Judge Mayland McKimm laid down an unprecedented verdict today (Wednesday) that found the Regional District of the North Okanagan guilty of all four quasi-criminal charges surrounding water contamination in Coldstream at the Antwerp Springs water source in January 2010.
Crown Counsel was pleased with the verdict and says the judge took the time and care in putting the safety of the public above all else.
“The judge obviously gave a very thorough, considerate decision, and the Crown is pleased that he did so because this is an area where there aren’t a lot of prior decisions. It was also clear to the Crown that the judge kept the safety and the health of the environment but also the water users at the forefront when coming to his decision,” said Crown Counsel Joel Gold.
Prior to this trial parties involved and charged (The District of Coldstream, Pan-O-Ramic Farms and Pan-O-Ramic's former owner, Ernest Palfrey) all plead guilty to the same incident. They did not go to court and were fined $18,000.
However the RDNO decided to take it to trial because they were adamant they weren’t at fault.
“After a conviction you always think it would have been preferable if you had just pled guilty. But our difficulty was that the Regional District didn’t believe that they had acted without due diligence and if you don’t believe you acted without due diligence it would be improper to plead guilty,"rationalized RDNO Defence lawyer Rob Bruneau.
"You cant plead guilty to an offence and then turn around and say but we really were due diligent,”
The four counts the RDNO were found guilty of are:
- Operating a well in a manner to cause adverse impact
- Introducing foreign matter into a well
- Allowing contamination of drinking water
- Failure to provide potable water
The 2010 incident occurred at Pan-O-Ramic Farms where the owner asked an employee to cover a snow packed field with manure in early January.
By January 10 the temperature had increased rapidly and there was heavy rainfall which melted all the snow and swept the effluent into a allegedly unknown culvert that led directly to three separate wells operated by the district and owned by the RDNO.
From there it went directly to residents faucets.
Witnesses testified the water looked muddy and brown and stunk like manure as it came out of their of the taps.
Judge McKimm was adamant in his findings that the district had ample time and warnings starting back in 1999 that there was a major problem with this water system and that cross contamination was inevitable, supporting his finding the RDNO did not do their due diligence under the Water Act and Drinking Water Protection Act
“The District is criminally responsible for violating the water act and the drinking water act and I cannot on the balance of probabilities find that the district used due diligence in operating the water system in the Antwerp Wells," stated McKimm
The judge determined the District was well aware that there were multiple issues and concerns with the well.
The shallow well was susceptible to ground water contamination and the deeper well had very high levels of magnesium that often crystallized and clogged their only safety net being a ‘Chlorine Analyzer.’
The Analyzer is supposed to go off if the water is not clean enough and turn the pump off immediately but on the day of this incident the Analyzer was not working because of the magnesium crystals, something the district was well aware could happen.
The district was also warned in 2006 and again in 2008 that the cross contamination with the well and drainage system was a real concern, however, chose again to rely on the chlorine analyzer.
In 2007 Interior Health investigated and found that cross contamination was a concern but supported the district's decision to continue to use the water system with their only sole safety net being the faulty chlorine analyzer.
"It is incumbent on district to determine sources of cross-connections and any other vulnerabilities in the system and they did not do so and continued to put the users at risk," said Judge McKimm.
In the verdict McKimm did commend the district on their emergency response procedures on the night of the event which prevented anyone from getting sick from the water.
Emergency officials worked through the night knocking on doors to ensure affected residents in the Coldstream and Lavington communities were warned not to use the water for drinking, washing, or even laundry.
The fine the RDNO faces is still up for debate.
The defence says they will ask to be fined the same amount that the District of Coldstream was fined ($18,000) but believes the crown will ask for more.
“The Crown now has to decide if they are seeking anything more because it is their view the Regional District has a greater responsibility and a greater involvement,” said Bruneau.
Crown Counsel would not comment on what sort of fine they will be seeking but confirmed it will be a monetary penalty.
Further charges or civil suits against the RDNO are not expected as everyone affected by the water contamination have already been compensated.
Both sides will meet in court again Oct. 16 to determine the fine the RDNO will have to pay.