Environmental Appeal Board

Transcription

1 Environmental Appeal Board APPEAL NO. 97-HEA-27 In the matter of an appeal under section 8 of the Health Act, R.S.B.C. 1996, c BETWEEN: John and Carolyn Klassen APPELLANTS AND: Environmental Health Officer RESPONDENT AND: Cidalia Wensley PERMIT HOLDER BEFORE: A Panel of the Environmental Appeal Board Toby Vigod, Chair DATE OF HEARING: September 16, 1997 PLACE OF HEARING: North Saanich, B.C. APPEARING: For the Appellants: Christopher S. Lott, Counsel For the Respondent: For the Permit Holder: Robert Bradbury Kevin Wensley APPEAL This is an appeal against a decision of Mr. Erwin Dyck, Environmental Health Officer (the EHO ) with the Capital Health Region, to issue a permit for an on-site sewage disposal system for Lot 1, Plan 19206, North Saanich District (the Lot ). The Environmental Appeal Board has authority to hear this appeal under section 11 of the Environment Management Act and section 8(4) of the Health Act. The Board, or a panel of it, may vary, rescind or confirm the decision of the EHO. The Appellants are seeking an order to rescind the permit. BACKGROUND The Permit Holder, Cidalia Wensley, owns the Lot which is located on Clayton Road in North Saanich, B.C. It is a one acre lot which is currently undeveloped. On June 12, 1997, Mrs. Wensley applied for a sewage disposal system permit to service a proposed three-bedroom house. The estimated daily flow is 300 gallons. This application for a sewage disposal system is the first permit application for this Lot. However, in 1993, percolation tests of the soil were performed on the Lot by the engineering firm, J.E. Anderson and Associates, but the percolation results were generally greater than 30 minutes per inch and were considered unacceptable at the time.

2 97-HEA-27 Page 2 The system proposed for the Lot includes a 900 gallon septic tank with 360 feet of 1.25 inch pipe. The proposed absorption field is located in the north-west corner of the Lot adjacent to a ditch running along the northern property boundary. Effluent would be distributed through the pipes and into a raised sand-mound field (60 feet x 11.5 feet) of C-33 sand. The site plan shows a 2 foot distance from the bottom of the drain rock, through the sand, to the existing ground below. A sand-mound field is incorporated into the design since rains cause water to stand in areas around the field during the wet seasons, and the native soils generally have slow percolation rates. Because of the presence of storm water standing in the field area, the site plan attached to the permit application provides for an interceptor drain to be constructed in order to divert water away from the field. The proposed drain would run in a southerly direction from the north end of the property down the east side of the disposal field to a point where it cuts diagonally across the property toward the western property line. On June 18, 1997, the EHO approved the permit application under section 7 of the Sewage Disposal Regulation. Section 7 allows the EHO to exercise discretion in approving permits where there are shallow native soils or poor percolation conditions. However, the EHO must ensure that the system will safeguard public health and that the system complies with all the other regulatory requirements. If the system is a conventional septic tank system approved under section 7, then the requirements of Schedule 2 of the Regulation apply to the permit. If the system contains a package treatment plant, then Schedule 3 of the Regulation applies. In this case, the Respondent added the following conditions to the proposed system before approving the permit under section 7: Treatment and disposal facilities must be engineer: Supervised, certified. Alternative method - sand mound. Pump/pump chamber required. Pressure distribution. 2.0'-2.5'/.33 sand required. Install an interceptor drain. Final system plan required. At least 180' disposal pipe required on top of infiltration bed. Filter/screen required. Care must be taken to protect the soil in the area of the sand mound and to prepare it properly. The Permit and site plan were posted in accordance with section 3.3 of the Regulation. In July of 1997, the Klassens, whose property abuts the Lot at its eastern boundary, appealed the issuance of the permit to the Environmental Appeal Board. On July 30, 1997, the Respondent raised a formal objection to the appeal asking the Board to dismiss the appeal without a hearing. On August 14, 1997, the Board overruled the objection and an oral hearing was scheduled. In its August 25, 1997 Statement of Points to the Board, the engineer for Mrs. Wensley states that the owners of the property have accepted our advice to incorporate a package treatment plant into the design. Proper treatment, a well constructed field which achieves the necessary vertical separation and correct lot grading will ensure that we are not creating a health hazard.

3 97-HEA-27 Page 3 On August 27, 1997, the Permit Holder had a revised site plan prepared, which incorporated the true northern property line, the percolation hole locations, and a package treatment plant. These changes to the design of the system had not been added as conditions of the permit prior to the hearing. However, both the Permit Holder and the Respondent agree that the revised site plan is the plan that should be implemented and that this plan would include a package treatment plant. Therefore, the Panel has decided that, for the purposes of assessing the permit, the revised site plan containing the package treatment plant should replace the site plan attached to the permit. In evaluating the revised site plan, the Panel notes that Schedule 3 of the Regulation becomes the governing Schedule for the permit because the system includes a package treatment plant. The Appellant submits that there are several problems with the Lot such that a permit should never have been issued and should, therefore, be rescinded. The Appellant appeals the permit based on the following grounds: the percolation tests do not comply with the Regulation and the percolation rates were too slow; the absorption field setbacks from the property line do not comply with the Regulation; saturated soils and excess storm water often exist in the area of the absorption field in contravention of the Regulation, and the proposed drainage system would not effectively drain the area; a possible health hazard may occur if the sewage disposal system is installed as set out in the permit. The Respondent argues that the proposed system complies with the permit and that the permit contains sufficient conditions to ensure public health is safeguarded. The Panel viewed the site on September 16, All parties attended the site visit. ISSUES The main issues raised in the appeal are as follows: 1. whether the percolation tests, in terms of percolation rates, test hole locations, and testing procedures, comply with the Regulation; 2. whether the setback distances from the absorption field to the property lines and the interceptor drain meet the minimum setback distances required by the Regulation; 3. whether the permitted drainage system adequately manages storm water and protects the absorption field from standing water as required by the Regulation; 4. whether the permitted sewage disposal system ensures the protection of public health as required by the Regulation.

4 97-HEA-27 Page 4 The Panel will address each of these issues in turn. DISCUSSION AND ANALYSIS 1. Whether the percolation tests comply with the Regulation in terms of percolation rates, test hole locations, and testing procedures Generally, a sewage absorption field under Schedule 2 or 3 of the Regulation must not have soil percolation rates exceeding 30 minutes per inch (section 16 under Schedule 2 and section 12 under Schedule 3). However, section 7 of the Regulation makes this 30 minute requirement discretionary and enables the EHO to permit a field with slower percolation rates if he or she is satisfied that the public health is safeguarded. The Appellant is concerned that the soils on the Lot do not percolate properly. In support of this argument, she refers to the 1993 percolation rates for the Lot which were in excess of 30 minutes per inch and were considered unacceptable for the installation of a sewage disposal system. The Respondent argues that the percolation rates in the area of the absorption field are acceptable for a sand-mound field. The Respondent states that although some percolation tests were performed in 1993, the permit application is based on percolation tests performed in May, These 1997 percolation tests were done in a different location - in the north-west corner of the Lot - compared to the 1993 tests which were performed on the eastern side of the Lot. Philip Buchanan of J.E. Anderson and Associates, the engineer who performed the 1997 tests for the landowner, testified that the percolation test results for holes numbered 1, 2, 5, and 6 were under 30 minutes per inch. Although holes numbered 3 and 4 had respective percolation rates of 39 minutes and 41 minutes, Mr. Buchanan claims these rates are reasonable for a sand-mound field. The Respondent confirmed that he was satisfied with the rates. The Respondent testified that the tests were representative of the proposed sand-mound area and that holes numbered 1 and 2 were located within the field. He claims that 18 inches of soil, which the Capital Health Region s Sand Mound Guidelines require, existed for all the holes and that the soil conditions were acceptable to support a sand-mound disposal system. The Appellant claims the permit is deficient because percolation holes were not dug at both ends of the sewage disposal field as required by section 1(b)(ii) of Schedule 1 of the Regulation. The Respondent agrees that holes were not dug in both ends of the field. However, he stated that the 1997 percolation holes numbered 1, 2 and 3 on the west side of the field indicated the soil was suitable to absorb the effluent with a sand-mound system on top of the soil. When considering the tests performed by Mr. Buchanan in 1997 and 1993, the Panel finds that a sufficient number of percolation test holes existed in and around the field. The Panel notes that both Mr. Buchanan and the Respondent explained that while most of the 1993 percolation holes were to the east of the field, the two holes with percolation rates below 30 minutes per inch were in the area of the field.

5 97-HEA-27 Page 5 The Appellant also submits that the percolation holes were not pre-soaked for four hours before testing as the Regulation requires for holes containing considerable amounts of silt or clay. Mr. Buchanan testified that all the holes contain differing amounts of silt. Mr. Buchanan, who performed the tests, admits that he did not pre-soak the percolation holes. However, he testified that the tests had probably been done after heavy rains, and it was possible that there was some moisture in the soil and the bottoms of the holes would be somewhat wet. The Respondent admits that he assumed the percolation holes had been pre-soaked before approving the permit, and therefore was not aware that pre-soaking had not taken place. On the evidence before it, the Panel finds that the soils in which the percolation test holes were dug contain considerable amounts of silt and some clay. The Panel finds that the fact percolation test holes were tested when there was possibly some moisture in the soil does not compensate for the fact they should have been presoaked. Testing even immediately after heavy rains does not replicate soaking holes with considerable amounts of clay or silt for 4 hours before testing. Presoaking attempts to simulate saturated soil conditions. Percolation tests conducted after such pre-soaking rarely produces the same percolation rates as tests performed when the bottoms of percolation holes are wet due to rainfall. Although not raised at the hearing, the Panel notes that half of the holes do not comply with section 1(b)(ix) of Schedule 1 of the Regulation. This section requires that the holes be filled with water at least twice, and that the last two rates do not vary more than 2 minutes per inch. J.E. Anderson s 1997 percolation tests show that two percolation holes were only timed once and that another hole did not have two percolation rates within 2 minutes of each other. Due to the lack of presoaking and improper testing procedure, the Board is not satisfied that the test results are accurate. Without pre-soaking, most of the holes are slightly below the 30 minute rate. Since previous percolation testing generally exceeded 30 minutes (although on the other side of the Lot), and since clay and silt exist where the 1997 tests were performed, the Panel finds that percolation rate of the soil on this marginal Lot should have been tested with greater care and in accordance with the Regulation. The percolation holes should have been pre-soaked, and they should have been filled at least two times until two percolation rates within 2 minutes of each other were achieved. The Panel notes that Mr. Buchanan himself testified that he did not follow the percolation testing procedures as described in Schedule 1 of the Regulation. The procedures should have been followed more carefully. 2. Whether the setback distances from the absorption field to the property lines and the interceptor drain meet the minimum setback distances required by the Regulation Section 14 of Schedule 3 establishes the minimum absorption field setback distances for a package treatment plant disposal system: An absorption field shall be located not less than

6 97-HEA-27 Page 6 b) 3 m (10 ft.) from a parcel boundary c) 3 m (10 ft.) from an interceptor drain The Appellant argues that the location of the sewage disposal field, as outlined on the site plan attached to the permit, as well as the revised site plan, was in violation of the Regulation because it had inadequate setbacks from the northern and western property lines and from the interceptor drain. The Appellant informed the Panel that on the north side of the Lot, the Municipality of North Saanich had taken 13 feet off the property line of everyone on Clayton Road. The site plan on the Notice does not illustrate the true property line correctly. When the 10-foot setback from the actual property line is added, which is required by section 14(b) of Schedule 3 of the Regulation, the Appellant claims that the location of the disposal field should be further south than what the site plan attached to the permit, and the revised site plan, describe. One of the effects of moving the field south would be that percolation holes numbered 1 and 2 would no longer be in the disposal field area. In addition to the northern setback, the Appellant argues that there should be another 10-foot setback from the property line on the west side of the permitted disposal field which the site plan also does not properly illustrate. Moreover, when this setback is added, the Appellant submits the disposal field would be too close to the interceptor drain proposed to run down the east side of the field. Consequently, there would no longer be the 10-foot setback from the interceptor drain, which is required by section 14(c) of Schedule 3 of the Regulation. Finally, the Appellant submits that, if the field has to be moved to comply with the Regulation, there would not necessarily be the 18 inches of native soil necessary for the proper operation of the sand-mound absorption field; it is also probable that percolation problems would exist with a new field location. In terms of the northern property line, the Respondent acknowledges that the revised site plan created by Mr. Buchanan reflects the correct northern property line and the corresponding new field location further south. He states that the revised site plan should replace the original site plan in the permit and that it incorporates an appropriate setback. Regarding the setback from the property line on the west side of the property, the Respondent testified that the field did not need to be moved further east. He referred to section 18 of Schedule 2 of the Regulation which requires the 10-foot property line setback to be measured from the "trench wall" of the disposal system. He argues that the trench wall on a conventional disposal field is the equivalent to the edge of the infiltration bed on a sand-mound system, not the edge of the sand. Since the infiltration bed is approximately 12 feet from the property line, the Respondent asserts that the field does not need to be located further east on the Lot. The Panel finds that the permitted disposal field does not comply with the setback requirements of the Regulation. The field needs to be moved further south and further east to provide setbacks measured from the edge of the sand mound. The Respondent relies on an interpretation of section 18 of Schedule 2 for determining

7 97-HEA-27 Page 7 the measurements from the property line to the field (i.e. the edge of the trench wall). However, as a package treatment plant has been proposed, the correct Schedule to apply in this case is Schedule 3 and not Schedule 2. The intent of the setbacks is to protect neighbouring properties from potential contamination from a sewage disposal system. The setback requirements of Schedule 3 are in section 14, but unlike section 18 from Schedule 2 which states all measurements shall be from the nearest trench wall, there is no mention in section 14 of where on the field the measurement points should be. Section 14(b) says an absorption field shall be located not less that 3 m (10ft.) from a parcel boundary. Section 14 does not refer to the edge of the trench wall as the measuring point. Rather, it simply refers to the location of an absorption field, which implies the entire field. The Panel does not accept the interpretation that the boundaries of the field equate to the boundaries of the infiltration bed. The infiltration bed is only part of the field, and it is in the field s centre. In Driedger on the Construction of Statutes (Third Edition), Ruth Sullivan elaborates on the implied exclusion principle of statutory interpretation saying: Where a provision specifically mentions one or more items but is silent with respect to other items that are comparable, it is presumed that the silence is deliberate and reflects an intention to exclude the items that are not mentioned (p.168). Since measurements from the trench wall are specifically mentioned in section 18, the absence of any reference to trench walls in the similar section 14 of Schedule 3 implies that the Legislature intended to exclude the trench walls as measuring points for an absorption field. The Panel concludes that an absorption field should have an ordinary meaning and include the outer edge of the material constituting the field. In this case, the sand mound is the material constituting the edge of the field. The Respondent also made statements consistent with this finding. He stated that percolation test holes numbered 2 and 3, which are on the edge of the sand mound, were within the sand-mound area and were relevant to the design of the system. In other words, the edges of the sand were part of the field system. In sum, the distance from an absorption field should be measured from the edge of the actual absorption field, which would be the edge of the sand mound. To comply with section 14(b) of Schedule 3, the Panel concludes that the field must be moved east so that at least a 10-foot setback will exist between the western property boundary and the edge of the sand mound. By moving the field to the east, the Panel notes that the field also needs to maintain the setback from the interceptor drain on the east side of the field (i.e. 10 feet between the edge of the sand to the drain). Thus, the interceptor drain on the east side of the field could not be in the location proposed on the permit. It would need to be moved further to the east. In terms of the northern boundary, the Panel finds that the permitted field needs to be moved further south to accommodate the setback from the property line. The Respondent admits that the disposal field needs moving further south. However, the new position described in the revised site plan is not far enough south since the revised site plan incorrectly equates the edge of the field with the edge of the infiltration bed. The Respondent acknowledges that even in the revised site plan, sand would extend into the 11 foot strip of land between the northern property line

8 97-HEA-27 Page 8 and the infiltration bed. Therefore, the field must be moved so sand is not within the setback but is at the edge of the setback. The Panel finds that the field should be moved south so that the 10-foot setback to the northern property line is measured from the edge of the sand. 3. Whether the permitted drainage system adequately manages storm water and protects the absorption field from standing water as required by the Regulation The Appellant argues that the disposal field needs a proper drainage system for storm water management since rains cause saturated soils and standing water in and around the disposal field. The Appellant, who owns land on the east side of the Lot, explained that the soil on her land drained poorly and that she only had to dig 2-3 inches in the soil to hit water. She stated that there is often standing water in the area around the permitted field, especially from October to April. Constance Starr, a land owner close to the west side of the Lot, also testified that she had seen standing water on the Lot in the area of the proposed field. Many of the arguments about drainage on the Lot focused on the proposed interceptor drain, which was illustrated on the site plan as draining to the southern part of the property. The Appellant submits that the interceptor drain has not been approved by the District of North Saanich and would not work because there was nowhere for the water to go at the back of the Lot. Mr. Thomas Parry, who is a municipal engineer for the District of North Saanich, supported the Appellant s claim. He testified that the drainage Construction Permit, which the Lot owner and the EHO thought was approved, was not actually an approved permit since no drainage infrastructure existed in the southern part of the Lot to take any water. Mr. Parry provided the Panel with a copy of the drainage permit application marked cancelled with the notation that the Permit is not to be issued until drainage design submitted and approved. Without a viable drainage system for the field, the Appellant argues that the storm water would interfere with the effective operation of the disposal system and create a hazard to human health. The Respondent admits that storm water is a general concern around the disposal field and that it needs to be diverted away from the field. Mr. Buchanan, the disposal system engineer, also admitted there is a standing water problem in the area of the field. However, the Respondent argues that the interceptor drain proposal provides sufficient storm water drainage in the area of the field to satisfy this concern with storm water. The Respondent stated he was satisfied with the proposed interceptor drain running to the south of the Lot even though the final construction approval was ultimately an issue between the Construction Permit applicant, and the District of North Saanich. In the event of the southern drainage system not being approved, the Respondent stated he was satisfied that other drainage systems could be constructed to remove the storm water. Mr. Buchanan testified that he had three other possible drainage ideas for the field. Of all the drainage options, Mr. Buchanan s preference was for drainage into the ditch on the north side of the Lot. Mr. Buchanan described, without any written design, the possibility of constructing a drain 18 to 24 inches under the surface of the land. It would begin on the east side of the field and run north, against the slope of the land, to the ditch.

9 97-HEA-27 Page 9 In response to the northern drainage proposal, the Appellant raises the concern that the ditch could back up and prevent the drainage from operating. The proposed field abuts the ditch. In cross-examination, Mr. Buchanan admitted that if the ditch was full of water then the drain would back-up. The Panel finds that standing water and saturated soils is a problem on the Lot around the field area. There is no dispute on this point. The Panel notes that section 21 of Schedule 3 of the Regulation requires a sewage disposal system to be located and constructed so that it is protected from storm water. However, the permitted drainage system running to the south of the Lot does not adequately protect the field from storm water. The District of North Saanich had not, in fact, approved the construction of the southern drain because of the unresolved issue of where water would drain to in the southern part of the Lot. As Mr. Parry explained, no drainage system exists in the back part of the Lot to drain the water. While Mr. Buchanan suggested that a drainage system running to the north of the Lot and into the ditch may be possible, the Panel is unable to satisfy itself that the proposed system will meet the regulatory requirements. No written design exists for this drainage option. There remains the possibility that the drainage could backup when the ditch is full. As Mr. Buchanan explained, there is approximately 2 feet difference in elevation between the bottom of the ditch and the point of origin of the proposed northern drain located near percolation test hole number 6. This northern drain would also have to run approximately 160 feet to reach the ditch. Since the ditch is no more than 2 feet deep, the Panel is concerned that the ditch could fill-up with storm water, and as Mr. Buchanan admitted, back-up the drainage so that surface water may enter the disposal field area. A further setback concern the Panel has is that the sand on the east side of the relocated field must be 10 feet away from the drainage location. This setback means that the proposed drain location in both the original site plan and the revised site plan will also have to be moved further east. The Panel finds that a written design for a new drainage system needs to be developed and re-submitted with a new permit application. Before the permit is approved, the EHO must be satisfied that the drainage system will adequately remove storm water from the new disposal field area and that there will only be a remote likelihood of the drainage backing-up. 4. Whether the permitted sewage disposal system ensures the protection of public health as required by the Regulation The Appellant submits that the permitted disposal system would create a public health hazard and hazard to her organic garden due to inadequate percolation and the possibility of sewage contaminating the ground water. The Respondent claims that the public health would be safeguarded by the permitted system. The Respondent is satisfied that the proposed drainage to the south, the sand-mound absorption field, the percolation rates and the addition of a package treatment plant would ensure the protection of public health. The question of whether a health hazard will be created by the proposed system is really the key question to be addressed by the EHO and this Panel on appeal. Section 7 of the Regulation allows an application to be approved provided that the public health can be safeguarded. Although it is recognized that a sand mound and

10 97-HEA-27 Page 10 package treatment plant produce better quality effluent than an in-ground septic system, the sand-mound system still relies on at least 18 inches of unsaturated natural soil below the mound, and the entire system must comply with the Regulation. In this case, given the percolation rates, the problems in percolation testing, the setback problems and the uncertainty with respect to drainage, the Panel cannot be reasonably satisfied that the system will safeguard public health. DECISION In making its decision, the Panel of the Environmental Appeal Board has carefully considered all of the relevant documented evidence and all comments made during the hearing, whether or not they have been specifically reiterated here. At the close of the hearing, the Respondent suggested that any amendments to the Permit be made by the Panel and that the permit not be rescinded. The Appellant submitted that an EHO must have all the proper information before permitting a disposal system and that the permit must explicitly contain all the terms and conditions of the system. The Appellant referred to a decision of the Environmental Appeal Board in L.W. Perkins v. Environmental Health Officer (Environmental Appeal Board, Appeal No. 96/16 - Health, January 14, 1997) (unreported)) which concluded that the wording of conditions of a permit should be made as explicit as possible to ensure that the present owner, contractors, and future owners know the requirements for ensuring maximum protection of the disposal field. The Panel agrees with the Appellant that a permit should explicitly and accurately describe the disposal system so that people interested in the Lot and system may be able to find out exactly what is required and what constitutes the system. Moreover, all the relevant and accurate information should be before the EHO in order for him or her to make a thorough assessment and proper decision as to whether the system will compromise public health. When the Panel weighs the problems with percolation, field location and drainage, against the benefits of a sand mound and package treatment plant, the Panel concludes that varying the permit is not appropriate for the large number and type of changes that need to made to the system. The evidence presented at the hearing, especially with respect to a new drainage system, requires detailed information which is not before the Panel. Mr. Buchanan discussed three possible drainage solutions for the Lot with a preference for a drain running north to the ditch along Clayton Road. However, the drainage ideas were suggestions Mr. Buchanan had only thought about; no written design exists for his northern drain preference, nor for the other options. Without an accurate design, the Panel cannot be reasonably confident that the field area will be drained adequately. Moreover, the Panel finds that the EHO needs to assess the effectiveness of a specific proposal for the drainage system. The EHO should also consider the health and percolation impacts of moving the field to the east and to the south once the 10-foot setbacks to the sand edges are accommodated on the west and north sides. The Panel notes that, with the change in field location, it is most likely that percolation test hole number 3, which has a slow percolation rate, will be included in the new field area. The fact that the 1993 percolation tests to the east of the field were deemed unacceptable must be taken into account when evaluating moving the field further eastward. In sum, when

11 97-HEA-27 Page 11 considering all the factors of percolation, field location and drainage problems, the Panel is not satisfied that enough information exists for the Panel to vary the permit by making amendments and adding several conditions. The Panel finds that the sewage disposal system must be modified, and any permit re-application should include the modifications. A new permit application should explicitly describe the details of the system and include information on all of the Panel s concerns with percolation, setbacks and drainage. The Panel, therefore, allows the appeal, rescinds the decision of the EHO and cancels the permit. The Panel suggests that the Permit Holder, Cidalia Wensley, reapply for a new sewage disposal system permit incorporating the setbacks as described in this decision, a revised drainage system, and a package treatment plant. The EHO would then be able to consider fully the impact of the changes on public health. Toby Vigod, Chair Environmental Appeal Board October 10, 1997