Environmental Appeal Board

Transcription

1 Environmental Appeal Board APPEAL NO. 95/29 - HEALTH In the matter of an appeal under section 5 of the Health Act, R.S.B.C. 1979, c. 161 BETWEEN: Jacinthe B. Eastick and Stan and Maxine McRae APPELLANTS AND: Environmental Health Officer RESPONDENT AND: Galewind Holdings Ltd. PERMIT HOLDER BEFORE: A Panel of the Environmental Appeal Board Bob Radloff, Panel Chair DATE OF HEARING: March 29, 1996 PLACE OF HEARING: Nanaimo, BC APPEARING: For Appellants: Jacinthe Eastick and Maxine McRae For Respondent: Glen Smith For Permit Holder: Dale Williams This was an appeal against a Sewage Disposal Permit issued by Doug Murray, Environmental Health Officer, to Galewind Holdings Limited on December 22, 1995, for Lot 1, Range 2, Section 20, Plan 26041, Nanaimo District. The Board has the authority to hear this appeal under section 11 of the Environment Management Act and section 5 of the Health Act. The Board may vary, rescind or confirm the decision of the Environmental Health Officer. BACKGROUND The appeal has been brought by Jacinthe Eastick and Stan and Maxine McRae. Stan and Maxine McRae own property adjacent to the Permit Holder s property. The Appellants are concerned about the health and environmental effects of a sewage treatment and disposal system to be installed on the subject lot. Galewind Holdings, the owner of the lot proposes an advanced secondary treatment plant followed by ground disposal. This system is to serve a 5 building commercial development on a 5-acre parcel. Each building is served by a conventional septic tank. From the septic tank, wastewater flows to an aeration treatment tank using Clearstream Wastewater Systems Ltd. s treatment technology. This is followed by

2 APPEAL NO 95/29 Page 2 a sand filtration step prior to discharge to ground. The system was designed by Eagle Engineering Ltd. Disposal to ground at this site presented a number of challenges. These were well documented by Mr. Murray, the Environmental Health Officer. Principally they were: a) The natural soil at the disposal area had a very quick percolation rate. Percolation rates averaged 1.4 minutes per inch. b) The disposal area was confined on 3 sides by rock outcrops and this rock outcrop extended below the field down gradient from the disposal field. The soil thickness lessened downhill from the field and became quite shallow just prior to a roadway ditch approximately 45 metres from the field. c) Travel time to the breakout point (ditch) downhill from the field was short. It was estimated at 1-6 days. This would be shortened further if effluent were to surface in a buffer area between the field and the ditch. The site s natural water levels were monitored during 2 wet seasons by Mr. Murray. Once perimeter drainage improvements were installed by Galewind Holdings it was evident from the data presented that 1.2 metres of clearance to the natural groundwater level was available and consequently this requirement of the Sewage Disposal Regulations was met. Despite this a number of site limitations remained. Eagle Engineering in conjunction with Payne Engineering Geology proposed a number of modifications to the disposal site to overcome its limitations. These were: a) Modification of the disposal trenches to include a sand layer below the normal drain rock. This slowed the effluent travel time and enhanced treatment in the trench area; b) Addition of fill in the downhill buffer area to avoid any possibility of ponding of effluent between the field and the road; c) Drainage improvements as alluded to earlier, to lessen the flow of groundwater from uphill areas into the soil beneath the field; and d) The use of advanced secondary treatment prior to the disposal to ground to lessen the need for the field to remediate effluent. It was the professional opinion of both Eagle Engineering and Payne Engineering Geology that the above improvements were adequate to ensure a safe and functional ground disposal facility. After a thorough review, the Environmental Health Officer approved the design and issued a permit. After the permit was issued, Ms. Eastick and Mr. and Mrs. McRae appealed the permit citing a number of concerns. They are:

3 APPEAL NO 95/29 Page 3 1. Issuing the permit violates section 3.2(b) of the Regulations. This subsection details notice requirements for the granting of a permit. Subsection 3.4(2) provides that the published notice of permit issuance must be posted in at least 2 issues of a newspaper that circulates not less than weekly. Further the notice must be published as soon as possible and not more than 10 days after the permit is issued. 2. The Appellants submitted that the Permit Holders had failed to disclose to the Environmental Health Officer that the permitted system was to support a strata subdivision on the subject property. They contend that this omission constitutes a breach of a number of provisions under the Sewage Disposal Regulation including: failure to disclose relevant information on the permit application under section 3(2); failure to comply with the standards for the appropriate sewage disposal systems under section 3(4)(e); and failure to provide acceptance of responsibility for the system by a municipality, regional district or strata corporation under section 3(3)(b). 3. There is a possibility the disposal system will pollute the wells on Mr. and Mrs. McRae s property, and wells on other properties adjacent to the permitted property. 4. The treatment system proposed is unproven in British Columbia. 5. The engineer doing the system design is also the sales agent for the treatment system. As a result he cannot be relied on to be objective. ORDER REQUESTED That the issued permit be revoked and that the applicant be advised to re-apply for a sewage disposal permit in full accordance with the regulation; or in the alternative, That the issued permit be suspended until the proposed strata subdivision is deleted from the application to rezone the lot and until the application is otherwise in full accordance with the Regulation. Further the Appellants request that: a) the Board require that the Health Act be amended to take into account zoning prior to issuing a permit, and

4 APPEAL NO 95/29 Page 4 b) the Board require that the Health Act be amended to put the burden of proof on to the Permittee to show that no adverse impacts will occur rather than on those who may be impacted. DISCUSSION It was clear from the evidence presented during the hearing that the technical aspects of treatment and ground disposal for the site had been thoroughly studied by the Permit Holder and the design of the treatment and disposal system was carefully crafted to suit the site conditions. Similarly the Respondent spent considerable time reviewing the proposal, investigating the proposal in the field and monitoring field conditions during wet weather periods. The Environmental Health Officer was thorough in researching possible problems related to ground disposal at this property. The consultants, retained by the Permittee were equally thorough in designing and implementing solutions to overcome ground disposal constraints highlighted by the Environmental Health Officer and those they had identified themselves. In the end the system as designed met the requirements of the Regulation in relation to setbacks, minimum depth of soils and breakout distances. Despite this, concerns remained about the influence of disposed effluent on offsite wells. Evidence was presented by both parties as to the location and depth of offsite wells on Mr. and Mrs. McRae s property. The Permittee provided an opinion from Payne Engineering Geology that stated, the proposed sewage system cannot possibly influence the main water well in question. It did not address the possible impact on a second well on the McRae property. This well is reported by the drillers log however, as a dry hole. Mr. McRae retained concerns about this well and the potential limitation of drilling further wells on his property due to the presence of the proposed disposal field. With respect to the adequacy of the treatment system, Eagle Engineering demonstrated how extensively the proposed treatment system has been used in British Columbia. It has been used in numerous locations. The above are the primary technical considerations of the Appeal. The remaining issues were procedural. They are best discussed by reviewing the Appellants concerns. 1. It was undisputed by the Respondent that the notice provisions of the Regulation had not been strictly met by the Permittee. This matter has been corrected by the process before the Board. There is no evidence that the Appellants have been prejudiced by the Permit Holder s failure to meet the notice requirements of the Regulation. The Appellants received notice of the permit and have filed their appeal with the Board. 2. Many of the points raised by the Appellants have to do with the concern that the permitted system will serve a strata subdivision. The Appellants were

5 APPEAL NO 95/29 Page 5 concerned that the Permit Holder did not disclose this fact and that if it is true that it violates the Regulation. The evidence of the Permit Holder and the Respondent is that the permitted system under appeal is to support a single non-strata plan. The Respondent further contended that even if a strata subdivision is approved at some time in the future the Appellants interests are protected by the fact that: a) on receipt of a strata subdivision referral from the Ministry of Transportation and Highways the Environmental Health Officer may likely recommend rejection on the basis of non conformance; and b) a strata subdivision proposal would require a new application for a permit to construct a sewage disposal system. Any future permit issued for such a development would be subject to an appeal period. 3. The issue of the objectivity of the engineer conducting the review of the system has also been questioned by the Appellants. DECISION The Panel finds that any question of lack of objectivity has been remedied by the review of the system that has been conducted by the Environmental Health Officer and this Panel. This ground of appeal is, therefore, rejected. The Board finds that the requirements of the Regulation have been met with respect to field design and the approval of this design. The design has been well researched and has satisfied the considerable scrutiny of the Environmental Health Officer. Based on the expert testimony presented, the Panel is satisfied that the proposed system does not present a health threat to the community in general or to the adjacent wells on the McRae property. Further the Panel finds that even if there is a strata subdivision application it is not a material fact with respect to sizing requirements. It is the Panel s position that the On Site Sewage Disposal Standards for Subdivision Assessment cannot supersede the field design guidelines stipulated in the Regulation. Hence Schedule 3 of Appendix 2 Package Treatment Plant Absorption Field Length would apply for the proposed system irrespective of the subdivision type. The Strata Subdivision application, however, is material to issuing a permit. In short no permit may be issued for a Strata Subdivision disposal system unless written maintenance agreement provisions are met as per section 3.(2)(b) of the Regulation. The Panel accepts the Respondent s argument however, that no strata subdivision currently exists and further, that approval for such a strata subdivision rests with the Approving Officer, Ministry of Transportation and Highways. That being the case the Panel must conclude that the Permit Application as approved by the Environmental Health Officer on December 22, 1995 is complete without reference to any proposed strata subdivision.

6 APPEAL NO 95/29 Page 6 The Panel has, therefore, decided that the appeal is dismissed. COMMENTS 1. The Panel has considered the Appellant s request that the Board order that the Health Act be amended to take into account the issues of zoning prior to the issuance of a permit, and that the burden of proof be reversed to provide that the Permit Holder must show that no adverse health effects will occur under an appeal before the Board. The Environmental Appeal Board has no jurisdiction to make such an order and this Panel is not prepared to make any recommendations with regard to these requests. 2. The Panel recommends that in future where there is speculation that a permit application may be subject to a strata subdivision that the Environmental Health Officer confirm with the Approving Officer of the Ministry of Transportation and Highways on the exact status of the property. Such an inquiry may assist in expediting these matters. Bob Radloff, Panel Chair Environmental Appeal Board July 5, 1996