Environmental Appeal Board

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1 Environmental Appeal Board APPEAL NO. 97-HEA-03 In the matter of an appeal under section 8 of the Health Act, R.S.B.C. 1996, c BETWEEN: Al and Bridget Miguez APPELLANTS Cathy and Bruce Korn Bob and Kathy Best Mike Adamek AND: Environmental Health Officer RESPONDENT AND: Shawnigan Lake Mobile Home Park PERMIT HOLDER BEFORE: A Panel of the Environmental Appeal Board Carol Martin, Chair DATE OF HEARING: March 6, 1997 PLACE OF HEARING: Victoria, BC APPEARING: For the Appellant: Bridget Miguez For the Respondent: For the Permit Holder: Glen Smith Alex Kunert APPEAL This is an appeal against the December 13, 1996 decision of the Environmental Health Officer ( EHO ) to approve a permit for alteration of an existing system on Lot 2, Section 3, Range 4, Plan 33798, Shawnigan District (the Property ). The Permit Holder is Shawnigan Lake Mobile Home Park Ltd. The Board has the authority to hear this appeal under section 11 of the Environment Management Act and section 8 of the Health Act. The Environmental Appeal Board, or a Panel of it, may, after hearing all evidence, decide to vary, rescind or confirm the decision of the EHO. The Appellant is seeking an order that the permit issued for a sewage disposal system for the Property be rescinded on the grounds that the disposal system approved is of the size which should correctly fall under the jurisdiction of the Ministry of Environment, Lands and Parks, rather than with the Ministry of Health, and because the EHO failed to follow the Health Act and the Sewage Disposal Regulation and, therefore, to safeguard public health.

2 APPEAL NO. 97-HEA-03 Page 2 BACKGROUND The Property lies upland from Shawnigan Lake on Vancouver Island. Shawnigan Lake Mobile Home Park was constructed in 1975 with three sewage disposal systems comprised of three 5000 gallon per day package treatment plants (Monopure) and a total of 1500 feet of disposal field. The initial 1975 Sewage Disposal permit allowed for 81 units calculated under the old health regulation at 150 gallons per unit per day. Because the disposal field later suffered from overloading, an additional 800 feet of field was installed in The Panel was told that there has been no increase in capacity of the system or in the number of units since then. While the original permit provided for 81 mobile home units on the acre lot; the total number of units on site was later reduced to 72 units to make room for the additional field area. That is the number of pads in the trailer park at the present time. In recent years, however, complaints of ponding of liquid from the system has occurred from time to time in the vicinity of the existing fields, to the extent that the owners of the mobile home park have been ordered by the Ministry of Health to make improvements to the system in order to safeguard public health. In November of 1996 the owner, Mr. Bruno Bush, employed Eagle Engineering to apply to the Ministry of Health for a permit to repair the existing malfunctioning system. As there is little room remaining on the parcel among the 72 mobile homes located on it, and the soils in the area of the existing disposal fields are saturated, the owners purchased an adjacent strata lot, Lot 2, and sought a permit to locate an additional field on that lot. The new field would utilize a pressure distribution system (H-10 Infiltrators TM with various pumps and valves) to provide for periodic dosing of the new field, thus taking some of the load from the other systems and allowing them to dry up somewhat. Part of the proposed field is to be located approximately 50 feet from a seasonal wetland which feeds a stream running through the Appellants properties, which is reportedly within 50 feet of one of their wells. After considering the test data supplied by Eagle Engineering, Ltd., as well as the regulations pertaining to the application for repair or alteration which falls under Section 7(2) of the Sewage Disposal Regulation the EHO, Mr. Al Rideout, approved the permit on December 13, 1996 subject to conditions outlined in the letter dated December 10, 1996 from the EHO to Mr. Bruno Bush. The nine conditions included in Mr. Rideout s letter required: registration of an easement permitting the field to be located on the adjacent lot, registration of a restrictive covenant limiting the easement area to sewage disposal only, sufficient suitable fill to be added to the entire drainfield areas to provide for 48 inches of porous soil above clay, hardpan or the water table, installation of suitable equipment to prevent solids from entering drainfields,

3 APPEAL NO. 97-HEA-03 Page 3 minimum 50 foot breakout to seasonal drainage pond to be strictly maintained, drainage controls to be constructed where deemed necessary by the engineering consultants, filling done during dry weather to prevent compaction of native soils, the provision of signed and sealed as-built drawings, and the posting of the permit at the lot as per the sewage disposal regulation. On January 10, 1997, the owners of three strata lots adjacent to Lot 2 appealed the issuance of the permit for the Mobile Home Park on Lot 2 for a variety of reasons. They argued that the volume of sewage to be discharged exceeds the authority and jurisdiction of the EHO, that a hydrogeological study had not been done, that alternative methods for correcting the problem had not been explored, and that a proper site assessment had not been done by the EHO. In addition, the Appellants argued that the EHO had not required strict adherence to the regulation and thus failed to protect the public health. They asked that the permit be rescinded. RELEVANT LEGISLATION The relevant legislation is found in the Sewage Disposal Regulation, particularly in sections 2 and 7. Section 2(2) of the regulation states that, unless relieved by a permit, it is the duty of an owner to ensure that domestic sewage does not reach the surface of land Section 7(2) allows the EHO to relax the requirements for repair or alteration of a malfunctioning system which was built before 20 December 1985, if the appropriate work cannot reasonably be effected in accordance with this regulation. The regulation provides that the EHO may issue a permit to repair or alter under section 3 if the sewage disposal system, when repaired or altered in accordance with the conditions contained in the permit, will not constitute a health hazard. Section 3(1) states that no person shall construct, install, alter, or repair a sewage disposal system unless he holds a permit. Subsection (2) says that the application must be made in a manner satisfactory to the Ministry of Health with all relevant details completed by the applicant. And under subsection (3): no permit may be issued until a site investigation and the tests required under schedule 1 have been carried out and the EHO is satisfied that, having regard for the provisions of that schedule, the construction and ultimate use of the system will not contravene the Act or the regulation. Subsection (4)(a) requires that all material facts are disclosed accurately in the application and (4)(e) states that the construction, installation alteration or repair must comply with the standards for the appropriate sewage disposal system set out in this regulation. Subsection (5) allows for additional conditions to be imposed by the EHO. Repeating Section 2(2), Section 4(3) states that unless otherwise authorized, no person shall allow domestic sewage to reach the surface of land or discharge into a surface body of fresh water.

4 APPEAL NO. 97-HEA-03 Page 4 Schedule 1 of the regulation outlines the requirements for a site investigation by the EHO, as well as the tests required. Schedule 3 provides the requirements for the installation and use of Package Treatment Plant systems (PTP s). ISSUES The issues raised by the Appellants can be collected into four general categories: 1. Jurisdiction-whether this application for an addition of a new 5000 gallon/day unit and field to repair and/or alter an existing permitted system (present total of gallons/day) should fall under the jurisdiction of the Ministry of Health, who process applications for discharging < 5000 gallons/day, or under that of the Ministry of Environment, Lands and Parks (> 5000 gallons/day), if there is to be no increase in the volume of flow or in the number of mobile home units in the park; 2. Other government agency regulation or policy-whether the EHO is restricted in his decision making by regulations (e.g. Zoning bylaws) or policies of local government; 3. Restrictive Covenants-whether the EHO is limited in his consideration of an application by existing covenants of an internal nature (e.g. one registered at the time of subdivision limiting use of the strata access road to the lots); 4. Health Act and regulation-whether the EHO followed the requirements of the Act and regulation (in this case those sections pertinent to Section 7(2)) and was satisfied that there would be no risk to public health created by the approval of the application if carried out and used according to the regulation and the conditions of the permit issued by him. ARGUMENTS AND EVIDENCE Issue #1 Jurisdiction: Should the application have been considered by the Ministry of Environment, Lands and Parks instead of the Ministry of Health? Of the several issues raised by the Appellants, the primary issue is whether the application to repair or alter the sewage disposal system(s) for the Shawnigan Lake mobile home park should have been considered by the Ministry of Environment, Lands and Parks rather than by the Ministry of Health, as the total daily disposal amount of the entire system exceeds 5000 gallons/day as calculated under current regulation. The Appellants via spokesperson Bridget Miquez, argued, in their verbal and written submissions to the appeal hearing [that Policy from both the MOH and MOE agree that where sewage discharges are equal to or greater than 5000 gallons per day and where there are proposed changes to these systems and when these systems are failing, that the MOE is to be the authorizing agency. The Appellants maintained that the total flow of the system which the owner is applying to alter or repair would be greater than 15000, and as high as gallons/day total for the existing number of units (72) in the mobile home park, if the current schedule is used for calculating estimated daily flows (@ 250 gallons/day/ unit).

5 APPEAL NO. 97-HEA-03 Page 5 The Appellants noted that the Ministry of Health, via correspondence of July 1985, when the Health Officer became aware that the sewage disposal system for the mobile home park was beginning to fail, tried to establish that the mobile home park at Shawnigan Lake, if the new estimated flow of 250 gallons per day per unit were used, would exceed per day and therefore fall under the jurisdiction of the Ministry of Environment, Lands and Parks. The Appellants referred to a series of letters between the Ministries regarding jurisdiction in this case, where the permit had previously been issued by the Ministry of Health for the three plants calculated as not greater than 5000 gallons of sewage per day per plant as calculated accordingly to the regulation at the time of approval [1979]. The Ministry of Environment, Lands and Parks staff, after initially stating that the owner of the mobile home park would require a waste management permit for repairs to the failing system(s), concluded that the Ministry of Health should consider any applications (eg. for repair or alterations of existing permitted systems) where they had initially issued the permit. In a letter dated July 18, 1985 to Glen Smith, the public health inspector, the decision of the Ministry of Environment, Lands and Parks was communicated as follows: If an operation previously approved under the Sanitary Regulations is referred by Health to Waste Management jurisdiction [now Environment], and there are no proposals for modification which would increase the discharge or significantly change the waste disposal facilities, and provided there are no significant waste disposal problems with the operation, then the operation should continue to be considered legal under the Sanitary Regulations, and a permit under Waste Management Act would be unnecessary. The letter goes on to say that the mobile home park therefore remains under the Health Branch jurisdiction and a Waste Management Permit is not required. The Appellants disagree with that decision, arguing that the total discharge per day is greater than the limit for consideration by the Ministry of Health. They also argued that the proposed new system and field on a different parcel constitutes a significant change to the system. Further, the Appellants argued that there are significant waste disposal problems with the operation. The Appellants provided a draft Working Agreement, dated approximately March 1996, between the Ministries of Health and Environment, Lands and Parks, citing section (ii), entitled Failing Systems - requires immediate attention. They referred to subsection (ii), point 5, noting that it states that if estimated flows are equal to or greater than [5000 gallons/day] for any separate disposal system, BC Environment would be responsible for those systems. The Panel notes, however, that under the same section, (Failing Systems ), subsection (i) states that where a Health permit was initially issued for a project which is now in need of repair, then it should remain under the jurisdiction of Health. (While that document is not a binding regulation, the Respondents noted that the ministry staff have been asked to use it. ) The Panel notes also that subsection (ii) refers to development which was in place prior to regulation or for new development and which was carried out without [Health] authorization, and stating that systems in that category, those with an estimated daily flow of greater than 5000 gallons/day, would fall under the

6 APPEAL NO. 97-HEA-03 Page 6 jurisdiction of the Ministry of Environment, Lands and Parks. (The Panel notes, however, that the original disposal system for the mobile home park was approved by the Ministry of Health on November 4, 1974.) The Respondent s spokesperson, Mr. Glen Smith, presented a March 7, 1996 letter from legal counsel in the Attorney General s Office tothe Ministry of Health, advising on the matter of jurisdiction, stating that where a permit for a sewage disposal system was issued prior to the change in the estimated flow amounts in the Appendix to the Regulation, the Sewage Disposal Regulation [under the Ministry of Health] will continue to apply. The Permit Holder s representative, Mr. Al Kunnert, did apply for a permit from the Ministry of Environment, Lands and Parks in early 1995, but later received a response from the Ministry which acknowledged the withdrawal of the application because; An inter-agency agreement has resulted in a decision that the discharge of sewage from this development remains under the jurisdiction of the Ministry of Health, providing there is no increase in the size of the development. The Panel accepts the two Ministries interpretation of the jurisdictional question, as set out in their working agreement that the Sewage Disposal Regulation under the Ministry of Health shall still apply in this case, although the estimated daily sewage flow from the 72 units may exceed the maximum for processing under current Ministry of Health Regulations. Issue #2 Is the EHO restricted by local government zoning or policy when considering an application for a sewage disposal system? The Appellants provided correspondence from the Regional District of the Cowichan Valley advising the Permit Holder of the Regional District s policy requiring that sewage be disposed of only on the property on which it is created. The Appellants argued that the Regional District would require re-zoning for the parcel to allow for the disposal of sewage on an adjacent lot and that that had not yet been done. They also provided a current Regional District Mobile Home Bylaw which they maintained was not being followed. The EHO replied that he is not required by Provincial legislation to restrict his decision based on local government policy and regulation, although the Ministry has a policy suggesting that they consider zoning requirements. The EHO noted that it is the Ministry of Health position that provided that such works are covered by registered easements, sewage can be transported across property lines to an approved disposal field covered by an appropriate easement. The EHO noted as well that the Mobile Home Bylaw, in his view, does not apply to mobile home parks established prior to the Bylaw [May 1982]. The Panel agrees that the EHO is not legally obliged to be directed by the regulation or policy of another agency and that it is the responsibility of the permit holder to ensure that all other applicable regulations affecting his/her property are respected, including zoning.

7 APPEAL NO. 97-HEA-03 Page 7 Issue #3 Must the EHO concern himself with internal covenants on the property? The Appellants argued that the EHO should not have issued a permit for construction and maintenance of a sewage disposal system for a lot where legal access to the lot for a non-residential use may be a problem. As before, the EHO argued the opposite: That the EHO is not governed by private (or other) covenants, as that is a matter for the affected property owners to address. The Panel agrees that the Regulation does not require that the EHO refuse a permit on the basis of a restrictive covenant regarding access to the lot. As the lot lies adjacent to the mobile home park, the Panel assumes that sufficient access for construction and maintenance of the new field can be obtained by relocating one of the mobile homes if necessary. Issue #4 Did the EHO fail to follow the Sewage Disposal Regulation when considering the application for a Sewage Disposal Permit for the Property and did he, therefore, fail to safeguard public health? The Appellants argued that the EHO failed to adhere to the requirements of the regulation by not: requiring a hydrogeological assessment of the new disposal field site to determine the suitability of the site and its potential affects on the water table and the wet area near the field, requiring that the applicant ensure that all relevant details to support the permit application were correctly completed (e.g. legal documents such as a covenant allegedly affecting access to Lot 2 was not disclosed). requiring sufficient tests on the site for the sewage disposal system, especially in relation to the numbers of segments of the new disposal field, prior to approving the permit, to ensure ample percolation rates and sufficient soil depth, carrying out sufficiently a general site assessment as it relates to daily sewage flows, seasonal effects on the wet area, depth of soil, slope, breakout points, springs, natural drainage and well sites, determining that the system, as approved, could potentially put at risk water wells on neighbouring lots, ensuring that alternative solutions to the problem were not actively pursued, using the permit even though the system will still allegedly be short 2200 feet of absorption field,

8 APPEAL NO. 97-HEA-03 Page 8 requiring that the stricter Ministry of Environment, Lands and Parks standard be applied as the field is to accommodate greater than 5000 gallons per day and the EHO must ensure that no danger to human health will result. The Respondent s spokesperson, Mr. Glen Smith, noted that the EHO, Mr. Al Rideout, had considered the proposal under Section 7(2) of the Sewage Disposal regulation, which allows for permits to be issued for repair or alteration of failing existing permitted systems, with conditions, subject to the EHO s satisfaction that no health hazard will result. The Respondent affirmed that it was the Ministry s opinion that the installation of the additional disposal field would not constitute a health hazard. The Respondent noted that no hydrogeological assessment had been required in this case as one is not required by that Health Unit for repairs. He commented that the Appellants, in his view, had not provided evidence to demonstrate the necessity for such a study. With regard to setbacks from a watercourse, the Respondent stated that the EHO had agreed with Eagle Engineering s assessment that the watercourse was not a body of non-tidal water, and that therefore a 15 meter setback to a breakout point applies. The Respondent added that even if the water draining from the wetland located near the top of the proposed new field area constituted a stream and therefore was a body of non-tidal water for the purpose of the regulation, Section 7(2) of the Health Act regulation provides the EHO with the discretion to reduce setbacks and other requirements, even setbacks from wells, as long as he is satisfied that no health hazard is created. The Respondent noted that the effect of the repairs and alterations to the failing system would alleviate an existing threat to public health and that the result would be a great improvement to a serious problem. He added that the EHO had recommended that the work on the new field area be carried out during the dry season. On the matter of the soil conditions on the site, the EHO commented that the conditions were suitable for the proposed system and that, with the addition of 18 inches of porous soil, the field should function adequately. While filling is not acceptable for new development or where the flow is being increased, the Respondent noted that Section 7(2) allows for the addition of soil. The Respondent stated that the believed the requirements of the regulation as it pertains to Section 7(2) applications for repair of failing systems had, in this case, been fulfilled. The Permit Holder, via a letter dated January 30, 1997 from Eagle Engineering Ltd., provided a description of the soil conditions on Lot 2 as well as an explanation of the proposed addition to the disposal system for the mobile home park. The purpose of the addition to the system is to reduce the loading on the existing disposal fields. The company, who had been asked by the owners to evaluate and design a reserve field on Lot 2, stated in the letter that they believed the proposed site exceeds the requirements as defined in the Ministry of Health regulations. The design, according to the letter, incorporates several new concepts including biotube effluent filters, screened pump vaults, infiltrator chambers, and pressure distribution. In addition, the engineering firm comments in the letter that they found that the site has a minimum of 30 inches of suitable soil upon which 18

9 APPEAL NO. 97-HEA-03 Page 9 inches of suitable material will be added. The field is to be placed on sand for further reduction of fecal coliform. The Permit Holder s position on the matter of the public health issue is summarized in a letter he wrote to all the tenants in the mobile home park in February 1997: According to our engineer and the EHO who issued the permit, this new field and the other upgrades, far from being the health hazard claimed by these neighbours, would in fact greatly improve the present sewage system as well as benefit the surrounding area in general. The Panel accepts that the EHO is satisfied that the requirements of section 7(2) of the regulation were fulfilled in the issuance of the permit for an alteration of the sewage disposal system for the mobile home park by the addition of a new system and field on adjacent Lot 2. The Panel, however, remains concerned about a statement in the engineer s letter indicating that up to one-half of the total effluent would be shunted into the new plant and field from time to time. The Panel notes that the Respondent agreed that the owner could provide a means to ensure that no more than 5000 gallons/day of effluent from the existing system(s) be directed into the new field on Lot 2. DISCUSSION AND 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. With regard to compliance with the specific sections of the Health Act and Regulation, the Panel finds that the EHO correctly applied the requirements of the relevant regulations and did so within the parameters of his jurisdiction. The Panel accepts that the EHO is satisfied that the urgent threat to public health will be alleviated by the approved work and that no new threat will be created by it. After reviewing all of the material presented to it at the hearing, as well all of the relevant legislation, the Panel finds that the decision of the EHO to approve a Permit for a sewage disposal system for the property should be upheld, but that in order to be more certain that no new problems are created, the Permit should be amended to include the following conditions which shall be attached to and form a part of the Permit: that the maximum volume of effluent to be pumped into the new unit and field per day be 5000 gallons; that the easement to Lot 2 from the mobile home park be canceled at such time as the mobile home park is serviced by a community sewerage facility; that there be no more than the present 72 mobile homes located on the property; that routine maintenance, as well as the maximum daily flow (5000 gallons/day) and the maximum number of units located in the park be entrenched by restrictive covenant;

10 APPEAL NO. 97-HEA-03 Page 10 that a defined access easement from the mobile home park to Lot 2 be registered or officially defined on the Plan described below; that a final as built Plan be submitted to the Ministry of Health, and to the Appellants, and be attached to the Permit; that the above Plan show the location of the entire sewage disposal system as well as that of all mobile homes, easements, service buildings and access points; that a test pit be dug and percolation tests be carried out on the top end of the proposed new field area to confirm its suitability; and that the mobile home owners be required by the owner of the mobile home park to install low flow fixtures in the units. Carol Martin Carol Martin, Panel Chair Environmental Appeal Board May 2, 1997

11 APPEAL NO. 97-HEA-03 Page 11 APPEAL NO. 97-HEA-03 AMENDMENT In the matter of an appeal under section 8 of the Health Act, R.S.B.C. 1996, c BETWEEN: Al and Bridget Miguez APPELLANTS Cathy and Bruce Korn Bob and Kathy Best Mike Adamek AND: Environmental Health Officer RESPONDENT AND: Shawnigan Lake Mobile Home Park PERMIT HOLDER BEFORE: A Panel of the Environmental Appeal Board Carol Martin, Chair DATE OF HEARING: March 6, 1997 PLACE OF HEARING: Victoria, BC APPEARING: For the Appellant: Bridget Miguez For the Respondent: Glen Smith For the Permit Holder: Alex Kunert On further review of my decision with respect to a permit for alteration of an existing system on Lot 2, Section 3, Range 4, Plan 33978, Shawnigan District I have noted the following errors and provide the following changes: 1. All references to 72 units or 72 mobile homes on pages 2, 5, 6 and 9 of the decision are amended to refer to 73 units or 73 mobile homes. 2. The use of the word strata as it is used in the terms strata lot and strata lots on pages 2 and 3 of the decision is eliminated. 3. The words new plant and in the second sentence of the third paragraph on page 9 of the decision are deleted. 4. The last permit requirement on page 10 of the decision is deleted and the following is inserted: that all new mobile home owners be required by the owner of the mobile home park to install low flow fixtures in the units. The remainder of the decision is affirmed. Carol Martin Carol Martin, Panel Chair Environmental Appeal Board June 10, 1997