APPEAL NO. 94/31 HEALTH

DATE OF HEARING:		June 8, 1995
PLACE OF HEARING:		Richmond, BC

APPEARING:	For Appellant
	Spokesperson:	John Enevoldson, P. Eng.
	Witness:	Peter Peart
	For Respondent
	Spokesperson:	Tim Adams
	Witnesses:	Tom Weston
		Bill Purtell

This was an appeal against the December 19, 1994, denial of a Sewage Disposal System for Lot 3, Block 6, DL 1397, Plan 4479 - Garden Bay.

APPEAL

The authority for the Panel of the Environmental Appeal Board to hear this appeal is found in the Health Act, s.5(3)(a), and in the Environment Management Act, s.11.

BACKGROUND

This appeal concerns the rejection of an application for the installation of an on-site Sewage Disposal System on a property [the "Site"] located in the Garden Bay area of Pender Harbour.

The Site is legally described as Lot 3, Block 6, District Lot 1397, Plan 4474. It is approximately 1/4 acre in size and is ocean waterfront. At the present time the applicant also owns the adjoining Lot 2; Lot 3 appears to have had for some time common ownership with the adjoining Lot 2 and has presumably in the past been treated by the owner of Lot 2 as part of the grounds for that property.

The Appellant advised that he wants to develop Lot 3 so that he can pass on this property and Lot 2 to his children. The owner's plans for the properties are however irrelevant to this appeal.

The Appellant applied for a permit to install an on-site Sewage Disposal System designed by John Enevoldson, a professional engineer. The application for the permit was refused by the Respondent. The primary reasons for the refusal are set out in a letter dated May 23,1995, from Timothy H. Adams, Environmental Health Officer.

At the hearing evidence was given by the Appellant and by two professional engineers, namely, John Enevoldson and Peter Peart on behalf of the Appellant and by Timothy Adams, Tom Weston and Bill Purtell on behalf of the Respondent. Mr. Greg Carriere, Regional Public Health Engineer, was not called as a witness for the Respondent although a report (Memorandum) from Mr. Carriere was included in the material. The Appellant did not have the opportunity to cross-examine Mr. Carriere with respect to the contents of this report.

Mr. John Enevoldson is a civil engineer with recent experience in the design of on-site Sewage Disposal Systems and Peter Peart is a Geotechnical engineer with many years of experience in his area of expertise with impressive professional credentials. Both witnesses were qualified to give expert opinion evidence.

The proposed on-site Sewage Disposal System was designed by John Enevoldson. It consists of the following components:

• A storage tank;
• A secondary treatment plan;
• A 600 imperial gallon pump chamber;
• An absorption field utilizing a pressure distribution method of ground disposal with 140 lin. feet of 1" PVC pipe;
• A 5-foot gravel filled trench located below the absorption field;
• Treatment of the earth, filling and contouring at various points.

In the remainder of this decision this disposal system will for purposes of brevity be referred to as the Enevoldson Proposal.

There are two abandoned driveways on the Site. These driveways have at one time provided access to adjoining lots - they do not appear to have ever been subject to major vehicular traffic.

The Site is extensively landscaped with a number of mature trees. Peter Peart referred to it as a Stanley Park.

LEGAL CONTEXT

This appeal is taken pursuant to section 5 of the Health Act. The Environmental Appeal Board may confirm, vary or rescind the ruling under appeal.

The relevant regulation is BC Reg. 411/85 "Sewage Disposal Regulation", a regulation passed pursuant to section 5 of the Health Act.

Section 6 of BC Reg. 411/85 regulation provides as follows:

Subject to section 7, no sewage disposal system constructed after the date of this regulation which involves the use of a septic tank or 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

Subsection 7(1) provides that "where a medical health officer ... 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."

Ministry of Health Policy 6.1 states "To accommodate an owner of an existing lot, an alternate system shall be considered." Although this is a policy and hence does not have the force of the Act or the regulations it is in the spirit of the law; namely, that an owner of an existing lot will be accommodated in the development of the lot provided that this development does not constitute a risk to public health as stated in the regulations.

REVIEW OF THE DECISION OF THE RESPONDENT

The Timothy Adam's May 23, 1995, letter sets out the following major concerns with the Enevoldson Proposal:

• In some parts of the Site there is less than 4 feet (1.25 metres) of native porous soil;
• Excavation and compaction of the native soil has adversely affected site requirements required for a Permit;
• Unable to provide length of absorption field as that required for a conventional septic tank system;
• Insufficient area to allow 10-foot (3 metres) centred trenches;
• Slope of the absorption field exceeds 30%;
• Site does not meet policy requirements regarding breakout points.

Peter Peart's evidence is that there is approximately 1.5 metres (5 feet) depth of permeable soil over the relevant area. This permeable soil is a mixture of organic and inorganic material (largely gravely sand and sandy gravel) and meets all percolation requirements with a percolation rate of 2.5 minute per inch. Glacial till underlies the surface soil; this glacial till is largely impermeable, The evidence is that the 1.5 meters (5 feet) of permeable soil has very good (effluent) treatment qualities.

Based on the whole of the evidence but in particular on the expert evidence of Peter Peart the Panel finds that the groundwater table is coincident with the upper layer of the glacial till. The upper level of the glacial till is approximately 1.5 to 2 meters (5 feet to 6.5 feet) below the surface. This finding with respect to the groundwater table is supported by the test holes with the possible exception of one hole. No water was observed in the two deepest test holes (respectively 7-1/2 and 8-1/2 feet deep[25 to 28 metres]) in the middle of the rainy season. The permeable soil is in an unsaturated condition in the winter.

Peter Peart gave expert evidence concerning the issue of the degree of modification of the soil structure in the old driveway due to compaction. His evidence was that there had not been significant compaction but that in any event the soil could easily be restored to its natural condition.

The evidence established that the driveway area had not been measurably compacted but to the extent that any compaction had occurred this would be remedied by the Enevoldson Proposal. Existing excavations in other parts of the site are insignificant - in any event the Panel is not convinced that there is less than 1.2 meters (4 feet) of native, porous soil at such sites.

I find that the proposed on-site waste disposal system does not include a built up absorption field such as is defined in the policy statement. A Built Up Absorption Field is defined as follows:

An absorption field that has been raised above the natural ground level by the placement of a limited prescribed amount of approved fill.

This describes a field which is an area of land uniformly raised above the natural ground level. The Enevoldson proposal contemplates returning the relevant area to its natural contours in some parts and some contouring in other parts to reduce the slope to 30%.

This definition describes something more than the minor alterations proposed by the Appellant which included some contouring to return the field to its natural slope at several locations.

Accordingly the Panel finds that the required length for the absorption field are those set out in Schedule 3 which are the package treatment plant absorption field lengths and that the Enevoldson Proposal exceeds these requirements substantially.

The runs in the absorption field are required to be three meters apart if the slope is in excess of 30 percent. John Enevoldson noted that the spacing between the trenches for runs 1 & 3 (primary field) are 14 feet (4.3 meters) and between runs 2 & 4 (reserve field) are 17 feet (5.2 metres). The Panel finds that this manner of interpreting the spacing requirements as set out in the regulations is appropriate in the circumstances and that the operational runs are more than 3 meters (9.8 metres) apart.

Various estimates were given as to the ground slope of the disposal field; however, the current slope is at least 35%. The Enevoldson Proposal proposes a reduction to 30% by adding approximately 6 inches of fill at the upper edge of the existing rock wall. The regulations do not prohibit an engineered reduction of a slope. Accordingly for the purposes of this appeal and the consideration of the Enevoldson Proposal the slope should be considered to be 30%. In any event section 7 of BC Regulation 411/85 allows for exceptions to the slope requirement having "regard to safeguarding public health".

Ministry of Health Policy - On-Site Sewage Disposal Chapter 4.4 says "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 distance from a sewage disposal system and potential downslope breakout points, such as present or future roadcuts, excavations, an exposed impervious layer in a ditch or a curtain drain, under normal conditions should generally not be less than 15.25 meters (50 feet)".

The Respondent contended that the terraced cuts in the surface of the Site, the abandoned driveway, excavations for foundation walls and even the property line should be considered as potential breakout points. The property line was included as a potential breakout point on the basis that a future owner of the adjoining lot could excavate along his property line.

What constitutes a breakout point? This is a matter which is possibly not treated consistently; for example, in the instant case the Respondent appears to suggest that any cut into the top four feet of permeable soil constitutes a break out point or potential break out point whereas it might be argued that to constitute a breakout point or a potential breakout point the cut must reach through to the underlying impermeable alluvial fill. The latter interpretation may be based on the assumption that once the water leaves the pressure distribution system it filters down to the top of the impermeable layer and then travels along the top of the impermeable layer.

Based on Peter Peart's testimony there is absolutely no reason to believe that the domestic sewage in the instant case will reach the surface of the land or discharge into a surface body of fresh water [per section 2(2)] of BC Regulation 411/85.

In any event - even if the Respondent's understanding of an existing breakout point was largely accepted (which the Panel does not) - the Panel finds that the Enevoldson Proposal eliminates any potential breakout points within fifty feet of the disposal field. The only existing areas on Lot 3 which both parties acknowledged might arguably be potential breakout points on Lot 3 are a rock wall constructed on the site by a previous owner and perhaps the Roadway. The Enevoldson Proposal eliminates both the rock wall and the roadway as potential breakout points. The regulations do not prohibit an engineered elimination of breakout points or potential breakout points. It should be emphasized that the Panel has not made a finding that either the rock wall or the Roadway are actual breakout points.

Furthermore the Panel does not accept the contention of the Respondent that the boundary of the property can be considered a potential breakout point. It is a somewhat unlikely scenario that a future owner of Lot 2 would excavate along the boundary between the properties. Surely a potential breakout point is not so large a concept as to encompass any future event however, unlikely. In any event the owner of Lot 3 could probably enjoin a future owner of Lot 2 (or Lot 4) from removing lateral support for (the ground of) Lot 3.

John Enevoldson's evidence, which is accepted, is that no actual breakout points have been observed by anyone in the recent past.

Peter Peart was not able to identify any actual breakout points including in the beach area. He found no indicia of a breakout point in the beach area. Based on the evidence, including Mr. Peart's, that once the largely purified water leaves the secondary treatment plant and has travelled through the field, anything left would percolate through the 48 or more inches of permeable soil and probably end up in a fracture in the substratum.

DECISION

The Enevoldson Proposal is a well thought out Sewage Disposal System with a number of built-in safeguards. Despite the moderately steep terrain and the relatively small area of the Lot the Panel believes that with the proper implementation of this system there is little likelihood of effluent from this particular Lot reaching Hospital Bay or otherwise endangering public health.

In conclusion the Panel finds that the Enevoldson Proposal complies with the Health Act and regulations passed there under. Accordingly, the appeal is allowed.

More particularly the Panel finds that the Enevoldson Proposal substantially complies with Schedule 3 (including sections 11, 12, and 18); however, if any parts of the Enevoldson Proposal do not comply with sections 11, 12, and 18 the Panel finds that a permit can be issued such that with the impositions of the conditions as hereinafter outlined, the public health can be safeguarded as contemplated by the Act and regulations.

CONDITIONS

The following conditions will apply:

a) The system must contain all the components set out in the Enevoldson Report. This includes the following:


i. A secondary treatment plant

ii. A storage tank

iii. A 600 imperial gallon pump chamber

iv. An absorption field utilizing a pressure system

v A safety trench

vi. Treatment of the earth, filing and contouring at various points


b) The Appellant must use an approved secondary treatment plant - according to the evidence there are only two approved systems at the present time. The Ministry may choose either of these systems. Mr. Peart recommended a Biocycle 5800 Package Treatment Plant - his evidence was that the effluent once treated by this system is practically drinkable. The Ministry however advised that this system is not yet approved. Alternatively the Respondent may choose this system if approval can be obtained for it.


c) Both Mr. Enevoldson and Mr. Peart gave evidence that there is excellent vegetation on the Site. This vegetation was advanced as an integral and important part of this proposal. Mr. Enevoldson indicated that the Appellant was prepared to have the trenches in the absorption field for the pressure distribution system dug in order to protect the vegetation. Given the importance of preserving the vegetation and the slope of the terrain, the Ministry of Health may require that all trench work be dug so that there is minimal disturbance of the vegetation.


d) Before the permit is issued the easement registered over Lot 3 (location of driveway) must be cancelled and a State of Title Certificate confirming such must be provided to the Environmental Health Officer.


e) Additionally the Minister of Health may require that a covenant pursuant to section 215 of the Land Title Act be registered against the Property. This covenant would require that the septic system be installed and maintained as set out in the Enevoldson Proposal.



f) The permit must be issued on or before the later of the following two dates:


i. November 30, 1995

ii. That date one month after the date that the driveway easement has been discharged from the Title and the section 215 covenant -if required by the Respondent - has been registered against the Title.


g) Mr. Enevoldson advised that the Appellant was prepared to construct a safety trench across the property. This trench will be required as part of the system unless the Respondent waives the requirement.

h) All earth treatment including scarifying, contouring, back filling, etc.,, referred to in the Enevoldson Proposal must be completed to acceptable standards using approved materials.

i) The Respondent may require reasonable modifications to the specifications for the pressure distribution system.

j) The Environmental Health Officer may specify reasonable inspection requirements during the course of installing the System.

k) The Sewage Disposal System should be certified installed in accordance with the Enevoldson Proposal (as herein modified) by a professional engineer (which may be Mr. Enevoldson).


j) Any of the above, where appropriate, can be included in the conditions attached to the permit to be issued by the Respondent. The Respondent can also include reasonable periodic inspection and maintenance requirements for the System.

David Brown, Panel Chair

Environmental Appeal Board

August 17 , 1995