Court finds RDNO guilty in contamination case

Judge finds the Regional District of North Okanagan guilty of four charges in connection with a water contamination case in 2010

A provincial court judge has found the Regional District of North Okanagan guilty of four charges in connection with a water contamination case.

Mayland McKimm found the regional district guilty of failing to provide potable water, allow contamination of drinking water, introduce foreign matter into a well and operate a well in a manner to cause adverse impact in connection with the contamination of the Antwerp Springs water source in January 2010.

About 3,500 people were notified in January 2010 that the Antwerp Springs well source had been contaminated, and that they must not drink the water until bacteriological tests are clean.

The source became contaminated after a series of failures and bizarre warm winter weather.

Manure had been spread onto snow and frozen ground on a surrounding hillside near the Antwerp Springs wells, but on Jan. 13, 2010 a heavy rainfall landed on top of the substantial snowpack.

That caused the snow to melt rapidly, and the water landing on the snowpack flushed the effluent into a culvert which then went to various drains and ultimately onto a field near the Antwerp Springs wells.

McKimm said it was not possible to determine how effluent entered the Antwerp Springs well and was pumped into the distribution system.

“I’m not satisfied on the balance of probability that the regional district did use due diligence in avoiding the risk to the shallow well (one of three wells at Antwerp) to become contaminated and thereafter  provide non-potable water to the users,” said McKimm.

The judge said in delivering his decision Wednesday that the regional district had known for more than a decade that there were “significant issues with a cross-connection to the drainage system around the well and the well itself,” and had been ordered on a number of separate occasions  to install a backflow preventer to minimize a contamination risk.

“They did not do so,” said McKimm of RDNO.

The regional district maintained dialogue with Interior Health about other options to manage the risk. McKimm said IH approved the continuing use of the well and agreed to allow RDNO to manage the risk by a vigorous regime of monitoring.

“That continued to allow the district to place the risk intended on that approach on the users,” said McKimm. “…In my view, that does not absolve them of liability.”

Once the regional district became aware the potential for a cross-connection existed, said McKimm, “they were aware the well was at risk.”

“It was incumbent on the regional district to determine with clarity the source of the cross-connection and any other vulnerabilities within the system,” said the judge. “They did not do so. They continued to put the users at risk.”

Crown lawyer Joel Gold said McKimm gave a thorough and considerate decision.

“Crown is pleased he did so because this is an area where there aren’t a lot of decisions,” said Gold. “It’s clear to the Crown and the public that  the judge kept the safety and health of the environment and the water users at the forefront when coming to the decision.”

RDNO board chairperson Patrick Nicol was disappointed with the decision, saying RDNO had a strong case and insisted staff did work with great due diligence.

“We were met with a challenge on that day with a weather circumstance I don’t believe we’ve seen in 50 years,” said Nicol. “We handled it so there were no incidents. We worked tenaciously on the water system to serve some 80,000 people. We’ve been one of the leaders in trying to bring potable water to small and some urbanized areas. We’ve done it at great cost.”

The regional district said Thursday through a news release that the decision suggests “a utility must shift more from the management of risks to the reduction and elimination of risks within its system.”

“This may be a very financially onerous task,” said RDNO. “The decision reinforces that we at the RDNO must diligently proceed to complete and implement the Master Water Plan, something the RDNO is committed to do.”

Sentencing submissions by both Crown and the RDNO’s attorney will be heard Oct. 16.

The District of Coldstream, Pan-O-Ramic Farms and its then owner were also charged in connection with the contamination.

The district pleaded guilty in June 2012 to one count of failing to provide potable water and was fined more than $18,000.

Defence expects to seek a similar monetary penalty for RDNO.

Asked if the regional district should have done something similar to avoid a trial, Nicol said the price of democracy is not cheap.

“The board unanimously believed there was due diligence involved,” he said. “That’s one of the reasons you can defend yourself.”

Crown would not say how much it will be asking the regional district to pay.

Pan-O-Ramic Farms and its former owner also entered guilty pleas and were fined $1,000 each and ordered to make a $7,000 contribution to the Heritage Conservation Trust Fund.