any other industrial projects which emit sound and vibration energy'.

The responsibilities of the IESC on Industrial Sound

6.7        The committee emphasises the need for the IESC on Industrial Sound to have clearly defined responsibilities. The following three tasks are fundamental to the IESC's role:

6.8        These responsibilities will enable the IESC to coordinate the process between Commonwealth and State authorities to identify the risks that new and existing wind turbines may pose to human health. It will ensure that the IESC sets and maintains appropriate acoustic standards and research methodologies to deliver sound advice for stakeholders.

Recommendation 2

6.9        The committee recommends that the federal government assign the Independent Expert Scientific Committee on Industrial Sound with the following responsibilities:

6.10      The committee foresees several lines of useful research inquiry for the IESC. Notably, there is an urgent need for research that determines:

The need for IESC advice before accrediting wind power operators

6.11      The committee proposed legislative amendments to ensure that the Clean Energy Regulator and the federal Minister for Health must seek the advice of the IESC on Industrial Sound before a wind farm operator is accredited to receive certificates. The committee recommends that provisions to this effect be inserted into Division 3 of the Renewable Energy (Electricity) Act 2000.

Recommendation 3

6.12      The committee recommends that the following provision be inserted into a new section 14 of the Renewable Energy (Electricity) Act 2000:

If the Regulator receives an application from a wind power station that is properly made under section 13, the Regulator must:

If the Independent Expert Scientific Committee on Industrial Sound finds that the wind power station does pose risks to human health, the Regulator must not accredit the power station until such time as the federal Minister for Health is satisfied that these risks have been mitigated.

6.13      The committee's interim report recommended that the National Environment Protection Council should establish a National Environment Protection (Wind Turbine Infrasound and Low Frequency Noise) Measure (NEPM). The NEPM must be developed through the findings of the IESC on Industrial Sound. The interim report recommended that the Commonwealth Government should insist that the ongoing accreditation of wind turbine facilities under the Renewable Energy (Electricity) Act 2000 in a State or Territory is dependent on the NEPM becoming valid law in that State or Territory.

6.14      To put effect to this recommendation, the committee makes a further recommendation to insert a provision into the Renewable Energy (Electricity) Act 2000 (REE Act) to make compliance with the proposed NEPM a condition of eligibility for RECs.

Recommendation 4

6.15      The committee recommends that a provision be inserted into Renewable Energy (Electricity) Act 2000 stipulating that wind energy generators operating in states that do not require compliance with the National Environment Protection (Wind Turbine Infrasound and Low Frequency Noise) Measure (NEPM) are ineligible to receive Renewable Energy Certificates.

The need for the IESC's work to be reflected in health policy advice and research

6.16      The committee believes that the IESCs work—setting national acoustic standards for audible noise, infrasound and vibration, and its advice and research into existing and proposed industrial projects—should be carefully considered by federal and state health Ministers and officials and the National Health and Medical Research Council. It is important that there is a formal mechanism through which the work of the IESC can be incorporated into the policy advice provided to federal and state health Ministers.

6.17      The Environmental Health Standing Committee (enHealth) is responsible for developing national advice on environmental health matters to the Australian Health Ministers' Advisory Council.[2] enHealth is based on 'significant collaboration and consultation with Federal and state and territory agencies, departments and organisations that deal with environmental health matters'.[3] Its membership includes representatives from Commonwealth, State and Territory health departments, the New Zealand Ministry of Health and the National Health and Medical Research Council. enHealth regularly engages with the federal Department of Environment as well as local government associations and non-government organisations such as Environmental Health Australia. It meets face-to-face twice a year, generally at the beginning and end of the calendar year. It also holds regular videoconference and teleconference meetings.[4]

6.18      The committee believes that a body with enHealth's remit and coordination is well-placed to coordinate the advice of the IESC. It is a useful forum to inform and involve key decision-makers of the IESC's work, including federal and state health Ministers and officials, the NHMRC, the federal Environment Department and local government associations.

6.19      The committee envisages that the IESC on Industrial Sound should formally instruct enHealth to coordinate the flow of information to the relevant State authorities—Health, Planning and the EPA. It must relay and discuss its advice and research priorities relating to industrial projects and human health. The IESC should not only keep enHealth informed of its work in setting acoustic standards and assessing industrial project proposals, but should engage enHealth in conducting and seeking funding for research priorities.

Recommendation 5

6.20      The committee recommends that the Independent Expert Scientific Committee on Industrial Sound (IESC) establish a formal channel to communicate its advice and research priorities and findings to the Environmental Health Standing Committee (enHealth). The IESC should explain to enHealth members on a regular basis and on request:

National Wind Farm Guidelines

6.21      The interim report recommended that the Commonwealth Government establish National Wind Farm Guidelines. Again, the committee is pleased that the federal government has agreed to seek agreement from the States and Territories to implement National Wind Farm Guidelines as recommended by the IESC.

6.22      The National Guidelines will outline best practice standards relating to planning processes and operation of wind energy facilities. They do not seek to interfere with State planning and development frameworks and processes. However, the committee did recommend in its interim report that eligibility to receive Renewable Energy Certificates should be made subject to general compliance with the National Wind Farm Guidelines and specific compliance with the NEPM.

6.23      The committee notes the wind farm auction rating system used by the ACT Government to give 20 per cent weighting to the community engagement strategies of a proposal, as outlined in chapter 3.[5] This committee believes that such a system to reward best practice operators could work in tandem with systems that sanction wind farm operators that breach minimum standards.

6.24      The committee believes the proposed licencing system would work well if the conditions for holding and retaining the licence were linked to compliance with National Guidelines' standards on sound, buffer zones and community engagement (among other matters).

Recommendation 6

6.25      The committee recommends that the proposed Independent Expert Scientific Committee on Industrial Sound develop National Windfarm Guidelines addressing the following matters:

6.26      As per recommendation 4 of the committee's interim report, eligibility to receive Renewable Energy Certificates should be made subject to general compliance with the National Wind Farm Guidelines and specific compliance to the National Environment Protection Measure.

Enhancing the powers of the Clean Energy Regulator

6.27      The committee believes there is a need for legislative change federally to strengthen the powers of the Clean Energy Regulator. The federal government must establish a stricter framework within the Renewable Energy (Electricity) Act 2000 (REE Act) and the Renewable Energy (Electricity) Regulations 2000. It is not acceptable that wind farm operators can continue to receive the financial benefits of the RET scheme while failing to meet planning approval conditions. Compliance with the proposed National Wind Farm Guidelines is only part of the solution.

6.28      Section 8 of the REE Act lists various grounds for suspending a power station's registration. Subsection 30D lists factors that may warrant the suspension of a power station. The committee recommends that the Australian Government amend the REE Act and/or the REE Regulations to:

Recommendation 7

6.29      The committee recommends that the Australian Government amend the Renewable Energy (Electricity) Act 2000 and the Renewable Energy (Electricity) Act Regulations 2000 to enable partial suspension and point in time suspension of renewable energy certificates for wind farm operators that are found to have:

6.30      The committee recommends that the Clean Energy Regulator cannot accredit a power station until it is wholly constructed, fully commissioned and all post construction approval requirements have been met.

Shifting responsibility to State Environment Protection Authorities

6.31      The committee strongly supports efforts to shift responsibility for monitoring and compliance to State Governments. The State EPAs should perform this role and they should seek the advice of the IESC to do so.

6.32      The current state of affairs in Victoria highlights the need for this shift. It is anomalous that the Victorian State Government is the decision-maker on compliance matters but does not conduct any monitoring or compliance activities. Local councils rightly complain that the Victorian Government does not have the operational expertise to properly judge whether their decision is sound.

6.33      The committee draws attention to the New South Wales experience. In June 2013, responsibility for regulating wind turbines was shifted from local councils to the State EPA. The State Government explain the rationale for this decision as follows:

As the regulatory work for the ARA [appropriate regulatory authority] of large-scale wind farms is likely to increase, the Government decided to transfer the ARA responsibility under the POEO Act [Protection of the Environment Operations Act 1997] from local councils to the EPA. As the State's dedicated environmental regulator, the EPA is better placed to deal with complex noise issues, has the necessary expertise and has a robust regulatory framework for regulating large-scale wind farms.[6]

6.34      The committee considers that both the decision-making capacity and the operational capacity for monitoring and compliance should rest at a State level. Should the State EPA find an operator non-compliant, it is important that the authority has the financial resources to be able to take legal action against the operator. It would be of concern if local councils were expected to take multinational companies to court.

6.35      The committee has no qualms with arrangements whereby State EPAs sub-contract monitoring responsibilities to the local Councils. In certain cases, this may be a prudent use of State resources, particularly in the short-term when there will be operational expertise within local councils. It is important, however, that State EPAs develop operational competence in compliance and monitoring. Further, if they do engage in sub-contracting with local councils, it must be clear that the State Government is accountable to the public through the Parliament.

6.36      The committee reaffirms the importance of recommendation 7 in its interim report in which it stated that 'the data collected by wind turbine operators relating to wind speed, basic operation statistics including operating hours and noise monitoring should be made freely and publicly available on a regular basis'.[7] In evidence to the committee, Dr Les Huson, acoustician noted that:

I cannot see why that information should not be made available. It is my view that withholding that information is detrimental to an open process.[8]

Publication of this data would allow third parties to examine correlations between reported illness and the operation of the turbines. Whilst correlation does not always equate with causation, the availability of the data would allow the scientific community to conduct independent compliance assessments.

Recommendation 8

6.37      The committee recommends that all State Governments consider shifting responsibility for monitoring wind turbines in their jurisdiction from local councils to the State Environment Protection Authority.

A fee-for-service licencing system

6.38      Chapter 4 of this report discussed the Municipal Association of Victoria's (MAV) suggestion of a fee-for-service licencing system. The committee believes that while this is ultimately an operational matter for State and Territory Governments, the idea has real merit.

6.39      As this report has discussed in some detail, the wind sector in Australia is suffering from a crisis in community confidence. There is deep scepticism within many local communities about the way in which wind operators are monitored and the complicit role of State Governments in fudging results that find compliance. Local councils are recognised not to have the resources or the expertise to do the job asked of them.

6.40      A properly administered licencing system, paid for by wind farm operators, would go a long way to resolving this mistrust and cynicism. As MAV has indicated, a licencing system would also offer regulatory certainty for the wind farm industry, equity between different types of electricity generators and remove the noise compliance and monitoring impost on councils.

6.41      A licence would be awarded to an operator when upon meeting planning approval conditions, sound standards and community engagement and consultation standards. If an operator is found not to be compliant with these standards, State EPAs should have the capacity to suspend or cancel a licence.

The New South Wales licencing system

6.42      The committee believes that the wind farm licencing system established in New South Wales as part of the June 2013 amendments to the State Protection of the Environment Operations Act 1997 is a good template for other jurisdictions to consider. In New South Wales, large-scale wind farms have been brought within the State EPA's existing environmental licencing framework. As the State Government explained:

Bringing large-scale wind farms into the EPA's established environment protection licensing regime is the best approach for EPA regulation of the sector. The licensing regime is well established, strong, flexible and fit-for-purpose. Licensing provides an appropriate check-and-balance to ensure that the growing wind farm sector meets appropriate environmental performance requirements.[9]

Environment protection licences are a more flexible and effective tool for regulating environmental issues compared to development consents. However, the consent authority (usually the Department of Planning and Infrastructure (DP&I)) is also able to respond if it is necessary and warranted.[10]

6.43      The State EPA's approach to regulating these wind farms is consistent with its approach to regulating all other industries. The conditions of a wind operator's environment protection licence must be 'substantially consistent' with the development consent, as required under Part 4 of the Environmental Planning and Assessment Act 1979. Further:

Following planning approval, the EPA cannot refuse to issue an environment protection licence if it is necessary for carrying out the approved SSD [State significant development] and the licence must be substantially consistent with the development consent. Importantly for wind farms, this means that noise limits prescribed in the development consent will be transferred directly into the environment protection licence.[11]

6.44      Regular licence renewal 'provides another opportunity for the EPA to address any environmental performance issues that may have arisen since the licence was issued, in consultation with the licensee and other stakeholders'.[12] However, licences must be reviewed annually, not every five years as is currently the case in New South Wales. It is important that the conditions of the licence are flexible so as to incorporate the scientific findings—and appropriate regulatory response—of the IESC.

6.45      The NSW licencing system is supported through administrative fees payable by wind farm operators based on their annual generating capacity.

Recommendation 9

6.46      The committee recommends that State Governments consider adopting a fee-for-service licencing system payable by wind farm operators to State Environment Protection Authorities, along the lines of the system currently in place in New South Wales.

Oversight of the IESC and State Environment Protection Authorities

6.47      The committee recommends in this report a tiered regulatory system. At a national level, the IESC will be empowered, among other things, to develop national sound standards from wind turbines and National Windfarm Guidelines. State Governments will have responsibility for monitoring and enforcing these standards and guidelines.

6.48      It is important that State Governments put in place a framework that requires wind farm operators to act in accordance with the proposed National Wind Farm Guidelines. If there is non-compliance with permits, there must be immediate, mandatory and appropriate consequences which could include immediate suspension of Large-scale Renewable Energy Target accreditation and injunctions to stop operating the power stations until non-compliance is rectified.

6.49      The committee is concerned that State governments have a poor track record in wind turbine compliance matters. In the past, State Governments have allowed power stations to operate irrespective of the power station's status of compliance with the terms of conditionally issued consent. Box 4.2 in chapter 4 notes the case of the Victorian State Government's failure to enforce compliance at the Waubra wind farm.

6.50      The committee recognises that if significant responsibilities for advising and regulating on the operations of wind turbines are assigned to the IESC and the State EPAs, it is important to have systems in place that hold these bodies accountable.

6.51      By statute, it is intended that the IESC on Industrial Sound will be answerable to the federal Minister for the Environment and the federal Minister for Health. The Ministers and the members of the IESC will also be answerable to the Parliament.

6.52      In addition, the committee recommends that the federal Department of the Environment prepare a quarterly report—to be tabled in the federal parliament—which records the wind farm monitoring and compliance activities of the State EPAs. This process should be coordinated through the IESC on Industrial Sound with secretarial assistance from the Department of the Environment.

Recommendation 10

6.53      The committee recommends that the federal Department of the Environment prepare a quarterly report collating the wind farm monitoring and compliance activities of the State Environment Protection Authorities. The report should be tabled in the federal Parliament by the Minister for the Environment. The Independent Expert Scientific Committee on Industrial Sound should coordinate the receipt of State data and prepare the quarterly report. The Department of the Environment should provide appropriate secretarial assistance.

The National Health and Medical Research Council

6.54      This report has noted various shortcomings in the way that the NHMRC has conducted its desktop research on the issues of wind turbines and human health. Chapter 2 noted that the Council's 'systematic review' had particular flaws, not the least of which was its selective consideration of primary evidence.

6.55      The NHMRC's advice is clearly important in how regulatory settings have developed at local, State and national level in Australia. Most notably, the Council's position that infrasound emitted from wind turbines is at levels too low to harm human health has meant that the issue of infrasound has not been considered by regulators. Companies, turbine manufacturers, peak medical associations, local councils and state governments all refer to the NHMRC's advice. As the NHMRC has done the 'research', they argue, there is no need to worry about anything more than complying with the existing standards. The NHMRC sets the bar both in terms of compliance and in terms of duty of care.

6.56      The situation needs to change. The establishment of the IESC on Industrial Sound will be an important first step. As mentioned earlier, the NHMRC, through its membership of enHealth, will be kept continually informed of the IESC's work on wind turbines and human health. The committee believes that the NHMRC could undertake to fund and commission research that the IESC believes is necessary. The NHMRC should also continue to monitor research findings outside of the work of the IESC.

Recommendation 11

6.57      The committee recommends that the National Health and Medical Research Council (NHMRC) continue to monitor and publicise Australian and international research relating to wind turbines and health. The NHMRC should also fund and commission primary research that the Independent Expert Scientific Committee on Industrial Sound identifies as necessary.

The need for political cooperation and corporate endorsement

6.58      The recommendations in this chapter offer a roadmap for what should be done to improve the regulatory framework for wind turbines in Australia and which bodies should be responsible for making this system work. The committee reiterates, however, that these reforms require political will. It is, of course, pleased that the federal government has endorsed the recommendations made in its interim report. The recommendations in this chapter will strengthen and give effect to this framework.

6.59      The committee is mindful that recommendations 8 and 9 of this report are directed to State Governments. These two recommendations are critically important because they give effect to broader initiatives such as the proposed National Wind Farm Guidelines with the IESC's national acoustic standards and buffer zones. Without an efficient and effective State-based system of planning, monitoring and compliance, the federal framework of national guidelines supported by the work of the IESC and the CER will have little impact.

6.60      There is a question of what should happen if the States fail to cooperate and implement a monitoring and compliance system that meets the national guidelines. One solution is for the federal government to assume responsibility of monitoring and enforcement. This could be done either by empowering the IESC, or by legislating to establish a second statutory body for this purpose. The government could use the Corporations Power under Section 51(xx) of the Constitution. This head of power has been interpreted broadly such as to empower the federal government to make laws regulating and controlling the activities of corporations formed within the limits of the Commonwealth.

Recommendation 12

6.61      The committee recommends that under circumstances where the regulatory framework provided for pursuant to recommendations 8 and 9 cannot be enforced due to a lack of cooperation by one or more states, a national regulatory body be established under commonwealth legislation for the purpose of monitoring and enforcing wind farm operations.

6.62      However, the committee believes that there will be sufficient political goodwill across the three tiers of government to embrace and implement these reforms. This will be forged through cooperation and information-sharing between the three tiers. Recommendations 2, 3, 5 and 6 (above) are intended to formally promote this cooperation. Local and State governments should be encouraged to share their experiences and their resources in issues of planning and monitoring wind farm developments. The federal and State governments should seize the opportunity to put in place a national framework for developments that are already occurring at State level.

6.63      It is also important that wind farm operators themselves support the agenda set out in this chapter. The regulatory framework that has been proposed by the committee will greatly enhance the reputation and standing of the wind sector in the community. It will show that wind companies are prepared to be transparent in their dealings and responsive to genuine community concerns. Wind companies will benefit by not only spending less time handling hostile actions from community groups, but from broader financial rewards that an enhanced corporate reputation will offer.

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