Wind turbines and radiation emitting devices act

Does operating a wind turbine contravene the federal Radiation Emitting Devices Act? I don’t think so. Here are four (alternative) reasons: First, in my view, a wind turbine is not a “device” within the meaning of this Act. In legal terms, physical things are divided into what we call “personal property” and “real property”. A “device” is a kind of personal property, a thing that can be moved from place to place. That is clearly reflected in section 8 of the Act, which gives an inspector authority to:

(a) examine any radiation emitting device found therein and take it away for further examination; and to
(b) open and examine any package that the inspector believes on reasonable grounds contains a radiation emitting device and take it away for further examination.

It is also reflected in the list of “devices” to which the regulations apply, listed below. All of these are movable pieces of equipment that an inspector can take away.

A wind turbine is not personal property but real property. It is affixed to, and legally part of, the land to which is attached. A wind turbine is no more a “device” than a house or a bridge is.

Second, a wind turbine does not emit the type of “radiation” to which this Act applies. As the regulatory impact statements relating to this statute have consistently stated,

“The Radiation Emitting Devices Regulations serve to protect Canadians from injury due to exposure to radiation by prescribing standards that regulate the design, construction and functioning of certain classes of radiation emitting devices.”

It is worth noting that the Canadian Nuclear Safety Commission regulates high strength radiation emitting devices under the Nuclear Safety and Control Act. The “as low as reasonably achievable” principle of minimizing unnecessary radiation, which is reflected in s. 4 of REDA, comes from nuclear safety principles, as shown in their Nuclear and Radiation Glossary.

While the definition of “radiation” is drawn broadly in REDA, it has primarily been used to refer to ionizing radiation since the Act and regulations were adopted many decades ago. McGill has an excellent description of the risks to which the Act is addressed. Similar statutes exist in many other countries, also to control ionizing radiation. Again, the list of devices in the Regulation clearly illustrates the scope of the Act. Wind turbines do not emit ionizing radiation that could injure Canadians.

In addition to the history, the cognate laws in other jurisdictions, and the list of devices in the regulations, there is a constitutional reason why the Act would not be interpreted as a general noise control statute. The federal government has no constitutional basis for regulating annoyance from the use of sources of noise, unless that noise comes from an activity under federal jurisdiction, such as aeronautics, railways, or grain elevators. The element of danger is essential to federal jurisdiction.

Third, the Act doesn’t apply to the use of a device, only to its sale, lease or import. This has been confirmed in the courts.

Fourth, the Act prohibits the sale of devices that emit more electromagnetic radiation than a prescribed standard. There is no standard of radiation prescribed for wind turbines under this Act. No one can breach a standard if no standard has been set. As to clause 4 b, based on the scientific findings of the Ontario Environmental Review Tribunal, upheld by the Divisional Court, I do not think that any court would find that wind turbines:

“create a risk to any person of genetic or personal injury, impairment of health or death from radiation, creates a risk to any person of genetic or personal injury, impairment of health or death from radiation by reason of the fact that it
(i) does not perform according to the performance characteristics claimed for it,
(ii) does not accomplish its claimed purpose, or
(iii) emits radiation that is not necessary in order for it to accomplish its claimed purpose.”

This is by no means a general prohibition against annoying noise, as some anti-wind activists argue. As you know, many things are sold in Canada that emit noise, to the immense annoyance of those affected; I think immediately of jet skis, leaf blowers, jackhammers and motorcycles, not to mention planes, trains and automobiles. I cannot imagine any court ruling that all of these are illegal, because they emit noise. In addition to the constitutional issue described above, this is simply not an interpretation of the Act that it can reasonably bear, given its history and use.

The radiation emitting devices that the Act does apply to are:

1. Television receivers, including video monitors and video display systems, being electronic appliances designed to display a picture or alphanumeric information, or both, after receiving signals through electromagnetic waves, cable or other means of transmission and including the cabinet or case of such appliances.
2. Dental X-ray equipment with an extra-oral source, being X-ray generating equipment that is designed primarily for the examination of dental structures in humans and that has an X-ray generating tube designed to be used outside the mouth.
3. Microwave ovens, being appliances or sets of components that are designed to supply microwave energy to material within a cavity.
4. A baggage inspection X-ray device, being an X-ray generating appliance designed primarily for the examination of carry-on baggage, or the examination of parcels, mail or similar items, including the X-ray generator, the X-ray detector and display and control systems.
5. A demonstration-type gas discharge device, being a device that (a) contains an electronic device in which glow discharges or X-rays or both may be produced by the acceleration of electrons and ions; and (b) is designed to demonstrate the production, properties or effects of glow discharges or X-rays, or the flow of electrons or ions.
6. Photofluorographic X-ray equipment being X-ray generating appliances designed primarily for the examination of the human chest and the recording photographically in reduced size of the image produced on a fluorescent screen.
7. A laser scanner, being a device that uses scanned laser radiation within the wavelength range of 400 to 1400 nanometres to decipher or generate codes represented by drawn or printed geometrical patterns.
8. A demonstration laser, being a device that consists of or incorporates a laser and that is primarily intended to be used for demonstrating the principles of optics in educational institutions.
9. Low Energy Electron Microscopes being electron-optical devices with an operating energy of 500 kilo-electron volts (keV) or less in which a beam of electrons, focused by means of electron lenses, is used to produce an enlarged image of a minute object on a fluorescent screen, photographic plate or any other detector-display system, including both the transmission and scanning types of devices.
10. High intensity mercury vapour discharge lamps, being lamps incorporating a high-pressure arc discharge tube with a fill consisting primarily of mercury, whether such lamps are described as mercury vapour lamps, metal halide lamps, self-ballasted lamps or otherwise when sold, but not including tungsten filament self-ballasted lamps.
11. Tanning equipment as defined in section 1 of Part XI of Schedule II.
12. Diagnostic X-ray equipment, being X-ray devices that are used for the examination of the human body, not including dental X-ray equipment with an extra-oral source that is subject to Part II of these Regulations, photofluorographic X-ray equipment, radiation therapy simulators and computer-assisted tomographic equipment.
13. Ultrasound therapy devices, being devices designed to generate and emit ultrasonic power at acoustic frequencies above 20 kHz for use in physical therapy.
14. Analytical X-ray equipment, being X-ray generating devices that contain an X-ray tube and that use X-radiation to determine the elemental composition, or examine the microstructure, of material.
15. Cabinet X-ray equipment, being X-ray generating devices, not including analytical X-ray equipment or baggage inspection X-ray devices, that have the X-ray tube permanently installed in a cabinet and are designed primarily for the examination of material, part or all of which is placed within the cabinet.