Decision Date: June 1, 2017

Panel: Robert Wickett, Q.C., Lorne Borgal, Robert Holtby

Keywords: Environmental Management Act – ss. 1(1) – definition of “pollution”; 83; pollution abatement order; groundwater contamination; aquifer; nitrate; drinking water

George E. Curtis and Kevin F. Curtis appealed a pollution abatement order (the “Order”) issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”). The Director issued the Order to the Appellants under section 83 of the Environmental Management Act (the “Act”), after finding that there were reasonable grounds to believe that the Appellants’ agricultural operations were causing pollution through the introduction of nitrates into an aquifer used for drinking water.

The Appellants own farm land near Armstrong, BC. Their land sits above an unconfined aquifer (the “Aquifer”). The Appellants operate a cattle feed lot (the “Curtis Farm”) located approximately 450 metres southwest of a lake, and cultivate crops on land adjacent to the east side of the lake. The Appellants had operated the feed lot on their land for 42 years, and had been depositing manure mixed with wood shavings onto their land for 25 years. Other farms and homes are located over, or immediately adjacent to, the Aquifer.

There are numerous drinking water wells in the Aquifer, and the Steele Springs Water District (the “Water District”) provides drinking water from the Aquifer to approximately 150 residents.

Situated to the northeast of the Curtis Farm is a dairy farm owned by Jansen & Sons (the “Jansen Dairy”). East of the Jansen Dairy is an area described as the “Field of Concern.” The intake for the Water District (the “Intake”) is situated approximately 150 metres south of the Field of Concern.

Nitrates are naturally present in the environment and can enter the soil in many ways, one of which is by the deposition of cattle manure. Excess nitrates in soil can leach into groundwater, migrate through the soil, and create elevated nitrate levels in an aquifer.

Beginning in 2014, the nitrate level in some wells around the Intake, and in water drawn from the Intake, exceeded the level considered safe in drinking water. In response, the Ministry investigated. At the Curtis Farm, Ministry staff observed large, uncovered piles of manure, some of which had sawdust or wood shavings on top. No containment system for surface water runoff was visible.

In May 2016, the Director issued the Order to the Appellants. The Director also issued pollution abatement orders to the other agricultural operations situated above, and adjacent to, the Aquifer. Among other things, the Order required the Appellants to prepare and implement a monitoring plan and environmental impact assessment for nitrates in the soil and groundwater on their lands.

The Appellants appealed the Order on several grounds. The Appellants submitted that they were not responsible for nitrate contamination in the Aquifer. They asserted that there was no pollution in the western portion of the Aquifer where their farm is located. The also argued that the groundwater flow was in the opposite (southwesterly) direction from the Intake relative to their lands. The Appellants requested that the Board reverse the Order.

The Director argued that the Appellants were not the sole source of contamination, but were contributing to the contamination of the Aquifer.

First, the Board considered the legal and evidentiary burden that the Director had to satisfy before having the jurisdiction to issue a pollution abatement order, particularly to a person who is alleged to be one of several contributors to pollution. The Board found that section 83 of the Act obliged the Director to obtain sufficient evidence to give her reasonable grounds to conclude that a substance (manure/shavings mixture) deposited by the Appellants into the environment was causing “pollution”, which is defined in the Act as “the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment”. Specifically, there had to be plausible evidence, considered objectively and on a balance of probabilities, that the manure/wood shavings were leaching nitrates into the Aquifer and substantially altering or impairing the usefulness of the environment.

Next, the Board considered the merits of the Order based on the evidence. Given that nitrates exist naturally in soil and water at certain levels, the Board found that the Order could only be justified if there was evidence that the nitrates in the manure/wood shavings mix exceeded the uptake of nitrates by plants and other natural processes, and that the excess nitrates could have leached into the Aquifer. Water testing records showed two periods of time since 1987 when nitrate levels increased to levels of concern. The evidence showed a pattern of nitrate levels increasing from low concentrations to high concentrations, then decreasing to low concentrations before increasing again to high concentrations, over a period of 27 years. However, for 25 years, the Appellants had deposited a relatively consistent amount of manure/shavings onto the Curtis Farm. There was no evidence that nitrates from the Curtis Farm reached the Aquifer through water runoff. There was also no evidence that the deposit of manure/wood shavings exceeded the uptake of nitrates by crops and other nitrogen consumption factors, such that nitrates were available to leach into the Aquifer. The Board concluded that some other source was causing the increase in nitrate levels in the water at the Intake and nearby wells.

In conclusion, the Board found that there was no evidence on which the Director or the Board could be satisfied on reasonable grounds that nitrates from the Curtis Farm had reached the Aquifer, such that they substantially altered or impaired the usefulness of the environment. Consequently, the Order was reversed, and the appeal was allowed.