Appeal No. 97-051


Date of Hearing - April 23, 1998
Date of Report and Recommendations - May 22, 1998


IN THE MATTER OF Sections 84, 85, 86, 87, 91, 92 and 93 of the Environmental Protection and Enhancement Act (S.A. 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF an appeal filed by Mr. Richard Stelter, with respect to the Approval No. 1069-01-00 issued to GMB Property Rentals Ltd. by the Director of Air and Water Approvals Division, Alberta Environmental Protection.

Cite as: Stelter v. Director of Air and Water Approvals Division, Alberta Environmental Protection re: GMB Property Rentals Ltd.

HEARING BEFORE

Dr. Steve E. Hrudey, Panel Chair
Dr. John P. Ogilvie
Mr. Ron V. Peiluck

APPEARANCES

Appellant: Ms. Karin Buss, counsel, Ackroyd, Piasta, Roth & Day representing Mr. Richard Stelter

Other Parties: Ms. Maureen Harquail, counsel, Alberta Justice representing the Director of Air and Water Approvals Division, Alberta Environmental Protection; and Mr. Larry Williams, Alberta Environmental Protection

Mr. Andrew Hudson, counsel, Emery Jamieson representing Mr. Garry Bogart, GMB Property Rentals Ltd.

TABLE OF CONTENTS

BACKGROUND  1
THE MEDIATION MEETING 2
THE HEARING  2
THE ISSUE TO BE DECIDED 4
SUMMARY OF THE EVIDENCE  5
   1. The Appellant 5
   2. The Department 6
   3. GMB Property Rentals Ltd. - Mr. Garry Bogart 8
SUMMARY OF THE ARGUMENTS 9
   1. The Appellant 9
   2. The Department 10
   3. GMB Property Rentals Ltd. - Mr. Garry Bogart 11
CONSIDERATIONS OF THE BOARD  11
CONCLUSION 13
COSTS 14
RECOMMENDATIONS 14
ORDER  16


BACKGROUND

[1] As indicated in the Board's Stay Decision(1) of May 14, 1998, Mr. Richard Stelter, (the Appellant) filed a Notice of Appeal with the Environmental Appeal Board (the Board) on December 4, 1997, regarding Approval No. 1069-01-00 (the Approval) issued to GMB Property Rentals Ltd. by Mr. David Spink, (the Director) Air and Water Approvals Division, Alberta Environmental Protection on November 21, 1997. This Approval, effective until November 1, 2007, is for the operation of a Class I wastewater treatment plant (wastewater stabilization ponds) in the Edson area.

[2] The Board wrote to the Appellant on December 4, 1997, acknowledging receipt of the appeal and by copy of that letter requested all related correspondence, documents and materials from the Department of Environmental Protection (the Department). On that same date the Board wrote to Mr. Garry Bogart of GMB Property Rentals Ltd. (the Approval Holder) advising him that an appeal had been filed by Mr. Stelter and providing him with a copy of the appeal.

[3] All requested correspondence was received from the Department on December 17, 1997, and a copy was forwarded to the Appellant and the Approval Holder. In the Board's letter of December 19, 1997, addressed to Mr. Stelter, the Board requested the Appellant provide further information regarding preliminary matters relating to his appeal. The Board also requested in letters dated December 19, 1997, that the parties advise as to whether or not they wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation. Upon review of the comments received, the Board decided to hold a mediation meeting on February 9, 1998.

THE MEDIATION MEETING

[4] A mediation meeting was held on February 9, 1998, in Edson, Alberta. The facilitator from the Board was Dr. Anne Naeth.

[5] According to the Board's standard practice, the Board called the mediation in an attempt to mediate or to facilitate the resolution of the appeal or, failing that, to make arrangements for the oral hearing. The Board invited representatives from each party to participate.

[6] No resolution was reached at the mediation meeting, and it was decided by the parties that a hearing would be held on April 23, 1998.

[7] In the Board's notice of mediation and public hearing advertisement placed in the Edmonton Sun on January 27, 1998, it was noted that if any person, other than the parties wished to make representations before the Board, to advise the Board office by February 3, 1998.

[8] The Board received an intervenor request from Mr. Jim Toner on February 3, 1998. The Board offered the parties the opportunity to comment on the possible involvement of Mr. Toner and after careful consideration of those comments the Board decided to deny Mr. Toner's request.

THE HEARING

[9] On April 23, 1998, the hearing took place at the Board's office in Edmonton, Alberta. The following facts were largely agreed upon by the parties before the hearing and were elaborated in further detail during the hearing.

[10] GMB Property Rentals Ltd. owns and operates a mobile home park ("Park") east of Edson, Alberta. GMB purchased the park in February 1993.

[11] After purchasing the Park, GMB installed a second lagoon designed to store wastewater from the first lagoon for a period of time prior to release.

[12] On August 1, 1997, GMB applied for a new Approval from the Department for operation of its stabilization ponds including discharging effluent from the second lagoon into an unnamed creek which flowed through a natural bed and then through a trench dug by the former owners of the Appellant's land and ultimately to the McLeod River. The unnamed creek is an intermittent creek which flows during spring thaw and periods of rainfall.

[13] By letter dated November 4, 1997, the Appellant issued a statement of concern to the Department regarding the approval that GMB was seeking. Mr. Stelter raised concerns regarding the proposal of the Approval to allow discharge of treated sewage effluent from the GMB secondary lagoon to an unnamed creek which flowed onto his brother's property and then which drained, via a drainage channel across his land, to the McLeod River. Mr. Stelter's concerns related to:

  1. the negligible dilution which this discharge would receive in this intermittent water course,
  2. the possible health effects on his cattle from drinking this wastewater,
  3. the possible health risks which his cattle might ultimately pose to subsequent human consumers,
  4. the toxic effects of this discharge on fish who may inhabit the channel near the point of discharge with the McLeod River, and
  5. the expectation that the one time fall discharge approved would spill over onto Mr. Stelter's land because the creek itself would be frozen in November and that the only rationale for approving this form of discharge was to convenience GMB who had previously discharged their treated sewage effluent directly to the McLeod River via a temporary pipeline.

[14] The Department reviewed the concerns set out in the Appellant's letter of November 4, 1997, and granted the Approval on November 21, 1997, as Approval No. 1069-01-00. This approval allows GMB, from the second lagoon: "commencing January 1, 1998, a maximum once per year discharge between May 15 and July 15 in conjunction with spring runoff to an unnamed creek and ultimately into the McLeod River."

[15] The Approval also allowed GMB to make a one time discharge from the second lagoon through the unnamed creek to the McLeod River. On November 26 and 27, 1997, GMB discharged effluent into the McLeod River via the unnamed creek and the drainage channel across the Appellant's property.

[16] On December 4, 1997, the Environmental Appeal Board received an Appeal from Mr. Richard G. Stelter with respect to the Approval. Mr. Stelter objected to the provision of the Approval calling for discharge of the treated sewage effluent from GMB to the unnamed creek which ultimately passed into the drainage channel across his land. Mr. Stelter provided his statement of concern letter of November 11, 1997, as the grounds for his Appeal and he sought the relief of requiring that the effluent should be discharged to the McLeod River via piping, as was done in the past.

[17] At the conclusion of the hearing, the Appellant filed a request for a Stay which was granted on May 14, 1998. An application for costs to be applied against the Department was made by the Appellant and that Decision will be issued shortly.

THE ISSUE TO BE DECIDED

[18] Does the Approval which allows discharge of treated sewage effluent from GMB to an unnamed creek that ultimately flows to a drainage channel across the Appellant's property (before discharging to the McLeod River) serve the purposes of the Act?

SUMMARY OF THE EVIDENCE

1. The Appellant

[19] Mr. R. Stelter, the Appellant, was the only witness called on his behalf. He elaborated on each of the concerns he had expressed in his statement of concern to the Department by providing a more detailed description of the flow path(2) of the effluent discharge, particularly once it left the natural flow path of the unnamed creek before being picked up by a drainage channel across his property. This drainage channel flowed into a holding pond on his property before overflowing into another channel to the McLeod River. Mr. Stelter recounted a history of concerns with discharges from the trailer park, but he acknowledged that the current owner, Mr. Bogart, had invested in building a second cell to the wastewater lagoon to improve the quality of the effluent to be discharged.

[20] Mr. Stelter questioned the flow estimates provided by JMA Engineering in support to the GMB application for their approval, noting that the estimated peak flow of 5.66 cubic meters per second would greatly exceed anything he had ever seen in his experience. The effluent conditions were ultimately illustrated with the benefit of two videos, one(3) showing conditions during the approved, one time only discharge of November 25, 1997, and the other(4), showing conditions on April 16, 1998, one week before the hearing. The latter showed that as of mid-April, the spring runoff was essentially complete and the reaches of the drainage channel on his property showed negligible flow. Furthermore, Mr. Stelter also raised the concern that the discharge would make the water on his property unsafe to drink and that sustaining this Approval would impair the value of his land for future sale because of the negative character of having treated, but essentially undiluted sewage effluent flowing across his property. Under questioning by the Board, Mr. Stelter admitted that perhaps drinking untreated water directly from the unnamed creek or drainage channel might not be safe for human consumption given the influence of pasture run-off from cattle wastes.

[21] Finally, Mr. Stelter raised the question of why GMB could not discharge directly to the McLeod River as they had done previously. He entered two quotations(5) which showed costs for renting the required length of pipe in the order of $5,000 for one week or the outright purchase of the pipe for between $16,380 and $20,000.

2. The Department

[22] The Director's case was represented by only one witness, Mr. Larry Williams the Regional Engineer responsible for the Region in which the GMB facility is located. Mr. Williams described the physical characteristics of the wastewater system, how it functioned and how it had been improved by the addition of the second lagoon cell which was built by the current owner of the Trailer Park, GMB. He described how the effluent discharged in November 1997 was of excellent quality, better than municipal effluent treatment requirements because of its long residence time in the second cell. Mr. Williams indicated that the Department had considered the Appellant's concerns with health effects upon livestock and could find no substantive basis for those concerns based on the scientific literature or experience elsewhere in the province.

[23] Under cross examination by counsel for the Appellant, Mr. Williams explained that there were no specific quality requirements imposed upon the treated sewage effluent but that the Approval was a technology-based approval whereby the operating requirements imposed for the specified technology would ensure satisfactory levels of treatment.

[24] Mr. Williams also acknowledged concerns about possible toxic effects on fish in the lower reaches of the flow path near the confluence with the McLeod River. These concerns were expressed by Mr. Don Hildebrandt, a fisheries technician with the Department in two memos(6) one dated November 7 and one dated November 14, 1997. The first called for the treated effluent to meet Alberta Ambient Surface Water Quality objectives prior to discharge and the second backed off this request and asked for the effluent to meet these quality objectives after dilution with the background flow in the unnamed creek. Mr. Hildebrandt was not concerned with fisheries impacts for the once only November 1997 discharge because of the unnamed creek being frozen to the bottom at that time. However, it is evident from the second memo that Mr. Hildebrandt was relying on the high flow estimates for spring runoff provided by JMA Engineering in support of the GMB application for the Approval to reassure him that a condition for discharge during spring runoff would provide ample dilution of the treated sewage effluent flow and thereby preclude any likelihood of harm to fish. On the basis of flow records for the McLeod River, Mr. Hildebrandt apparently deduced that limiting allowable discharge to a period from May 15 to July 15 would catch that spring runoff and corresponding dilution. That was the condition which was ultimately adopted for the Approval.

[25] Mr. Williams was asked by the Board whether situations like this where treated sewage effluent was transported to a year-round water course via an intermittent stream or drainage ditch were common in the province. Mr. Williams indicated that such cases were common. When asked if he could recall any example where this practice occurred via a drainage channel across another private landowner's property he indicated that he was not aware of any such examples.

[26] Mr. Williams was asked by the Board whether direct discharge of the treated effluent to the McLeod River via a pipeline served to protect the environment as well as the provisions of the Approval and he acknowledged that a direct piped discharge would protect the environment as well.

3. GMB Property Rentals Ltd. - Mr. Garry Bogart

[27] The Approval Holder, GMB, called only one witness, the owner, Mr. Garry Bogart. Mr. Bogart recounted how he acquired the Trailer Park and how he responded to the advice that he should upgrade the wastewater system by building a second cell. Mr. Bogart indicated that he experienced some difficulties with unauthorized discharges because of conditions beyond his control, but he maintained that he had acted responsibly in managing this system. Furthermore, he recounted his attempts to satisfy Mr. Stelter and his brother about the quality of the wastewater effluent from his improved system.

[28] Mr. Bogart indicated that in November 1995 he had undertaken to discharge treated effluent directly to the McLeod River by means of a temporary pipeline using rented pipe. He described this as a major undertaking and one that he could no longer duplicate because the supplier he had dealt with in 1995 was no longer interested in renting pipe for this purpose. Under cross examination, Mr. Bogart indicated that he had not gotten any new estimates for temporary piping because of the disinterest on the part of the previous supplier he had used in 1995. He did acknowledge a reference to a cost of $500 per day (total of $2,000) for the 1995 pipe rental which was contained in an investigation diary of the Department.(7)

[29] Mr. Bogart attributed the suggestion that he need not continue to pump directly to the McLeod River to a Mr. George Joseph of Water Resources with the Department, who allegedly told Mr. Bogart that there was no reason for him to go to that trouble because he could get approval to discharge to the McLeod River via the unnamed creek.

SUMMARY OF THE ARGUMENTS

1. The Appellant

[30] Ms. Buss, counsel for the Appellant, notes that the Director's witness acknowledged that the direct pipeline to the McLeod River had been effective for meeting the purposes of the Act. The discharge which was contained in the Approval leads to the discharge of an effluent to the unnamed creek and thereafter onto the Appellant's land via the drainage channel which at the approved time of discharge will have little or no flow. The discharge in November 1997, despite being held for almost 2 years did not meet the Alberta Surface Water Quality Guidelines, but effluent quality can vary and there are no requirements on the effluent quality. The Approval makes no quantitative requirement for a minimum flow in the unnamed creek. The Approval was issued with reliance upon a report which made spring runoff flow estimates which were not supported by the evidence.

[31] Mr. Hildebrandt from the Department had expressed concerns about possible toxic effects on fish in the lower reaches of the creek before it enters the McLeod River. Yet his subsequent agreement with the Approval conditions seemed to be predicated on the unfounded spring runoff flow calculations whereas the evidence clearly showed there would be little or no flow in the unnamed creek after the spring runoff in April. Yet to discharge earlier, when the creek was still iced over, could lead to flooding conditions as occurred with the discharge in November 1997. To allow any flooding of the effluent onto the Appellant's land, according to the Appellant, would constitute trespass. In summary, the Appellant questioned why he should give up his rights and experience potential loss of property value only to suit the convenience of the Approval Holder.

[32] Ms. Buss argued that the Director has discretion as to whether or not he issues an approval. Section 65(1) of the Act provides that "The Director may issue or refuse to issue an approval..." (emphasis added). Citing this section, she noted that the Director should exercise that discretion to ensure that issuing an approval does not violate other acts or take away the property rights of other people. She cites the Saskatchewan Court of Appeal(8) "It is clear that this legislation ... was permissive as distinct from imperative or mandatory: ... and it has long been held that, where the legislature has conferred authority by legislation which is permissive in its terms, it does not prejudice the common law rights of others."

[33] Ms. Buss also argues that the riparian rights of the Appellant have been damaged by the discharge from the treatment lagoon. In support of her argument she cites Stewart, J.(9) "The municipality has the right to enact by-laws for the construction, payment and operation of and for sewers and sewage-disposal plants, subject to fulfilling the conditions precedent contained in the Act, but I have not been directed to any statutory authority which would by necessary implication permit the present defendant to interfere with the plaintiff's riparian rights."

2. The Department

[34] The Director does not believe the Alberta Surface Water Quality Guidelines apply to an intermittent creek. Furthermore, the Approval was deemed reasonable because it produced effluent of excellent quality. The Approval called for a technology-based standard rather than relying on specifying effluent quality.

[35] The Approval was argued to be limited to specifying the treatment conditions and that the matters objected to by the Appellant, i.e. the discharge across his land, is properly a matter under the Water Resources Act which makes it outside the jurisdiction of the Board.

3. GMB Property Rentals Ltd. - Mr. Garry Bogart

[36] The Appellant raised the question of land value but did not bring any direct evidence of an impact. (Mr. Bogart stated that having raised the issue, the burden of proof is upon the Appellant himself.) The effluent was of good quality and the flooding issue could be set aside because that only happened in the once only discharge in November 1997. So in summary, the Appellant provided no evidence of any harm -- at least according to Mr. Bogart.

CONSIDERATIONS OF THE BOARD

[37] The Board did not find the evidence brought forth by the Appellant concerning health effects on his cattle arising from drinking treated sewage effluent to be compelling or specific enough to the current circumstances to be acceptable as a direct adverse effect of this Approval upon the Appellant.

[38] Likewise, the Board did not find the concern about possible health risks to subsequent human consumers of cattle (which had consumed water affected by this discharge) to be anything more than speculation.

[39] The Board notes that Mr. Stelter's concerns about toxic effects upon fish in the lower reaches of the flow path for this discharge were largely supported by Mr. Hildebrandt, the fisheries technician for the Department. Mr. Hildebrandt's concerns were apparently to be alleviated by his understanding that discharge during an allowable window from May 15 to July 15 would capture spring runoff, thereby providing sufficient dilution of the treated effluent to preclude any toxic effects on fish. The evidence apparent in the April 16, 1998 video(10) which showed that spring runoff in the unnamed creek for 1998 was already complete in April, clearly undermines the assumptions of Mr. Hildebrandt. No contrary evidence of a later spring runoff was tendered by other parties.

[40] The Board notes the Appellant's argument regarding the effect of the discharge on his common law and riparian rights. It also notes the Director's argument that these matters are beyond its authority. While this may be true with respect to riparian rights, the Board believes it has the responsibility to ensure that the Director, in making his environmental quality decisions, does not contravene rights of others that may be protected by the common law.

[41] The Board accepts Mr. Stelter's concerns about effects on the value of his property in a future sale being adversely affected by the negative connotations of having essentially undiluted, albeit well-treated, sewage effluent discharge across his land once per year. This is simply a common sense argument that this feature would likely discourage some buyers from being interested in his property, regardless of the technical arguments which might be mounted about the high quality of the treatment provided by the two cell lagoon system. Any feature which may be reasonably anticipated to cause some buyers to reject the property would have the effect of reducing the size of the buyers' market for the property with attendant negative consequences for sale price. This is a case where perception, ill-founded or not, will become reality in terms of the negative consequences to the Appellant.

[42] The Board did not find the arguments presented by Mr. Bogart concerning the difficulty of continuing with a direct discharge to McLeod River to be convincing. Apparently, based in part upon the encouragement given by Mr. Joseph of the Water Resources section of the Department, the more "convenient" and less expensive option of discharging to the unnamed creek was pursued with Approval application.

CONCLUSION

[43] The Approval has required the construction and operation of a wastewater system for GMB which appears to be functioning well in relation to facilities of this type. However, in order to ensure the requirements of section 2(a)(11) of the Act are met, additional factors need to be considered. The decision to approve discharge of the treated effluent to the unnamed creek and ultimately into the McLeod River, once per year "between May 15 and July 15, in conjunction with spring runoff"(12) is flawed because, on the evidence, this is not achievable in 1998. Discharge between May 15 and July 15, 1998, will not be in conjunction with spring runoff. There is an apparent discrepancy between the dilution which may be available to this discharge during a reasonable spring discharge period and that which was required by the fisheries concerns. Requiring an earlier discharge to try to capture the spring runoff in the unnamed creek would likely lead to some flooding because of ice remaining in the creek. Likewise, the quality of the discharge from the second cell of the lagoon would not be as high as it would be by allowing a substantial period of ice-free time prior to discharge. Finally, the position of Director's counsel that the Alberta Surface Water Quality Guidelines do not apply to an intermittent creek seems to set up an anomaly for the Appellant. On one hand, Director's counsel argues that there is an unfettered right to approve an effluent discharge via this creek because it is a waterbody. Yet, the fact that it has little or no flow, making it intermittent and unable to offer any dilution of the effluent discharge is used to justify that the quality need not meet the Alberta Surface Water Quality Guidelines.

[44] The obligations on the Director to protect the environment under the Act are met as well, if not better, with a requirement to discharge directly to the McLeod River, as was practiced in this case in 1995. This consideration of water quality is clearly an issue under the Environmental Protection and Enhancement Act and is not a matter for the Water Resources Act. The decision to place the effluent discharge into the unnamed creek and thereby into the drainage channel on the Appellant's property appears to favour the economic interests of the Approval Holder over environmental and property interests of the Appellant. In a case where there is no benefit to be gained for the environment by this approach, and the possibility, raised by the Department's own staff, of an adverse environmental effect renders the decision to allow the discharge to the unnamed creek unreasonable.

COSTS

[45] The Board's Decision on costs will follow in due course.

RECOMMENDATIONS

[46] The Board recommends that the appeal be allowed to the extent that the Approval be varied to require, by amendment, a means of wastewater discharge to the McLeod River which does not infringe the valid interests of the Appellant and which avoids the fisheries concerns which were raised by Departmental staff.

[47] With respect to section 92(2) and 93 of the Environmental Protection and Enhancement Act, the Board recommends that copies of this Report and Recommendations be sent to the following parties:

 

Dated May 22, 1998, at Edmonton, Alberta.

Dr. Steve E. Hrudey, Panel Chair
Dr. John P. Ogilvie
Mr. Ron V. Peiluck

ORDER


I, Ty Lund, Minister of Environmental Protection:

Agree with the Recommendations of the Environmental Appeal Board and order that they be implemented.


Dated at Edmonton this 28 day of May 1998.


Honourable Ty Lund
Minister of Environmental Protection


Footnotes

1. Stelter v. Director of Air and Water Approvals Division, Alberta Environmental Protection Stay decision re: GMB Property Rentals Ltd. (May 14, 1998), No. 97-051.

2. Exhibit 3: Overhead of aerial photo of Stelter Farms.

3. Exhibit 12: Video - November 25, 1997, and November 27, 1997.

4. Exhibit 13: Video - November 27, 1997, and April 16, 1998 - unnamed creek.

5. Exhibit 11: Price quotations from CH Plastics Ltd. dated April 21, 1998, and CRP Products and Manufacturing Ltd. dated April 21, 1998.

6. Exhibit 16: Memos dated November 7 and November 14, 1997, to Mr. Steve Johnson, Regional Engineer, Northern Eastern Slopes, from Mr. Don Hildebrant, Fisheries Management, Edson.

7. Exhibit 18: Alberta Environmental Protection, Pollution Control Division, Investigation Diary dated December 5, 1995..

8. Temple and Denton v. City of Melville, [1979], 6 W.W.R., 257 - 266, (Sask. C.A.).

9. Stevens v. Village of Richmond Hill, [1955], 4 D.L.R., 572 - 579, (Ontario High Court).

10.Exhibit 13, supra note 4.

11. Section 2(a) of the Act states:

(2) The purpose of this Act is to support and promote the protection, enhancement and wise use of the environment while recognizing the following:

(a) the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society;

. . .

12. Clause 5.1.1 (c) of Approval No. 1069-01-00.

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