Her Majesty the Queen - v. -, 2011 SKPC 79

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 079 Date: May 16, 2011 Information: 6190714 Location: Lloydminster, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rural Municipality of Britannia No. 502 Appearing: Inez Cardinal, Q.C. For the Crown Al Sholter For the Defence SENTENCING K. J. YOUNG , J [ 1 ] The Rural Municipality (R.M.) has pled guilty to two charges under The Environmental Management and Protection Act, 2002.

Count 5: At or near Greenstreet, in the Province of Saskatchewan, between September 1, 2009 and October 29, 2009, commence the construction, extension, alteration or operation of any sewage works without first obtaining a permit from the Minister to do so, and thereby commit an offence contrary to section 21(1) and section 74(2) of The Environmental Management and Protection Act, 2002;

Count 6: At or near Greenstreet, in the Province of Saskatchewan, between September 1, 2009 and October 29, 2009, being a permittee, fail to immediately report to the Minister any known or anticipated upset condition, bypass condition or events at or affecting the sewage works that could adversely affect the quality of effluent discharged to the environment contrary to section 17(2) of The Water Regulations, 2002 , and thereby commit an offence contrary to section 74(2) of The Environmental Management and Protection Act, 2002. [ 2 ] The Hamlet of Greenstreet has had sewage issues for many years.

From at least 2004, very little of the sewage generated by the 50 or so residences had arrived or stayed in the sewage lagoon. The R.M. council was not sure if the sewage was leaking out in the piping before it got to the lagoon or if the sewage was leaking out through the bottom of the lagoon. [ 3 ] Saskatchewan Environment was also aware that something was amiss with the Greenstreet sewage system. A 2006 study had concluded that Greenstreet needed a new lagoon. On January 31, 2008, Saskatchewan Environment extended the R.M.'s permit to operate this system from February 1, 2008 until January 1, 2013.

One of the conditions of the permit was that the R.M. submit an application to construct a sewage works by no later than March 1, 2008. It was a term that the R.M. not extend or alter the sewage works without a permit. It was also a term of the permit that the R.M., as soon as reasonably practicable, report any known or anticipated upset condition to the Ministry. [ 4 ] In June of 2007, the R.M. had been given "notice of violation" for not reporting an upset condition.

This, coupled with the requirement of the permit, would have made it abundantly clear to the R.M. that any upset was to be reported. [ 5 ] In April of 2009, the R.M. council passed a motion to spend $10,000.00 to fix the lagoon. By June of 2009, Rusway Construction had conducted a pressure test on the lines in town and out to the lagoons. Rusway determined that the leak was not in the sewer lines. At this point the R.M. knew they were in an upset condition, but did nothing to report the matter to Saskatchewan Environment.

A further unreported upset occurred on October 27, 2009, when Altman Construction discovered and repaired a leak in the sewer line at a lift station some 100 metres from Greenstreet Lake. [ 6 ] On September 23, 2009, the R.M., by a unanimous vote, voted to hire Altman Construction to repair the lagoon. No ceiling amount was set out in the motion. The motion did not put the project for tender. It was simply awarded to Altman Construction with no tender or price cap. [ 7 ] The R.M. has posted minutes of their meetings online for a number of years.

The minutes of the September 23, 2009 meeting were deleted from the website. The link reported “page removed”. It was not clear if this page had been deleted because the project had not been tendered or because there was no upper limit on what could be spent or because these minutes were a clear indication that the council was prepared to plough ahead with construction without the necessary permit from Saskatchewan Environment.

The R.M. administrator testified that the missing page was simply a computer error. [ 8 ] In the prior council meeting of September 9, 2009, the administrator had warned the council that they needed a permit before construction, and he even had an application drawn. Crown counsel advised that a permit of this nature would normally be issued within 15 days. Total project cost would be around $170,000.00, of which 15% would be engineering costs. [ 9 ] Construction began on September 11, 2009, and was completed by November 6, 2009.

The cost by that date was $217,000.00, with no approved plans, no permit, and not even an engineer in charge. The administrator began his testimony by suggesting that an engineer by the name of Tom Gehlen was in charge of this project. On cross-examination he admitted that Mr. Gehlen was an engineer that the R.M. had hired at a similar time for some road construction. The administrator had never seen Mr. Gehlen on site, but had heard that he stopped in every few days. Mr. Gehlen never invoiced the R.M. for this project. When Mr.

Gehlen was questioned by Environmental Protection Officers, he advised that he had not been contracted for this project, but was aware of the work being done. [ 10 ] The Crown is of the view that the R.M. proceeded without a permit in order to save engineering costs. Once charged, the

[ 10 ] The Crown is of the view that the R.M. proceeded without a permit in order to save engineering costs. Once charged, the R.M. has spent more money on an “after built” engineering assessment. There were never any tests done on the clay portion of the liner installed (the liner was the problem in the first place). The R.M. to date has not received a permit on the basis of their "after built" engineering study. Testing the liner now is difficult.

They may well have to tear the whole thing apart and start all over in order that Saskatchewan Environment and other area users can be assured that the liner has been engineered and constructed properly. [ 11 ] Crown counsel pointed out the pandemonium that would exist if every R.M., village, and town took it upon themselves to design and construct sewage systems that met their liking. The chaos that would ensue is obvious on a moment’s reflection. This was lost on each and every one of the Britannia council. These environmental laws reflect a valid societal concern.

Sadly it would appear that the Defendants’ council did not adhere to this principle. [ 12 ] With hundreds of R.M. councils throughout the province, it becomes a mathematical certainty that every so often you are going to get an entire council that does not understand its basic duties. A number of years ago a council in the Meadow Lake area saw fit to donate $10,000.00 to the tsunami victims in Indonesia. This was quickly corrected by the powers to be. Other R.M.'s have invested ratepayers’ money in foolish business ventures within their municipality.

Others have, through ignorance or carelessness, broken environmental laws. These are examples of municipalities who have had good intentions, but have misunderstood their roles or the laws involved. What was going on here in Britannia was something quite different. The fines in this case should not be used as a precedent for other R.M.'s who break environmental laws for more innocent reasons. [ 13 ] For constructing the lagoon without a permit, the Crown is recommending a fine of $50,000.00 and a surcharge of $20,000.00.

For the upset violation, the Crown is recommending a fine of $5,000.00 and a surcharge of $2,000.00. Mr. Sholter is recommending fines in the $10,000.00 to $15,000.00 range for the permit matter and $3,000.00 to $5,000.00 for the upset. [ 14 ] A number of cases were cited. The one most similar to this case is R. v. Hutterite Brethren Church of Whitelake , Action No. 100409580P1, September 15, 2010, Provincial Court of Alberta, Lethbridge. Here a Hutterite colony near Lethbridge had been operating a hog operation using an approved concrete lagoon.

After processing in the lagoon, the effluent was pumped into fields. To make additional money by acquiring carbon credits, through capturing methane, the colony built a secondary covered earth lagoon. Here the effluent would generate methane before being pumped into the fields. This secondary lagoon, constructed in 2009, had a two-foot compacted clay liner base. There was no evidence of any environmental damage. The Hutterites had not applied for a permit for this secondary lagoon. The Hutterites were of the view that this was an improvement, if anything, on an already approved process.

Stressing the need for preserving the integrity of the regulatory system, the Alberta Court imposed a fine of $71,500.00 by way of joint submission. [ 15 ] It is an aggravating factor, as noted by the Crown, that the R.M. was less than cooperative during the investigation. Councillors refused to be interviewed by the Ministry officials. It is a mitigating factor that they entered early guilty pleas. This is a flagrant and apparently intentional violation of the law.

It is regrettable that the consequences of the councillors’ actions will fall on the backs of the ratepayers of Britannia, especially when the infractions were avoidable. I agree with the Crown and impose the fines recommended by the Crown. [ 16 ] The R.M. will have until September 1, 2011, to pay the fines. As well, I am making an order under section 74(4)(

f) of the Act requiring that the R.M. provide a printed copy of this judgment to the ratepayers of the R.M. of Britannia No. 502 by October 15, 2011. Providing this length of time will hopefully allow the Municipality to include this with some other mail-out and thus spare the ratepayers the additional cost of postage. ____________________________________ K. J. Young, J