APPEAL NO. 94/33 HEALTH

DATE OF HEARING:		July 21, 1995
PLACE OF HEARING:		Vancouver, BC

APPEARING:	For Appellant
	Spokesperson:	Troy Vassos
	For Respondent
	Spokesperson:	Judi Ekkert

This appeal concerns the rejection of an application for the installation of a sewage disposal system ("Disposal System") on a property (the "Site") located in the Sunset Beach area of West Vancouver.

The Site is legally described as Lot 2, Block 2, District Lot 2365, Plan 4095. It is approximately 110 feet by 880 feet in size and is ocean waterfront.

The Appellant proposes to construct a large residence on the Site. The house will have 5,832 ft2 with two bedrooms and the potential for two more bedrooms and six bathrooms with the potential for two more bathrooms. Additionally it will have another 5,000 ft2 of garage and storage space.

The Appellant applied for a permit to install a sewage disposal system designed by Troy Vassos, a professional engineer. The application for the permit was refused by the Respondent. The primary reasons for the refusal are sumarized in the Respondent's Statement of Points filed with the Environmental Appeal Board on March 16, 1995.

At the hearing evidence was given by Troy Vassos for the Appellant and by Judi Ekkert for the Respondent. The Respondent did not call any engineering evidence in rebuttal to the Appellant's Troy Vassos.

Mr. Vassos is an environmental engineer with recent experience in the design of sewage disposal systems and with many years of experience in his area of expertise. He has impressive professional credentials. The witness was qualified to give expert opinion evidence.

The proposed sewage disposal system consists of the following components:

a. A septic tank;

b. A secondary treatment plant (multi-flo unit);

c. Sewage disposal based on marine outfall at 24-metre depth.

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

During the course of the hearing the Appellant through Mr. Vassos offered to extend the marine outfall so that discharge was at 32-metre depth and additionally proposed replacing the multi-flo unit with an intermittent sand filter treatment system which was described in Exhibit 4. With this system the multi-flo unit is replaced by a pump chamber and an intermittent sand filter (the amended Vassos Proposal will be referred to hereinafter as the "Vassos Proposal").

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.

Subsection 3(1) of the BC Reg. 411/85 provides that:

"3(1) No person shall construct, install, alter, or repair a sewage disposal system or cause it to be constructed, installed, altered or repaired unless he holds a permit."

Section 8 of the BC Reg. 411/85 provides as follows:

"8. A local board has jurisdiction to control discharges of effluent to tidal water, and may, with the approval of the Provincial Health Officer, by order


(a) fix or set minimum distances which must exist between high water mark and any part of the sewage disposal system, and


(b) prohibit discharges to tidal water in circumstances where discharge may constitute a health hazard.

No submissions were made as to whether or not section 6 of BC Reg. 411/85 would have any application to any part of this application.

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 objectivized in the regulations.

REVIEW OF THE DECISION OF THE RESPONDENT

During the course of the hearing Judi Ekkert acknowledged that the basis of the Respondent's denial of the Permit was that on November 26, 1975, the "North Shore Union Board of Health" had passed a resolution which was said to "prohibit discharge into tidal water." Because the Respondent proceeded from the assumption that this resolution governed the situation, there does not appear to have been a serious consideration of the technical aspects of the Appellant's application.

The November 26, 1975, resolution is contained in Exhibit 6 in this hearing. It does not actually "prohibit discharge into tidal water" - it merely says that the Local Board of Health may prohibit discharges into tidal water.

The Appellant argued that this resolution was ultra vives the Local Board of Health at the time that it was passed. Whether or not this is the case section 8 of BC Regulation 411/85 made pursuant to the Health Act, at a date subsequent to 1975, provides that a local board has jurisdiction to control discharges of effluent to tidal water; however, it may by order "prohibit discharges to tidal water in circumstances where discharge may constitute a health hazard" only with the approval of the Provincial Health Officer. Presumably then it always has had jurisdiction to control the discharge of effluent into tidal water based on the application of reasonable criteria, but it can proceed to make a blanket prohibition on discharge into a specific area only where it has been shown that such discharge may constitute a health hazard and only if the making of such an order has the approval of the Provincial Health Officer. There was no evidence presented at this hearing to show that such approval was ever given. It also may well be that the "order" of the Local Board would have to have occurred subsequent to the proclamation of this regulation.

The Panel was not advised if section 8 of BC Regulation 411/85 replaced an earlier similar regulation.

In any event even if the 1975 resolution is valid and enforceable it does not constitute a blanket prohibition of "outfall". It was presumably intended that discharges into tidal water would be prohibited where such a discharge may constitute a health hazard. This would be the jurisdiction of the local board per the first part of section 8; namely, "A local board has jurisdiction to control discharges of effluent to tidal water…"

The Panel sees the real issue before it is whether or not this particular proposal for discharging effluent into the tidal water "may constitute a health hazard". If such is the case then not only section 8 of BC Regulation 411/85 but also section 3 provides authority for refusing the permit.

In determining whether a proposed outfall may constitute a health hazard there has to be reasonable evidence of a possible health hazard. It is not sufficient to speculate that given the occurrence of an accidental event or a breakdown of the system that there might be a health hazard. At the very best there would have to be some evidence to show that because of unusual weather or geological conditions or because of unreliability of the disposal system proposed that there is some likelihood of such occurring. There was no such evidence presented at this hearing.

If the effluent is treated in the manner set out in the Amended Vassos Proposal (properly installed and maintained), would this effluent constitute or might this effluent constitute a health hazard? In this hearing all of the technical data touching on this issue was presented by the Appellant's expert witness, Troy Vassos. The Respondent did not call any technical evidence of its own (perhaps because it relied on its position that the 1975 resolution constituted a total prohibition). The Respondent's representative acknowledged that she did not have the technical expertise to comment on the technical specifics of the Appellant's application.

If the outfall occurs at a 32-metre depth it is very unlikely that effluent will reach the surface. The evidence before the Panel was that the effluent plume, once discharged, would rise a predicted maximum of 5.3 metres. There would be 98% bacterial die-off in the plume. The plume would disperse at least 26 metres below the surface.

Mr. Vassos expressed the view that all effluent would be "treated" simply by discharging it a sufficient depth. He said that the secondary treatment process was added to the Vassos Proposal to provide additional assurance.

A multi-flo unit would initially reduce the bacteria count in the effluent by about 90%. This would be increased to over 99% using the intermittent sand filter system.

The Respondent expressed concern that a break could occur in the sewage outfall pipe which would go undetected for a long period of time. Mr. Vassos acknowledged this possibility. However, if the effluent is highly treated before it reaches the ocean, as apparently would be the case with an intermittent sand filter system, there is "double" safety. If one part of the system does not work the other part will achieve almost the same effect.

Judi Ekkert on behalf of the Respondent confirmed that in fact an intermittent sand filter system is now a province wide approved technology and accordingly could be employed in the instant case.

DECISION OF THE PANEL

Based on the evidence before it, the Panel finds that the Amended Vassos Proposal will result in the satisfactory treatment of the effluent.

The Respondent suggested that the onus was wholly on the Appellant to prove that a discharge to tidal water does not constitute a health hazard. The Panel doubts that such is the case; however, it is not necessary to decide this issue because the Appellant who produced a wealth of technical data through Mr. Vassos (which technical data was largely unchallenged), has met the onus.

In conclusion the Panel finds that the Amended Vassos Proposal, subject to the conditions outlined below, would not result in discharges to tidal water in circumstances where discharge may constitute a health hazard. Accordingly, the appeal is allowed subject to the conditions.

CONDITIONS

The following conditions will apply:

a. The System must contain all the components set out in the Amended Vassos Proposal. This includes the following:


i. A storage tank;

ii. A pump chamber;

iii. An intermittent sand filter system;

iv. A marine outfall at a depth of 32 metres.



b. The intermittent sand filter must meet all reasonable specifications of the Respondent. The design should at the very minimum incorporate the Washington State guidelines set out in Exhibit 4 except to the extent that these conflict with government of British Columbia design requirements.


c. The marine outfall shall be delivered by piping properly constructed and secured. The Respondent may set reasonable specifications for such.


d. The above should be formally incorporated in an amended application.


e. If for any reason the Respondent's representative incorrectly stated the "approved status" of the intermittent sand filter system, then that part of the system will have to be replaced by the secondary treatment plant referred to in the Vassos Proposal. To this should be added ultraviolet treatment; however, the parties may make additional representations in writing to the Panel on this point.


f. Additionally, the Respondent may require that a covenant pursuant to section 215 of the Land Title Act be registered against the Site. This covenant would require that the septic system be installed and maintained as set out in the Amended Vassos Proposal.


g. The permit must be issued no later than one month after receipt of the Amended Vassos Proposal and the registration of the section 215 covenant (of required).


h. 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 29 , 1995