APPEAL NO. 99WAS-23(a)

In the matter of an appeal to the Environmental Appeal Board under section 44 of the Waste Management Act, R.S.B.C. 1996, c. 482.

BETWEEN: The City of Cranbrook
APPELLANT
AND: Assistant Regional Waste Manager
RESPONDENT
AND: Canadian Pacific Railway
THIRD PARTY

BEFORE: A Panel of the Environmental Appeal Board
Toby Vigod, Chair
DATE OF HEARING: Conducted by way of written submissions
concluded on April 28, 1999

APPEARING: For the Appellant :Christopher Murdy, Counsel
For the Respondent:Dennis Doyle, Counsel
For the Third Party:Clifford Proudfoot, Counsel

STAY DECISION

APPLICATION

On April 7, 1999, the Assistant Regional Waste Manager ("the Assistant Manager"), amended the City of Cranbrook’s Waste Permit PE-04148 ("the Permit") to require Cranbrook to manage the water level in its sewage effluent storage lagoon #2 so that the level does not exceed 824 meters above sea level (824 m – asl). The amendments require Cranbrook to submit a management plan on or before April 23, 1999, detailing how the water level in lagoon #2 will be reduced and maintained at or below 824 m-asl, including a schedule for implementation of the management plan.

On April 14, 1999, Cranbrook appealed the decision and requested a stay of the amendments until engineering opinions justify a significant change to the effluent storage elevation, or until the Board makes a decision on the merits of the appeal.

Canadian Pacific Railway ("CP Rail") was granted full party status in the proceedings, as the Board determined that it may be affected by the decision in this appeal.

This application was conducted by way of written submissions.

BACKGROUND

The treated effluent from Cranbrook’s aerobic sewage treatment system is pumped into two sewage lagoons located about 10 kilometres northeast of Cranbrook, in a narrow valley that extends southeastwards from the St. Mary’s River. After a minimum of 30 days storage in the lagoons, the effluent is disposed via spray irrigation on agricultural fields located primarily southeast of the ponds.

The Permit was originally issued to Cranbrook in 1975. Construction of the lagoons began in 1977, and they were first filled with treated sewage effluent in 1979.

Sometime in the early 1970’s, CP Rail constructed tracks in the upper portion of the steeply sloping south side of the St. Mary’s River valley to act as its main access line to the U.S. Pacific Northwest, and its only route to Castlegar, Nelson and the Trail Smelter. CP Rail reports that approximately six to eight 100-car trains per day currently use this track, often carrying hazardous materials for the Trail Smelter.

From March to May of 1997, CP Rail experienced some instability at Mile 99 of the tracks, located approximately 5 miles north of Cranbrook’s sewage lagoons. CP Rail subsequently invested approximately $1.5 million to re-establish the integrity of the railway in that area. It now reports the continuing risk of slope instability and landslides near Mile 99, and undertakes frequent and regular inspections to evaluate the slope conditions and the groundwater level in the area.

CP Rail reports that in the fall of 1997, officials from the Ministry of Environment, Lands and Parks ("MELP") informed it that the instability of the track might be related to Cranbrook’s sewage treatment system, and, in particular, the effect of the effluent lagoons on the flow of groundwater in the area. As a result, CR Rail retained the engineering firm Clifton Associates Ltd., to review the track instability problems at and around Mile 99, and prepare a geotechnical report pertaining to the Cranbrook sewage facility and its impact on the local groundwater regime. The Clifton report, completed on May 28, 1998, concludes that seepage from effluent lagoon #2 poses a risk to the stability of the tracks around Mile 99 when the elevation of the stored effluent in the lagoon reaches 824 m-asl and higher because it causes the reversal of the groundwater flow towards the tracks (rather than its natural direction away from the tracks). The Clifton report also concludes that the risk to the tracks can be mitigated by reducing the water level in lagoon #2 to a level below 824 m-asl.

Apparently based largely on the findings in the Clifton report, on April 7, 1999, the Assistant Manager amended the Permit. The terms of the amendments most relevant to this application are reproduced, in part, below:

  1. Maximum Operating Level for Effluent Storage Lagoon #2

    2. The permittee shall manage the water level in effluent storage lagoon #2 located approximately 3 kilometres south of Mile 99 Cranbrook Subdivision of the Canadian Pacific Railway so that the maximum water level in effluent storage lagoon #2 does not exceed an elevation of 824 meters above sea level.

  2. Survey to Determine Elevation Above Sea Level

    3. The permittee shall provide data confirming the water level in effluent storage pond #2 to the Regional Waste Manager on or before April 16, 1999.

  3. Interim Effluent Storage Management Plan

The Panel understands that Cranbrook has not submitted the data and management plan required on April 16 and 23, respectively. Cranbrook reports that a labour dispute is inhibiting its ability to undertake this work.

ISSUE

The sole issue arising from this application is whether the Panel should grant a stay of the permit amendments until an engineer’s report justifies that the amendments are necessary, or until the Board reaches a decision on the merits of this appeal.

The authority of the Board to grant a stay in a Waste Management Act appeal is derived from section 48 of that Act, which provides:

In North Fraser Harbour Commission et al. v. Deputy Director of Waste Management (Environmental Appeal Board, Appeal No. 97-WAS-05(a), June 5, 1997) (unreported), the Board concluded that the test set out in RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.) applies to applications for stays before the Board. That test requires an applicant to demonstrate the following:

  1. there is a serious issue to be tried;
  2. irreparable harm will result if the stay is not granted; and
  3. the balance of convenience favours granting the stay.

The Panel notes that the onus is on the Applicant to demonstrate good and sufficient reasons why a stay should be granted.

DISCUSSION AND ANALYSIS

Serious Issue

In RJR MacDonald, the Court stated that unless the case is frivolous or vexatious, or is a pure question of law, the inquiry generally should proceed onto the next stage of the test.

Cranbrook argues that the changes to its Permit are based on a "potential claim" by CP Rail regarding alleged damage to its tracks as a result of slope instability. It argues, generally, that the permit amendments are not based on any technical evidence that would indicate that a change in the maximum elevation is necessary for the protection of the environment. To the contrary, it maintains that the sewage lagoons have operated without a problem for a number of years and there is no causal connection, which has been established between the sewage lagoons and any slope failure causing damage to CP Rail.

The Panel finds that the issues brought to light in this appeal are neither frivolous nor vexatious: potential slope failures at the location in question present a serious risk to public health and the environment. Nor are the present issues pure questions of law. The appeal demands a predominantly factual inquiry as to whether and to what extent the effluent levels in the lagoon affect the stability of the relevant portion of CP Rail’s tracks. The expert reports presented by CP Rail and Cranbrook offer differing opinions on this question.

Irreparable Harm

Cranbrook submits that it will suffer irreparable harm if the stay is not granted. It says that it will be a "significant inconvenience" to attempt to lower the effluent level in lagoon #2 at this point in time, resulting in both a significant expenditure of public funds, and significant short-term operational problems.

Cranbrook says that "section 1 of the permit amendment specifically requires immediately that the level be reduced to 824 meters," and notes that the current water level in lagoon #2 exceeds that. Cranbrook submits that in order to reduce the water level, it would have to consider alternative methods, which could be "extraordinarily expensive."

Cranbrook also submits that the irrigation program for the summer has not yet begun, so it cannot simply lower the water level in lagoon #2 by irrigating already wet fields. It says, however, that it "is prepared to commit to attempting to lower the levels by maximizing the amount of irrigation usage, as soon as that is reasonably practical."

The Assistant Manager says that with respect to the irreparable harm test, "the appellant’s case is woefully inadequate." He submits that any harm that Cranbrook may suffer is adequately compensable in monetary terms.

Moreover, the Assistant Manager says that there are viable alternatives to storing the effluent in the lagoon. He says that there are places where water ponds at the spray irrigation site could safely be utilized as temporary effluent storage locations using existing piping and some temporary piping. The Assistant Manager also suggests that some effluent from storage lagoon #2 may be transferred into storage lagoon #1, or temporarily discharged directly into the Kootenay River. He submits that, to his knowledge, Cranbrook has not even explored these temporary options.

Finally, the Assistant Manager submits that the amendment allows for flexibility in implementation, while the immediate requirements are not onerous. He states that "the provisions of the order have minimized the inconvenience by providing for a planned and controlled reduction of the water level to the stipulated elevation of 824 m-asl." He submits that the immediate requirements under amendment items #2 and #3, respectively, are that the city must determine the lagoon level and submit an interim plan for reduction to 824 m. He states that both he and (he understands) CP Rail are willing to work with the city in developing short and long term strategies to address this matter.

CP Rail argues that Cranbrook has not shown that it will suffer irreparable harm if the requested stay is not granted. CP Rail submits that Cranbrook’s concerns about complying with the amendments are purely economic, and do not constitute irreparable harm.

In RJR-MacDonald, the Court stated:

On the information presented, the Board finds that Cranbrook has failed to show that it will suffer irreparable harm if a stay is not granted. The amendment does not require the city to reduce the effluent level immediately, but rather to undertake a survey and initiate a plan to lower the level. While there will be some financial expenditure required to comply with these amendments, this "harm" can be quantified, and can be cured should the Board find, after the hearing on the merits of the appeal, that the amendments were illegal or unnecessary.

From the submissions, it appears that Cranbrook’s main concern is the inconvenience and costs associated with lowering the effluent level in lagoon #2. However, as noted above, there is no deadline specified for meeting the new maximum level of 824 m – asl. Furthermore, the Board anticipates that a hearing can be held and a decision rendered on the merits of the appeal within the next six months. By that time, the effluent level will likely have begun to fall due to irrigation use.

Therefore, the Board finds that the potential harm to Cranbrook if a stay is not granted is not irreparable. It is purely economic, in that the city will have to complete a survey and formulate a plan. Based on that plan, the city may have to begin lowering the effluent level, but this would likely have occurred in the short term regardless of the amendments, as part of the city’s normal use of the effluent.

Balance of Convenience

Normally, where the Applicant fails to show that it will suffer irreparable harm, it is not necessary to make a determination on this issue. However, even if there had been some irreparable harm shown by Cranbrook, the Board would have found the balance of convenience to favour refusing a stay.

This branch of the test requires the Board to determine whether greater harm will result from the granting of, or refusal to grant the stay application.

Cranbrook submits that the balance of convenience weighs in its favour. It points out that the ponds have operated at the currently permitted level for over 20 years, noting that two years have passed since CP Rail’s slope failure in 1997. Cranbrook argues that there is no causal connection between the effluent levels at the lagoon and CP Rail’s slope failure concerns.

In support of its position, Cranbrook submitted a report prepared by the engineering firm Piteau and Associates dated April 19, 1999. At page 2, the Piteau report states that "the slope instability along the railway line is more likely caused by extreme climate conditions and local area runoff, and is not the result of elevated sewage pond levels." At page 9, the Piteau report states that "[b]ased on data available, it is considered that a hydraulic connection is very unlikely, and hence, the chances that the City of Cranbrook’s waste water ponds have contributed to railway line instability is considered very remote". Therefore, the argument is that Cranbrook will suffer greater harm by being required to comply with amendments which will not have the intended effect on CP Rail’s railway line.

The Assistant Manager says that although the amendments will undoubtedly "inconvenience" Cranbrook to some extent, the terms of the amendments minimize the inconvenience by providing the opportunity for a planned and controlled reduction of the water level to the permitted elevation of 824 m -asl.

He further submits that

CP Rail says that the primary reason for the amendments is to ensure the safety of the public, the environment and CP Rail’s workers. It states: "If the slope is allowed to become destabilized due to increased water flows the track bed could be degraded and increase the potential for derailment."

CP reports that the trains on this track are often carry hazardous materials for the Trail Smelter, and the derailment of such a train could cause significant environmental damage, particularly given the close proximity of the track to the St. Mary River.

By failing to take the action required by the amendments, CP Rail submits that the environment could be irreparably harmed, and public health and the safety of CP Rail workers could be jeopardized if slope failure occurs.

CP Rail submits that seepage from the effluent storage lagoons into the surrounding ground "has periodically caused wastewater to augment groundwater levels in a northerly direction onto [CP Rail’s] property," where it causes slope instability.

In weighing the balance of convenience, the Panel has referred to data on water levels in lagoon #2 (Table B-2 Piteau Report). It notes that the level was constantly above 824 m-asl from November 24, 1997 to August 17, 1998, and again from December 14 through December 28, 1998. The Assistant Manager reports that MELP staff have been visually monitoring the lagoons during the spring of 1999, and have observed the level of lagoon #2 rising. The Assistant Manager reports that the elevation reached approximately 827.5 m-asl by April 7, 1999.

Again, the Panel notes that the amendments do not require that Cranbrook reduce the level of effluent to below 824 m-asl immediately. To the contrary, the Assistant Manager has given Cranbrook an open-ended period of time in which to do so. The only firm time commitments Cranbrook is required to meet in the Permit have passed – for data reporting and submitting a plan as to how will reduce water level in the pond.

The Board acknowledges that Cranbrook’s failure to perform the survey and create an interim management plan for effluent storage this season will not have an immediate impact on slope stability: the survey and plan will not reduce the effluent levels in the lagoon. In fact, if one accepts the conclusions of Piteau, even reducing the lagoon levels will not have an impact as Piteau is of the view that a connection between the lagoons and the subject slopes is unlikely. However, a proper evaluation of the conclusions reached by Clifton Associates, as compared and contrasted with those of Piteau Associates, is not possible at this preliminary stage.

In balancing the respective harms that may flow from granting or refusing to grant a stay, the Board must assess the respective risks associated with each course of action. If, in fact, the effluent level in the storage lagoon does affect groundwater flow and slope stability in the vicinity of Mile 99 of the track, further delay in implementing change could hasten slope failure and lead to significant harm. The Board accepts CP Rails assertion that such harm includes harm to CP Rail, the environment and public health. Conversely, requiring Cranbrook to comply with the amendments prior to a hearing and decision on the merits of its appeal, will result in relatively minimal harm, if any, to Cranbrook.

Considering the above, the Board finds that the balance of convenience weighs in favour of refusing a stay of the Assistant Manager’s decision.

DECISION

In all the circumstances, the stay is denied. Cranbrook is directed to submit an interim management plan for effluent storage, with schedule for implementing the plan, as contemplated by item #3 of the amendments. Cranbrook was originally required to have done this by April 23 and apparently has not complied with this order. The Board notes that the April 23 date expired during the course of the Board’s consideration of the stay application. Accordingly, the Board is prepared to extend the date for compliance with this item to May 31, 1999.

Toby Vigod, Chair

Environmental Appeal Board

May 10, 1999

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