Environmental Appeal Board

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1 Environmental Appeal Board APPEAL No. 97-HEA-25 In the matter of an appeal under section 8 of the Health Act, R.S.B.C. 1996, c.179. BETWEEN: Dave Ellenwood APPELLANT AND: Environmental Health Officer RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Carol Martin, Chair DATE OF HEARING: September 11, 1997 PLACE OF HEARING: Richmond, B.C. APPEARING: For the Appellant: Dave Ellenwood For the Respondent: Nick Potter APPEAL This was an appeal against the May 30, 1997 decision of the Environmental Health Officer ("EHO") to deny a permit for a sewage disposal system for Lot 5, N.W. ¼, Sec. 23, TP1, Plan 9266, N.W.D., th Street, Surrey, B.C. (the "Property"). The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act and section 8 of the Health Act. The 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 a permit be issued for a sewage disposal system for the Property on the basis that, if he were given approval to construct, he could correct the drainage and high groundwater table problems in the course of installing the system. BACKGROUND Mr. Donald Ellenwood has owned the 1.98 ha (4.95 acres) Property located near Highway 99 and 32nd Street in Surrey, since His son, Dave Ellenwood, the Appellant, would like to build a five bedroom house on the wooded low-lying parcel. In the fall of 1996, Dave Ellenwood discussed the parcel and his intention to seek a permit for a sewage disposal system for it with the Boundary Health Unit's EHO, Mr. Brian Zacharias. Mr. Ellenwood then employed Lunar Enterprises to conduct soil and percolation tests during the December 1996 to March 1997 period. Subsequently, on behalf of Mr. Ellenwood, Beesley Engineering Ltd. submitted an

2 APPEAL NO. 97-HEA-25 Page 2 "Application to Construct a Sewage Disposal System" for the Property on May 6, The application sought approval for a disposal system for a five bedroom house using an alternate system consisting of a 600 gallon tank, a "Clearstream" package treatment plant and a raised sand-mound absorption field with pressure distribution of the effluent. The soil data on the application showed clay at three feet from the surface and 18 inches to the high water table. The percolation average rate was reported as 2:05 minutes per inch (2.5 cm). Accompanying depth to water data showed one test hole, #124, as having less than 18" to high water in March Upon inspection on May 30, the EHO noted water levels at 24" and 30" in two test holes, but also noticed mottling of the soil in the holes which indicated a seasonal water table "well within the minimum required 18 inches". In addition, the EHO noted that the "Lot configuration does not allow for adequate setback distances from disposal mound to breakout points, water courses or property lines." With the rejection report, sent to Beesley Engineers and dated May 30, 1997, the EHO included a memo noting new guidelines which had been adopted by the Boundary Health Unit earlier in May 1997, entitled "Minimum Requirements for the Installation of On-site Sewage Disposal for Existing Non-conforming Land Parcels." (The Property is considered by the Health Unit to be "non-conforming" as it has less than 48" of native permeable soil normally required for a permit to install a "conventional" sewage disposal system.) The EHO's reasons for rejection, after considering the application under section 7(1) of the Sewage Disposal Regulations (for an alternate system), were noted as: seasonal high water (<18" to water table) cannot meet setback requirements to body of water (creek) and property lines, <100' and to breakout area <50'. On June 30, 1997 the Appellant appealed the rejection of his application for a permit to the Environmental Appeal Board. The appeal is based on the assertion that conditional or preliminary approval should have been granted by the EHO in order that the Appellant might proceed with the installation of the proposed sewage disposal system, so that he could then correct the problems related to the site. The proposed works involved correcting the present drainage and water table problems, through ditching and other means, to prevent the seasonal overflow of surface water from his neighbours' pond onto the proposed field area or from affecting the level of the ground water table in the area. THE ISSUES The key issue in this case is whether the EHO erred in refusing to issue a sewage disposal permit for the Property on the basis of its failure to meet regulatory

3 APPEAL NO. 97-HEA-25 Page 3 requirements which the owners believed could be corrected through ditching and other means. A secondary issue is whether the EHO could have issued a "provisional" permit, allowing the owners to construct a disposal system, on the basis that he and the engineer should be able, through drainage correction and other means, to prevent surface water from passing, even seasonally, over the proposed disposal field area and to lower the high ground water table. A third question is whether the EHO's discretion was fettered when considering the application under section 7(1) because of the mandatory wording of the Boundary Health Unit's "Non-conforming Land Parcel Guidelines." There was some argument that the Code of Good Practice applies. This Board finds it does not apply as the Property is under 10 acres. RELEVANT LEGISLATION The following sections of the Sewage Disposal Regulation (B.C. 411/85), as amended, and supporting Policy are relevant to this appeal: 2 (2) Except as relieved by an authorization issued under section 4(1) or by the terms of a permit issued under B.C. Reg. 577/75, it is the duty of the owner or occupier of every building to ensure that domestic sewage emanating from the building does not reach the surface of land or discharge into a surface body of fresh water. 3 (1) No person shall construct, install, alter or repair a sewage disposal system...unless he holds a permit. (3) No permit shall be issued under this section (a) in the case of construction or installation, until site investigation tests set out in or required by Schedule 1 have been carried out to the satisfaction of the medical health officer or public health inspector, and either of them is satisfied that, having regard to the provisions of that schedule, the construction, installation and ultimate use of the system will not contravene the Act or this regulation, 6 Subject to section 7, no sewage disposal system constructed after the date of this regulation which involves the use of a septic tank or a package treatment plant is permitted unless the system conforms with the standards of construction, capacity, design, installation, location, absorption, operation and use set out (a) for conventional septic tank systems, in Schedule 2, and (b) for conventional package treatment plant systems, in Schedule 3

4 APPEAL NO. 97-HEA-25 Page 4 7 (1) Where a medical health officer or public health inspector is satisfied that it is impossible for a person to comply with (b) in the case of a conventional package treatment plant system, sections 11, 12 or 18 of Schedule 3, but that the person can comply with all other provisions of the appropriate schedule, he may issue a permit to construct under section 3, containing conditions that he considers appropriate to meet the omitted standards having regard to safeguarding public health. [emphasis added] Schedule 1: 2 (c) In situations where no records are available, or (i) records are available, or (ii) there is a probability of flooding or a high water table the medical health officer or public health inspector may determine the ground water table. 3 (1) The applicant for a permit shall report the results of all determinations made under this schedule in a manner and form satisfactory to the Ministry of Health. Schedule 3 (2) If the results reported under subsection (1) are unable to satisfy the [EHO] that the quality of the surface water and ground water will not be impaired, [he] may require that alternative or additional tests be carried out by or on behalf of the applicant for a permit, so as to ensure that proper surface and ground water quality will be maintained. 11 A conventional absorption field shall not be located in an area where an impervious layer of soil or bedrock, or the ground water table, are less than 1.2 m [4 ft.] below the ground before it has been artificially disturbed by placement of fill, excavation or otherwise. 21 A sewage disposal system must be so located, constructed and the ground surface landscaped to protect the system from storm water. B.C. On-site Sewage Disposal Policy Section 4.4 Breakout Point Setback As a condition of permit pursuant to section 3(5), in order to prevent domestic sewage from reaching the surface of the ground, the setback from potential downslope breakout points, such as an exposed impervious layer in a ditch or curtain drain should generally be not less than metres (50 feet).

5 APPEAL NO. 97-HEA-25 Page 5 The following conditions should be considered in determining additional setback distances: soil depth, water table, annual and peak rainfall measurements, etc. Section 6.1 Alternate systems: This policy states that for the owner of an existing lot, an alternate system shall be considered by the EHO. It also provides criteria for the EHO to use as guidance when considering the application in order that he may include conditions in the permit, if one is issued, which will mitigate the omitted standards as set out in Schedule 2 or Schedule 3 for soil depth, slope and percolation rate. Other Relevant Boundary Health Unit Policy: Non-conforming Land Parcel Guidelines BHU Sewage 005, May 27, 1997 For parcels which do not conform to current soil and/or size requirements under sewage disposal regulation 7(1). Effective May 1, 1997, all non-conforming parcels proposed for installation of an On-Site Sewage Disposal system must meet the following minimum requirements. 2. The disposal mound toe must have a minimum setback 30 meters or 100 feet from boundary lines, domestic wells, water courses, drainage ditches and dwellings. 3. The point of discharge must be at least twenty-four (24) inches above the seasonal water table (may require wet season monitoring). Point of discharge being defined as the bottom of the disposal trench or bed. 4. A Restrictive Covenant 215 will be a condition of the Sewage Disposal permit. 5. The sewage disposal and treatment system must be designed by a professional engineer competent in wastewater treatment. The design engineer must certify that the system will produce effluent at the point discharge to the environment which does not exceed the following criteria CFU of fecal coliform per 100 ml mg of suspended solids and biological oxygen demands per litre. EVIDENCE AND ARGUMENTS The Appellant's Position The Appellant stated that the soil depth measurements conducted by Lunar Enterprises during heavy rainfall periods in December 1996 and in February and March of 1997, indicate "successful soil depth of 18 inches or more, contrary to the

6 APPEAL NO. 97-HEA-25 Page 6 findings of the EHO as noted in his rejection report." At the hearing, however, the Appellant agreed that on two occasions the test hole located in the middle of the proposed field had not met the minimum 18" to the water table; it had been measured at 16" and 12" to ground water. The Appellant proposed to correct the problem of surrounding surface water caused by overflow from their neighbour's pond by: installing a weir to catch water running over the edge of the pond and creating an interceptor ditch with perforated pipes along his property line, 4 metres from the upper edge of the disposal field, between the pond and the proposed field site. This would prevent pond water from continuing to cross the field area into the lowlying wet area beyond it. In addition, the Appellant proposed that, if needed, he could extend the interceptor ditch along the southern property line to the creek called Titman Creek. The creek flows from the pond through the Ellenwood Property. All of these land improvements, once done would leave the disposal field site free of any surface or high groundwater problems, which he believes originate with the pond. The Appellant pointed out that the ditch running along his southern boundary is not a natural watercourse or a creek as stated by the EHO. He also challenged the EHO's determination that the proposed field site did not meet the required setback distance to the creek which cuts through the Property. As well, the Appellant noted that a similar property located just north of the subject Property has an approved sewage disposal system on it, which he believes provides less treatment to the effluent than does the system he proposes to install. The Appellant expressed concern that the EHO had not responded to his suggestions about remedial works correcting the drainage, surface and water table problems associated with the Property. The Appellant believed that if he had been given "provisional" approval to construct the proposed system, he then could proceed with efforts to correct the water table and drainage problems. In conclusion, the Appellant stated that he had been discouraged by the flat rejection because he, too, wants to protect the environment and the community. The Appellant reiterated that he believes the creek setback to be greater than 100 feet. He stated, however, that he would proceed with the works designed by an engineer in an attempt to correct the water problem so that the works could then be evaluated. He noted that he believed that the wetland is a direct result of the pond overflowing and that he will have to deal with it. Noting that they were encouraged by progress made at the hearing, the Appellant stated that he believes that the proposal is workable and that he is prepared to move on it.

7 APPEAL NO. 97-HEA-25 Page 7 The Respondent's Position The Boundary Health Unit was represented at the appeal hearing by Mr. Nick Potter, Deputy Chief EHO, and by Mr. Brian Zacharias, the EHO who had considered the application and had rejected it. The reasons presented in support of rejection of the application were that the Property demonstrated insufficient permeable soil above the highest seasonal water table and was incapable of meeting adequate setback distances to potential breakout points and property lines. The proposed disposal mound is less than 50 feet from the potential wet area breakout point and only 15 feet from the south property line. This, they argued, "raises concerns for surface and ground water contamination from domestic sewage posing a potential public health risk." In addition to the EHO's evaluation of the inadequate soil conditions and extreme wetness of the site and general area, he noted that it is his understanding that the creek running through the Property is a "Class B" creek which might receive contaminating effluent from possible breakout points if adequate setback distances between it and the absorption field were not achieved. Mr. Zacharias expressed concern that water from the pond some 60 metres to the south overflows through the proposed disposal field site into a wetland on the other side of the field area [to the north-east], an area he found to be still wet in late May, with wet spots as late as July 30. With regard to potential breakout points into the drainage ditch along the property line adjacent the proposed absorption field, the EHO expressed concern that while the proposed corrective ditch, if deepened, may be located on the "uphill" side of the raised mound, the ditch would be deeper than the disposal field itself raising a concern that effluent could potentially breakout into the ditch. He expressed further concern that the perforated pipe proposed to be laid in the ditch could then allow effluent to enter the pipe with the drainage water and travel on into the creek. The EHO noted, as well, that the Boundary Health Unit had recently adopted guidelines for non-conforming lots with less than 48" of permeable native soil, and that these require 100' setback distances from property lines and from potential breakout points, and would require an engineer's guarantee as well as a restrictive covenant. With regard to the proposed package treatment plant, the Respondent stated that many similar plants allow high fecal coliform counts to enter absorption fields which, if located too close to a potential breakout point, can create a health risk. He noted that with raised fields there is a possibility of ground water mounding with water being brought up into the sand. To avoid this, he stated there must be at least a 24" vertical separation between the pipes dispensing the effluent and the groundwater table. The Respondent commented that, in his view, the proposal can be reworked, but that the interception of the pond water runoff must be absolute such that there would be no penetration into the sand mound, or any compaction of it.

8 APPEAL NO. 97-HEA-25 Page 8 With regard to his being able to grant a "provisional" approval, the EHO explained that a signature on a permit means to "go ahead", and to sign before the improvements to the Property are made would make the EHO liable for any problems later on. Explaining the procedure, the Respondent stated that if the plan were reworked and resubmitted, the Health Unit would do a further review and assessment of it. However, he noted that in order to ensure that the public health would be safe-guarded, the breakout point setback criteria must be addressed and an engineer's certification provided which states that performance standards would be met before approval could be considered. The Chief EHO, Mr. Nick Potter, stated that he believed that the setback issue can be addressed but that it may take interceptor ditches between the creek and the field area to control all overflow surface water as well as addressing the high groundwater table problem. In summary, the Respondent repeated that the Property does not satisfy section 2(2) of the Sewage Disposal Regulation (no effluent to be allowed to reach the surface of land...), and thus it creates a potential risk to the public health through the possible spread of disease. He noted that he believes that the water table is now too high, but that it could be monitored for another year. He recommended that Department of Fisheries and Oceans' approval be sought for any kind of discharge into the creek. Mr. Potter concluded by saying that before the Property could be reassessed, he would recommend that all of the concerns raised be addressed. DISCUSSION AND DECISION Did the EHO err in refusing to issue a permit for a sewage disposal system for the Property? The EHO rejected the Appellant's application for a sewage disposal permit because of the high water table in the area and the failure of the system to meet minimum setback distances. Because of the shallow depth of soil and high groundwater table, the Property in question clearly cannot meet the requirements for a "conventional" sewage disposal system as per the B.C. Sewage Disposal Regulation. The application for Lot 5 therefore must be considered under section 7(1), which gives the EHO the discretion to approve an alternate system (with conditions) if the EHO considers that it will safeguard public health. Under section 7(1) the EHO may waive the required 48" of permeable undisturbed native soil and permit fill to be added to increase the distance of the field tiles above the water table, but only if satisfied that there will be no threat to public health and only if the permit includes conditions which mitigate the shortcomings of the Property. Ministry of Health and local Health Unit policies assist the EHO in exercising discretion under section 7(1) and in establishing conditions for approval. Under section 7, however, all other requirements of the relevant Schedule must be met, with the exception of the clauses regarding soil depth, slope and percolation rate

9 APPEAL NO. 97-HEA-25 Page 9 and absorption field construction. These are the only sections which can be relaxed by the EHO, and he may include conditions in the Permit which remedy those particular failings of the site. As the Appellant's application is for an alternate package treatment system, Schedule 3 of the B.C. Sewage Disposal Regulation applies. The Appellant proposes to remedy the water table problem through the use of a raised sand mound absorption field and the deepening of a drainage ditch that separates the field and the pond that is responsible for the high water table. The base of the drainage ditch, which is located approximately 4 meters (13 feet) from the upper edge of the disposal field will be below the base of the absorption field. Run-off from this ditch will travel to a creek. The ditch will create a potential breakout at a distance that fails to comply with the recommended breakout of 50 feet as set out in section 4.4 of the B.C. On-site Sewage Disposal Policy. It also fails to comply with the even more onerous setback of 100 feet as required by the Boundary Health Unit policy. Additionally, it is noted that there is another breakout less than 50 feet below the field in the wetland area. Breakout distances are set by policy and are to be used at the discretion of the EHO. In this instance the Panel is concerned that having potential breakout points on both sides of the field within the minimum recommended distance creates a risk to public health. This is particularly so when it is possible that these breakouts could result in the contamination of both a creek and a wetland area. The EHO further rejected the application because the field was less than 100 feet from a creek and because it was less than 100 feet from property lines. There was no evidence to support the assertion that the creek is situated within 100 feet of the absorption field or that there was any potential of contamination of creek water, other than by way of a ditch. Accordingly, this reason for rejection of the permit is not supportable. Similarly, the distance to the property line which is reported to be 15 feet complies with the minimum 10 foot standard set out in the Schedule to the Regulation. The Boundary Health Unit policy requires a 100 foot setback to a property line when considering an alternate system under section 7 (1) of the Regulation. No justification was provided for this policy nor was there any evidence provided that the setback to the property line was not adequate. This reason for rejection of the permit is also not supportable. The Panel agrees with the EHO that the site at present with the present high water table cannot meet the requirements of the Sewage Disposal Regulation or policy because drainage and high ground water concerns have not been adequately addressed.

10 APPEAL NO. 97-HEA-25 Page 10 Could the EHO have issued a "provisional" permit to construct the proposed disposal system so that the owner could attempt to correct the drainage and water table problems in the course of the installation? Section 3 of the Regulation requires that a person not construct a sewage disposal system without a permit and that the EHO shall not issue a permit unless and until he/she is satisfied that the system will meet all of the requirements of the Act and Regulation and that there will be no risk to public health. The Panel finds that the EHO was correct in not issuing a permit until he could be satisfied that the ultimate use of the system would not contravene the Act or the Regulation. As there is no such thing as a "provisional" approval in either the Act or Regulation, the Panel finds the EHO s determination that he could not issue such a permit to be correct. The EHO must determine whether the Property in question can meet regulatory requirements once major corrections are made to the site and he has had an opportunity to re-evaluate it. Did the EHO fetter his discretion when referring to the Boundary Health Unit's policy for "Non-conforming" properties when considering the subject application? The May 1997 Boundary Health Unit Guideline for "non-conforming" lots (for Section 7(1) applications) states that where there is not the required depth of soil or the groundwater table is too high, "the disposal mound toe must have a minimum setback of 30 metres or 100 feet from boundary lines, domestic wells, water courses, drainage ditches and dwellings." The guidelines are there to help ensure consistency in the determination of what would generally be considered acceptable conditions toward the mitigation of failing sites. While the mandatory wording of the Boundary Health Unit's policy, with its several "musts", appears to fetter the discretion of the EHO, the Panel is aware that it is "how" the EHO applies the policy that is the main issue not what the policy says. As well, in this particular case the EHO repeatedly expressed concern for the public health and for protection of the creek. The Panel is satisfied the EHO did not rigidly apply the "non-conforming parcel guidelines" when considering the permit and therefore did not "fetter his discretion". He considered other matters related to the proposal, including the regulations, possible public health risk through contamination of ground and surface water and possible contamination of the creek if ditch water containing effluent or pathogens were to reach it via a breakout point. Finally, the Panel notes with some concern that the language of the Boundary Health Unit policy for "Existing Non-Conforming Land Parcels" requires some amendment. The policy is worded such that it could lead an EHO to fetter his or her discretion because it appears to be mandatory in nature. The policy is not mandatory and all reference to the word "must" within that policy, should be deleted.

11 APPEAL NO. 97-HEA-25 Page 11 DECISION In making its decision, the Panel of the Environmental Appeal Board has considered all the relevant documented evidence and all comments made during the hearing, whether or not they have been specifically reiterated here. The Panel concludes that the Appellant did not successfully demonstrate that the EHO erred in refusing to issue a permit or that the disposal system he proposed to install would adequately safeguard the public health by successfully treating all effluent and preventing it from entering surface or groundwater or from breaking out into the proposed nearby deep ditch or into the adjacent wetland. The Panel is satisfied, therefore, that the EHO exercised his discretion properly, given the site conditions and the proposal before him. The Panel, therefore, upholds the EHO's May 30, 1997, decision to refuse to issue a permit for the subject Property and dismisses the appeal. Carol Martin, Panel Chair Environmental Appeal Board November 28, 1997