R. v. Regional District of North Okanagan Date:, 2013 BCPC 271

Citation: R. v. Regional District of North Okanagan Date: 20130925 2013 BCPC 0271 File No: 46630-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. REGIONAL DISTRICT OF NORTH OKANAGAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MCKIMM Counsel for the Crown: J. Gold Appearing for the Accused: N. Bruneau Place of Hearing: Vernon , B.C. Date of Hearing: January 28, 2013 Date of Judgment: September 25, 2013

[ 1 ] The Regional District of North Okanagan, (“the District”), is charged with four offences under the Water Act , RSBC 1996, ch. 483 sections 78(2) and 79(1) (c), and the Drinking Water Protection Act, SBC 2001, ch. 9 sections 23(1) and 23(6) , thereby offending section 45(1) . The offences arise as a result of an incident which occurred on January 13, 2010. On that date, a massive quantity of raw effluent entered into the drinking water system operated by the District.

The Crown says that these are offences of strict liability and, as a result, the District is liable to be convicted on proof that they provided non-potable water to its customers. The District agrees that this is a matter of strict liability, however they submit that they operated the water works using due diligence or reasonable care in the circumstances and therefore are not criminally liable for the breaches of the sections. [ 2 ] The District owned the water supply and distribution assets of the greater Vernon water service, including the Antwerp Springs facility hereinafter called “Antwerp”.

The District of Coldstream (hereinafter “Coldstream”) operated the Antwerp Springs facility on behalf of the District. At the time of this offence, the District provided water to its customers from a number of different sources. Each of these sources had their own inherent risks and weaknesses in terms of being able to provide the quality of water the Acts required. [ 3 ] Antwerp is an artesian well site. On the site there are at least three different wells. The first is the deep well, the second is the shallow well, and the third is a large culvert well hereafter referred to as the discontinued well.

Water enters into these different well systems by travelling down the nearby slopes through porous material under the ground. This porous material can consist of sand or gravel and works as a filter removing impurities from the water source. [ 4 ] When working correctly, water that is drawn directly from a well has travelled through a sufficient amount of the porous material to completely filter out impurities.

The wells will produce a reliable source of clean water as long as the water which is drawn from it has travelled an adequate distance through the porous material and there is no other route by which impure water can access directly into the well.

If an operator becomes aware that an artesian well can be contaminated by impure water travelling directly to the wellhead, rather than through the aquifer, that operator must be particularly careful in their operation of the waterworks. [ 5 ] When providing water from Antwerp the District relied on a combination of the deep well, the shallow well and a chlorine analyzer system to satisfy themselves that the water at all time met the requirements of the Acts . The shallow well and the deep well each had their own unique challenges.

The shallow well suffered from bacteria contamination seasonally and the deep well suffered from excessive quantities of magnesium in the water. When there was evidence of bacteria in the shallow well the District would switch to the deep well. When the bacterial counts in the shallow well lowered sufficiently the District switched back to the shallow well and avoided the difficulties and inconveniences posed by the magnesium in the deep well.

The District was always aware that the shallow well posed a risk of contamination from surface water accessing the shallow well without an adequate transit time through the aquifer. Their answer to that risk was the use of chlorine analyzer. [ 6 ] Any water emitting from Antwerp was chlorinated at source. The chlorine is delivered into the water and kills the pathogens in the water leaving the water potable. As the chlorine consumes the pathogens it is itself consumed and thereby removed from the water.

To ensure that all the pathogens are destroyed the water is tested by a chlorine analyzer after it leaves the well and prior to delivery to the first user in the delivery system to ensure that there is a residual amount of chlorine left. Obviously if there is a small residual amount of chlorine left then the chlorine has killed all of the bacteria. On the other hand, if there is not a residual amount of chlorine then bacteria may still be in the water, it not having been completely consumed by the chlorine.

If the chlorine analyzer fails to detect chlorine it sends an alarm to the operators and ultimately shuts off the pump. In this sense, there is a backup which might be described as a “failsafe” as long as the chlorine analyzer is known to function properly. Considering all of the evidence is apparent that in January 2013 the chlorine analyzer did not work properly and that fact was known or should have been known to the District. [ 7 ] Antwerp produced some of the highest quality water in the North Okanagan region. This well has consistently produced high quality water without difficulties for more than a decade.

On the other hand, like all water sources, the Antwerp well was liable to certain risks, of which the operators were aware. The District was aware that the deep well suffered from heavy concentrations of magnesium. While magnesium was not originally considered a health concern, such as E. coli or fecal coliform, it is now understood as raising serious health concerns, particularly at the levels noticed in the deep well.

On the other hand, the shallow well did not suffer from magnesium contamination. [ 8 ] The customers who use the water from the deep well complained regularly because the magnesium in the water discolored laundry and was generally unpleasant. Furthermore, the magnesium when mixed with chlorine creates crystals and deposits in the water lines that would disgorge at times of high usage and plug filters to create brownish water.

It was further known to the District that the crystals produced by the magnesium caused the chlorine analyzer to plug and fail. [ 9 ] The most significant risk posed by the use if the shallow well, on the other hand, is the possibility that water contaminated by surface material can access the well head without sufficient transit time through the filtering aquifer. Conceptually, an ideal well would be sealed off against any other water sources other than water which has travelled directly through the aquifer for some distance.

An aquifer which is liable to being contaminated by surface water poses unique risks in terms of the purity of the water. [ 10 ] At Antwerp there is a rudimentary system designed for draining surface water away from the well site so that it could not contaminate the wells. This drainage system is comprised of a series of pipes and two manholes that take the surface water away from the well site and delivered it into a nearby creek.

It is important that this groundwater be collected and removed from the well site to ensure that it does not have direct access into the aquifer without the appropriate transit time. [ 11 ] The evidence shows that over the course of the last decade, the District was made aware of a concern that there was a “cross connection” between the drainage system and the well head. These concerns were originally brought to the District's attention in March 2006 a report prepared by Golder Associates.

In that report Golder Associates, confirms for the District that the Antwerp Springs shallow well has the potential for surface water contamination. They also reported that there was a risk, as yet undetermined, that there was a cross connection between the drainage system around the well site and the shallow well. The report finds that:

Antwerp Springs Well 1 is semi-confined to confined by a “clayey silt with minor sand" layer, the lateral extents of the confining layer or the protective value of this layer is uncertain. In addition, both wells have been identified as being potentially GUDI (ground under direct influence) due to their shallow nature, the proximity of Antwerp Springs Well 1 to a surface water body and the historical presence of Total Coliform.

Golder Report 2006, Exhibit 6, tab 1, page iii [ 12 ] They recommend that, “Consideration be given to using only the wells within the deep confined aquifer (Antwerp Springs Well 2) for portable water and using the shallow wells (Antwerp Springs Well1) solely for irrigation purposes." Golder Report 2006, Exhibit 6, tab1, page 26 [ 13 ] In a follow-up report dated May 13, 2008 Golder Associates reiterated their concerns with respect to the Antwerp well site as follows; The large diameter well was decommissioned after (Antwerp Springs) Well 1 was brought online and provides continuous artesian flow to the drainage system, except when (Antwerp Springs) well 1 is pumping at rates greater than 500 US [gallons per minute].

This drainage system, as built, could provide a direct conduit for contaminants to enter the shallow aquifer as there are no checks values [ sic ] between the drainage system manholes and the Large Diameter Well ( the decommissioned well). This could permit reverse flow back into the shallow aquifer when [Antwerp Springs] Well 1 is pumped at rates greater than 500 US gallons per minute, which could impact the groundwater quality in the shallow aquifer. Also, the drainage system is not flood-proofed; therefore, floodwaters from Coldstream Creek could potentially breach the system.

The drainage system could also act as a conduit for spilled materials from Highway 6 to the shallow aquifer. Golder Report 2008, Exhibit 6, tab 2, page 13 [ 14 ] Ultimately Golder Associates recommended that the District consider using the shallow wells only for irrigation and only the deep well for potable water. Golder also pointed out that treatment would likely be necessary on the deep well water to deal with the high magnesium contents.

They further write, However, if [the District] determines that the shallow wells are required as a drinking water source, the following outlines work that would be required to ensure the safety of these shallow wells as a drinking water source…

(3) Refurbished the drainage system on the Antwerp Springs lot by routing ditch drainage and general surface drainage away from the well site and Decommission the Large Diameter Well or at a minimum install a backflow prevention valve on the drainage system to the Large Diameter Well. Golder Report 2008, Exhibit 6, tab 2, page 32 [ 15 ] These concerns with respect to a cross connection and in any event, the potential for surface water contamination were brought to the District's attention as early as 1999.

At that time, an inspection of one of the drainage manholes led to the observation that the water in the manhole would reduce when the pumps turned on, which meant that the pump was effectively drawing water from the drainage system, as well as water for the shallow well. [ 16 ] In June 2007 Reenie Clark attended on behalf of Interior Health, the provincial agency responsible for water quality, and inspected Antwerp. In a report from Interior Health to the District, Interior Health wrote, There was another well at this site [the discontinued well] that is no longer in use. The well is a flowing artesian well.

The discharge from the artesian well, discharge from the pump control valve/surge relief and storm sewer all tie in to a manhole which then flows to the Creek. When Antwerp well, number one is turned on, the flow from the artesian well stops, indicating pumping from the Antwerp well interferes with the artesian flow. The manhole [and three pipes into it] creates two cross connections: - Antwerp Well #1 draws on the artesian well. The discharge pipe from the artesian well can be submerged in the manhole whenever the storm sewer is flowing or the creek is high.

The non-portable water from the manhole may flow to either well mixing with potable water. Exhibit 6, Tab 22, page 2

[ 17 ] And further on under “requirements” Ms. Clark writes: “the cross connection at Antwerp wells should be removed (both from the pump control valve/surge relief and the flowing artesian well to the storm manhole)." This work was to be completed by year-end in 2007. [ 18 ] In spite of having been advised that there was a risk of contaminants entering directly into the well system the District continued to resist dealing with the issue. The District was of the view that the potential risk posed by the cross connection could not be resolved by the installation of a backflow prevention valve.

I am satisfied on the evidence that that is correct; a black flow prevention valve would have stopped water from Coldstream Creek entering into the well system. The District also took the position that Antwerp generally produced high quality water or certainly water that was as good as any other water being provided to its customers.

In spite of this, the Master Water Plan developed in 2002 envisioned only using Antwerp Springs as a backup water system and primarily using the water available from that site for irrigation purposes. [ 19 ] In the Master Water Plan dated April 2002 the District concluded: …the (Antwerp Springs) groundwater wells have supplied the Lavington water system for a number of years. This water, however, is very hard (325 mg/L) and has necessitated the use of home water softeners.

While the continued use of this water source was contemplated in the early stages of the plan, the feedback from water users was that the hardness may the long-term use of the water unacceptable, particularly if a high quality water was available from the regional treatment plant. Evaluations carried out comparing hardness removal from the Antwerp Springs supply versus supply from the Middleton Mountain water treatment plant concluded that the latter was more cost-effective.

The decision was thus made to discontinue the Antwerp Springs supplies a domestic water source, after the regional water treatment plant was online. Exhibit 15, page 7-5 [ 20 ] They further confirmed the groundwater from the area would be used only for irrigation purposes.

One can not fail to note that the Master Water Plan appears to deals only with the issues surrounding the use of the deep well and omits any reference to much riskier shallow well and its potential for contamination. [ 21 ] It was the District's view, which view was ultimately supported by Interior Health, that the risk posed by the Antwerp Springs shallow well could be met entirely by continued monitoring and the use of chlorination combined with a chlorine analyzer. What the District failed to consider was the option of simply removing the Antwerp Springs well altogether.

Instead of this, the District continued to put the citizens at risk in the event that contaminants entered the water system and the chlorine analyzer failed. [ 22 ] An employee of the well operator, Mr. Blundell, testified that weeks prior to the events on January 13, 2010 the chlorine analyzer had in fact failed. Many of the witnesses testified that the chlorine analyzer was relatively unreliable in that it required constant attention because its sensors would plug up as a result of magnesium salts in the water. In this sense, the “failsafe" answer to the potential for contamination does not meet scrutiny.

On the day in question the analyzer failed. The Events of January 2010 [ 23 ] The events that give rise to the offences captured in the information are not seriously contested. Indeed, the majority of the essential facts are the subject of very sensible admissions. In early January 2010 a local farmer began to spread large quantities of cow effluent on top of the snowpack. The fields on which the farmer was spreading the manure were immediately uphill from the site of the well operated by the District.

Although the record is not entirely clear, it is evident that farming and cattle ranching are major industries in this area and the slope uphill from the site of the well has been used for those purposes for decades. [ 24 ] Immediately prior to January 13, 2010 the weather warmed up significantly and it began to rain. This warm weather and rain caused a sudden melt of the snow on the farmer’s fields. This thaw resulted in a runoff of the melted snow and substantial quantities of effluent, which ran downhill from the farmers fields toward a property adjacent to the well head.

Rather than draining from those adjacent fields into Coldstream Creek and away from the well, the effluent drained into the well property and into the aquifer. This water was then pumped into the distribution system and delivered to the residents in the area. [ 25 ] When residents turned on their taps what poured forth was a thick concoction, which was described by one witness as the consistency of a pail of water with a cow patty dissolved in it. The water smelled of manure and a Mason jar full of water was so turbid as to be opaque.

Witnesses described that the water had strands of effluent floating in it. [ 26 ] When the first employee of the well operator arrived at the well head following the emergency complaint he quickly assessed the emergency and turned off the pump immediately. Shortly thereafter the employees of the well operator noticed that there was a large conduit pipe that went from the eastern edge of the well property underneath the well property. Prior to this time this pipe never been noticed by anyone. No one was aware of why that pipe was there or in which direction it travelled.

This pipe is not found on any of the sealed engineering drawings which depict the well site and purportedly the various works underground. There is no doubt, however, that this conduit was not difficult to see if anyone had so much as walked around the property for a thorough inspection.

[27] The District and the operator of the well responded immediately to this catastrophic event and notified all of the users of thewater system of the incident and the users were all instructed not to use the water until further notice. There is no question that theDistrict’s emergency response plan was thorough and complete. It is equally evident from the evidence that the District's ongoingcomplete review of a disaster response plan was a matter of constant attention. In this regard the District and the Operator are to becommended for their quick response.

The Crown takes no issue with that. [28] What the Crown does say, however, is that the District is criminally responsible for violating both the Water Act and theDrinking Water Protection Act because they delivered polluted water to the users of the water system. While I agree that the Districtviolated the requirements of both of those Acts, that is only the beginning of the analysis.

The District says that they used due diligencein operating and maintaining the water system at Antwerp Wells and, as a result, they are not criminally responsible for what happenedin January 2010. [29] The analysis of whether or not the District is criminally liable is found in the Supreme Court of Canada decision of Regina v.City of Sault Ste.

Marie, (SCC), 40 C.C.C (2d) 353 (S.C.C.) and is captured in the passage: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defense will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may property being called offences of strict liability. (Regina v. City of Sault Ste. Marie (1978) (SCC), 40 C.C.C (2d) 353 (S.C.C.) @ 374 [30] I hasten to add that the defendant need only prove that he used due diligence on the balance of probabilities.

So the questionfundamentally is, did the District take all reasonable care in avoiding the risks attendant on the operation of this well? [31] Having carefully considered the evidence I am not satisfied on the balance of probabilities that the District did use due diligencein avoiding the risk that the shallow well at Antwerp would become contaminated and thereafter provide non-potable water to the users. [32] This defence took the position in argument that the District was obligated to provide water to the users and that essentially theAntwerp well site was the best of the various waterworks.

That approach is fundamentally inconsistent with the statutory regime whichrequires those delivering water deliver water that is potable and free of contaminants. It was not simply a question of choosing the watersource with the least risk; rather the question was whether or not water could be provided at all if the risk could not be properlymanaged. [33] For over a decade, the District was aware that there were significant issues with respect to a cross connection between thedrainage system around the well site and the well itself.

On a number of separate occasions they were given directions to install abackflow preventer to contain this risk. They did not do so and while a backflow prevention system as envisioned would not have beensuccessful nor did they take any other equivalent steps to ameliorate the risk. It is true that they continued to dialogue with InteriorHealth with respect to other options to manage the risk. It is also true that Interior Health approved the continuing use of the well andagreed to allow the District to manage the risk by a rigorous regime of monitoring.

But again, that continues to allow the District toplace the risk attendant on that approach on the users. While the District may have satisfied the authorities at Interior Health that, in myview, did not absolve them of liability. [34] Once the District became aware that the potential for a cross connection existed they were essentially aware that the well was atrisk. It was incumbent on the District then to determine with clarity the source of the cross connection and any other vulnerabilitieswithin the system. They did not do so.

They continued to place the users at risk. [35] In response the District says the risk was effectively met by the system of chlorination and monitoring with the chlorineanalyzer.

As indicated above, if the chlorine analyzer could be depended upon to function properly and was reliable, any potentialcontamination of the wellhead would be answered by the well being shutdown when the chlorine analyzer fail to detect appropriateresidual levels of chlorine in the distribution system. [36] The evidence showed the chlorine analyzer was unreliable in this instance because of the high levels of manganese in the deepwell, which would crystallize and impede the proper operation of the chlorine analyzer. The evidence showed, therefore, that the“failsafe” system on which the District relied was faulty.

Mr. Blundell testified that “some weeks prior” to January 13, 2010 the chlorineanalyzer had failed to produce proper readings.

It is not clear in what way or why the chlorine analyzer failed but the fact of its failurecertainly ought to put the District on notice that the well needed to be shutdown. [37] At the commencement of the trial the Crown advised the Court that part of the theory of liability was the knowledge of theDistrict that, as a result of insufficient return time between when the chlorine was injected into the water and the time the water wastested, that the chlorine analyzer should not have been relied upon.

The evidence did not establish any frailties in the installation or useof the chlorine analyzer other than the frailties that appear to have been caused primarily by the analyzer plugging. Similarly noexplanation was provided by the District to explain why, on this occasion, the analyzer failed to function. In my view in order tosuccessfully rely on the proposition that the chlorine analyzer system constituted “due diligence” with respect to the known risk, theCourt would have expected to receive an explanation why the failure of the analyzer on the date in question was not reasonablyforeseeable.

On the contrary the failure of the analyzer seems entirely ordinary albeit that in this case the result was not a false positivereading, rather a false negative reading and a failure to shut down the pumps. [38] A great deal of evidence was led in an attempt to determine how the effluent entered into the well such that it could be pumpedinto the distribution system. Considering all of the evidence, it is not possible to determine how the effluent entered into the drinkingwater. I am satisfied that the effluent did not enter into the drinking water by entering up through the drainage system from Coldstream

Creek and back into the discontinued well through that to the aquifer. That pathway is highly unlikely given the level of turbidity in the water from the shallow well. The path had to have been more direct and not subject to the filtration provided by the fill in the discontinued well. The Kerr Wood Leidal Interim Report of March 2, 2010 makes that point convincingly. Our conclusions at this point in time is that Well No.3 could have acted as a contamination pathway. It may not have been the only pathway.

In addition, we are concerned that anecdotal evidence suggests that the contaminated water in the distribution system was quite turbid. We find it somewhat difficult to understand how contaminated water which would have passed approximately 4.5 to 5 m (15 to 16 ft.) of sand and gravel in the aquifer could have been turbid when it was discharged into the distribution system. Exhibit 20, Page 7 [ 39 ] In my view, the most likely path seems to be the pipe that was discovered on the eve of trial that appeared to lead under the pump house. [ 40 ] The cross-connection that was observed by Ms.

Clark in early 2000 and reported in the Golder Associates reports in 2006 and 2008 referred to a pathway from Coldstream Creek up through the drainage pipe and then from there somehow into the well system. It is equally unlikely on reviewing all of the evidence that indeed this was the pathway by which the effluent entered the well on January 13 th 2010. The most likely explanation is that it entered the well through an as yet undiscovered pathway. Considering all of this, however, in my view it is not an answer to these charges that the effluent did not likely follow the pathway that Ms.

Clark and the Golder Associates report believed was a problem but rather entered the well by an undisclosed pathway. By the time of the receipt of the Golder Associates reports the District was on notice that they had a well that was subject to contamination by ground sources.

From that point on it is incumbent on them to find out the sources of potential contamination and eliminate or manage that risk. [ 41 ] The District also submitted that is free of liability because in its management of the well site it relied on the “as built" which did not show any pathways that would allow contaminants to enter into the wells. It may well be that relying on “as built” is acceptable and constitutes due diligence. That ceases to be the case however when the District knew, or ought to have known, that the “as built” are not reliable.

In this case the District was made aware there was a potential cross connection between the manholes and the wells. A review of the “as built”, however shows that there is no cross connection between the manholes and the wells. A reasonable person having been told that cross connection must exist and then reviewing the “as-built” would be forced to the conclusion that the “as-builts” are not accurate.

In that circumstance a reliance on the “as-built” does not represent due diligence. [ 42 ] On the Court's assessment of all of the evidence there was never a satisfactory explanation provided as to the existence of one of the four pipes found in the south manhole. There is no clarity and I am not satisfied of the balance of probabilities that anyone ever understood, prior to the event in question where each of these four pipes came from and where they drained to. At best the evidence seems to suggest that one of the manhole conduits simply travelled some distance away from the manhole and ended nowhere.

On a review of the “as-built” it is incumbent on District to know where that pipe went to be able to satisfy themselves that it was not a potential conduit for pollutants to into the water system. The District did not do that. [ 43 ] There is no question that the District failed to provide portable water as is required by the Water Act and the Drinking Water Protection Act . I am not satisfied on the balance of probabilities that the District used due diligence to manage the risks that they knew or ought to have known existed in these wells.

As a result I find the Regional District of North Okanagan guilty on all four charges. __________________________________ The Honourable Judge D.M. McKimm