Decision Date: February 14, 2018

Panel: Maureen Baird, Q.C.

Keywords: Environmental Management Act – s. 83; Agricultural Waste Control Regulation; pollution abatement order; drinking water; well; contamination

Steve and Amanda Hallett appealed a pollution abatement order (the “Order”) that was issued to them by the Director, Environmental Management Act(the “Director”), Ministry of Environment. The Director issued the Order after finding that there were reasonable and probable grounds to believe that manure and wood waste on the Halletts’ property was escaping and causing pollution on a neighbouring property owned by the Third Party, Owen Fewer.

In September 2016, the Halletts brought three horses onto their property. Their neighbour, Mr. Fewer, relied on a shallow well for his drinking water. His well was downhill from, and within 5 metres of, the area where the Halletts kept the horses. In October or November 2016, Mr. Fewer noticed a change in the quality of the water from his well. In late November and early December 2016, Mr. Fewer had his tap water tested, which revealed the presence of E. coli bacteria, fecal coliform, and substances associated with wood waste. Northern Health Authority advised him that his well water was unsafe for drinking or household use.

In December 2016, Mr. Fewer filed a complaint with the Ministry, which then sent an advisory non-compliance letter to the Halletts. In January 2017, the Ministry inspected the site. Ministry staff observed wood waste piled in the horse paddock, manure in the paddock and piled beside the driveway, permeable soil in the paddock area, and surface water runoff from the paddock and barn areas pooling in a grate that drained into a pipe that discharged onto Mr. Fewer’s property below his well. Dark brown water was draining from the pipe. In February 2017, the Ministry issued an inspection report which found that the Halletts were not in compliance with several sections of the Agricultural Waste Control Regulation.

On March 6, 2017, the Director issued the Order pursuant to section 83 of the Environmental Management Act (the “Act”). The Order required the Halletts to comply with several requirements by specific dates, including immediately preventing waste from escaping from their property. By April 7, 2017, the Halletts were required to retain a qualified professional to develop and submit a plan, for the Director’s approval, to cease pollution from being generated. The Halletts were also required to implement the plan once approved.

The Halletts appealed the Order. They argued that the Order should be rescinded, but offered to take certain steps regarding the storage of manure, use of wood waste, and diversion of some surface water on their property.

Meanwhile, Northern Health Authority conducted three site investigations between late November 2016 and early March 2017. In April 2017, Northern Health Authority issued a report concluding that activities on the Halletts’ property were likely causing contamination of Mr. Fewer’s well water, and creating a health hazard.

Also, in August 2017, the Ministry conducted a second inspection of the Halletts’ property, and found several contraventions of the Agricultural Waste Control Regulation.

The Board conducted an oral hearing of the appeal. The Board then considered whether the Order should be reversed based on the parties’ evidence and the requirements of section 83 of the Act. There was uncontested evidence that Mr. Fewer had experienced no problems with the quality of water from his well before October 2016, and after October 2016 his well water became contaminated with E. coli and fecal coliform such that it was unusable for drinking or washing, and contained high levels of lignins and tannins associated with wood waste. The Director and Northern Health Authority provided evidence from site inspections and water tests which supported the conclusion that the Halletts’ property was the likely source of contamination. The Halletts provided no evidence to contradict that evidence. Consequently, the Board concluded that the Order should be confirmed, subject to an extension of the deadline for the Halletts to submit a report by a qualified professional to the Director for approval.

Consequently, the appeal was dismissed.