Eugene Bourgeois appeared before the Ontario Ministry of Finance Assessment Review Board (ARB), on Aug. 26, 1997. He was appealing the municipality’s assessed value of his property on the basis that honest disclosure of the risks of its proximity to the Bruce Nuclear Generating Station to a potential buyer would decrease the amount the buyer was likely to offer for the property.
Specifically, those risks were with respect to fumes which came from the flair stacks of the Bruce Heavy Water Plant (BHWP) (now no longer in operation) and from the Bunker “c” oil and other materials now used in test burns and fire drills at the plant.
When the drills take place during periods when the Thermal Inversion Boundary Layer (TIBL) is in place, toxic gas tendrills drop into the hollow behind an escarpment, where the Bourgeois farm is located.
On the basis of the argument presented by Bourgeois, below, the ARB ruled in his favour and reduce the appraised value of his farm. The matter was appealed. The amount of the reduction was adjusted but the ruling held in Bourgeois’ favour.
What follows is the text of his presentation on that day, which was accepted into public record.
Included in the presentation are references to exhibits that are on file and available through Mr. Bourgeois, the ARB archives or the Bruce Centre.
|A: Presentation of the facts
1: Certificates of Approval - no changes have been made to the CA for the BHWP since their issue that would help to prevent the adverse effects to our farm operations and to myself and family. Exhibit: 2 Certificates of Approval. MOEE (Note: Ontario’s then “Ministry of Energy and Envrionment”, now Ministry of Environment) has decided, pursuant to my Environmental Bill of Rights application, that no change is required.
2. H2S and SO2 emissions are known to cause symptoms of headache, insomnia, fatigue, mild depression and irritability as well as respiratory tract and mucous membrane irritation, among other factors, at concentrations ranging from 2-500 ppm, in some cases without consideration of duration. Exhibit: fact sheet, and Table 4 from the AECB BMD 94-62 (below). Emissions at these level are controlled by BHWP during flaring and these concentrations could be eliminated, as they have been since 1994, by formal consideration of meteorological conditions.
3. MOEE staff has requested in 1996 that the operating procedures of the BHWP be amended to give consideration to the rise of the Thermal Internal Boundary Level (TIBL) during planned flaring. However, these conditions have not been incorporated in the CAs and the response on BHWP’s part is voluntary.
4. The TIBL occurs more frequently in spring and summer, with the highest frequency occurring during May, at 46.9% of the time.
5. Despite the MOEE’s recommendations, on May 24 and again on May 27, 1996, flaring at the BHWP was occurring during TIBL conditions, leading to sulphurous odours on our farm.
6. By not attaching this condition to the CA for the BHWP, the Director, who has the power under section 9 of the Environmental Protection Act, to impose new terms and conditions to the CA, has failed to implement the provisions of the Environmental Protection Act, namely, the protection and conservation of the natural environment.
7. The changes implemented by the BHWP to its process control manual in response to MOEE recommendations are voluntary and have no regulatory weight.
8. Without the requisite terms and conditions, we must rely on voluntary, as opposed to mandatory actions, by the BHWP for protection from the adverse impacts caused by flare stack emissions.
9. The AECB, in its 1994 document: “The Effects of Gaseous Emissions from the Bruce Heavy Water Plant on a Local Sheep Farmer”, Exhibit BMD 94-62 says in its summary: “The is evidence that Mr. Bourgeois’ health and that of his sheep have been affected by something. We have concluded that the concentrations of H2S and SO2 averaged over hours or day are within provincial guidelines and are not at a level at which health effects would be expected.” There it is, then, that I and my sheep have been harmed by something.
The AECB’s conclusion is flawed: I have not objected to concentrations at the levels the provincial averages have indicated. What is of concern are the peak concentrations that occur when flaring is done through a TIBL, and these levels are higher by far, ranging to 10 ppm of H2 S and 100 ppm of SO2 , Exhibit: July 13, 1995 letter from Willard Page.
In May, 1985 and again in April, 1998, I was accosted by high concentrations of noxious gasses, at least one of which was sulphur dioxide because I reported a metallic taste in my mouth. These events were consistent with flaring operations at BHWP at the time and were reported as significant events to the MOEE and the AECB.
Our sheep have been exposed a number of times to similar concentrations and have suffered a variety of symptoms as a consequence, including half the flock going blind after an exposure in June, 1990. These events are accepted by all involved. What is in dispute are the possible concentrations and their duration.
• The AECB believes 3 ppm of hydrogen sulphide and 5 ppm for sulphur dioxide, for periods not greater than a few moments.
• The MOEE believes peak concentrations of 10 and 100 ppm are possible, and again only for brief periods.
• Prof. Lumley of Cornell University and Pro. Wyngaard of the University of Pittsburgh, believe concentrations of at least 10 ppm and 100 ppm are possible, indeed likely to occur here during a TIBL, and that the duration will be for periods of an hour or more, first because the gases are likely to persist once they reach the ground, and secondly, because they will continue to descend through the TIBL in approximately the same locations until the meteorological conditions themselves change.
After exposure to these flare stack gases, lambs born will show a high incidence of stillborns, because they will have been born in a heavy sac, or will die shortly afterwards because they will lack the instinct to nurse or eat, even when they were hungry. I will be submitting expert witness reports to substantiate these claims.
There have been a number of meetings between experts from the regulators, Ontario Hydro and those representing me. The general understanding has been that something unusual has gone on here that appears to be related to activities at the BHWP. Small disagreements remain concerning the physics of the atmosphere when super-heated flare stack emissions are introduced. There is support, including a 1995 Ontario Hydro risk assessment report that describes scenarios which place our farm at the centre of maximum risk. Unfortunately, Ontario Hydro will not release this report for publication.
I own and operate a sheep farm in conjunction with a wool firm known as The Philosopher’s Wool Co. We purchase, process and manufacture wool from Ontario producers and distribute and sell these products throughout North America, including at a retail store attached to our farm house. Prior to this I have a Master’s degree in Philosophy from the University of Waterloo, and was in the Ph.D. programme when we bought this vacant 10.5 acres, approximately 3.6 km from the BHWP. I have designed and built our farm property from scratch, so that all of the buildings are new and of superior construction, with the exception of one building, the log cabin. It was originally built in 1851 as the McInnis homestead and I moved and restored the building to its present location, where it is the showroom for our sweater designs.
I must assure the Board that I am an innocent landowner in this regard. I did not know of the potential effects of gaseous emissions from the BHWP. We understood that we were moving beside a nuclear generating station, but I surmised that the risk was relatively small. Although I did not understand nuclear technology, people with who I checked who did were universally enthusiastic about the safety of the Candu reactor, including my father-in-law, who is emeritus professor of physics at Cambridge University. He was in Ottawa at the NRC when the design was being discussed and established, and he expressed every confidence of its safety. We did not know about or understand the heavy water plant and did not think it of consequence. If it were, people would not be allowed to camp overnight at Inverhuron Provincial Park, as they were in 1974 when we bought our land and built our house.
For approximately 20% of the time, winds will be from the north/north west, that is, from the BHWP to us. Any time flaring occurs under this condition, the instantaneous plume will pass overhead. Most of the time it does so with no apparent danger. Under certain meteorological conditions, a TIBL develops as the warming air mass leaves the lake and travels over the ground. It will form a rising stream that intensifies as it passes in land because the escarpment to the east acts as a valley wall to intensify the warmth in the valley. TIBLs occur when there is inversion and during the month of May, 1985, the ceiling was 220 meters or less frequently. A TIBL would only have to rise 220 meters before it would intersect the stable stratified boundary layer. That is the area where the instantaneous plume lives, flowing from the flare stack.
Normally, not much from the ground will disturb this layer and it is generally thought to be a safe place to put flare stack emissions because they will be broken up and bounced around by the wind streams that exisit in this layer. This, in turn, reduces the toxicity of the emission stream by mixing it with fresh air, thus diluting the mixture. Over time and distance, the emissions will fall to the ground in a much diluted form and with little known consequence, generally in concentrations of less than 1 ppb. Apart from the BNPD, which includes the BHWP, there are no sources of air contaminants in the vicinity.
Gaseous emissions leaving the flare stack include hydrogen sulphide, sulphur dioxide, nitrous oxides and sundry heavy metals from the corroded pipes. It is not known what these are nor in what concentrations they occur. Whenever the BHWP engages in flaring under TIBL conditions (about 47% of the time in the spring) and the wind directions is from the BHWP (about 20% of the time), fumigation of flare stack emissions can occur here. The physics of this problem has been studied in detail by Ontario Hydro, and their expert from Colorado, Dr. Weil; by Robert Bloxam and others at the MOEE; by Lily Truong and staff at the AECB, by Prof John Lumley at Cornell University and Prof Wyngaard from the University of Pittsburgh for me; by Chuck Mathias at the Canadian Environmental Centre. In every case, it is not possible to discount the danger from the TIBL for our property. Exhibits: meteorological reports, etc .
My own two encounters with it testify to this. In May of 1985, I was picking stones in a neighbour’s field when I was overcome by this noxious gas, leaving a metallic taste in my mouth. I went home to lay down while the symptoms of headache, naseau and disorientation went away. At about 1:00 PM, I went out to pick some mushrooms near the Provincial Park and was again affected by the gas. I went home and lodged a formal complaint with the MOEE and Ontario Hydro. Ontario Hydro had had a major release of hydrogen sulphide on that occassion during a strike by employees. Exhibit: Letter from Frank Giorno the James Bradley, Minister of the Environment.
I went to see my doctor, Dr. Knox, and he confirmed my self diagnosis and gaseous emissions from the BHWP as the cause, Exhibit: letter July 18, 1985 to Eva Ligetti .
I had just changed my farm management practice from a confinement system, then in vogue for the production of new crop lambs, to a pasture management system utilising high tensile high voltage fencing systems from Galagher. I would be developing a local market for heavier lambs from a pasture management system. Thus, it was not until lambing in 1985 after this gas event that I noticed aberrant problems, particularly with lambs born in heavy sac. None of the routine diseases that might have caused this were found in my sheep or in the blood samples submitted for testing.
I believed the hydrogen sulphide had been the cause, and so increased the grain intake of the ewes to ‘condition’ them out of the problem. I believed that the incident was an isolated one due to the attempt by management to operate the plant during a strike and that these circumstances were not likely to recur. Our lambing ratios gradually improved until the time of my next incident, in April of 1988.
This time I was peaceably winding up the electric fence when a fumigating wave descended on me with full force, feeling like someone had sneaked up behind me with a block of wood. I was temporarily blinded, seeing bright stars, and had an instantaneous, massive headache. I was disoriented nauseated and uncoordinated, unable to perform such simple tasks as adding a column of numbers or twisting the ends of wire together. Our lambing, which had been proceeding wonderfully with virtually no problems, suddenly started with problems again, first with lambs born in heavy sacs, then with lambs who would not nurse.
In my own case, I believed that hydrogen sulphide was the cause and there are no known remedies for such an exposure other than fresh air. The symptoms would disappear over time and were, but much more slowly than my previous encounter.
As well, I had persistent low-level depression, something completely unfamiliar to me at the time and Dr. Knox referred me to Dr. Haines. He sent me for testing with Dr. Ramona Carbotte, registered psychologist, who conducted a neurocognitive evaluation of possible long term sequel for toxic exposure. Her report, Exibit: letter from Ramona Carbotte to Ted Haines, Jan. 3, 1989, concludes that I did suffer from central nervous system disorders which had been caused, and it seems that hydrogen sulphide was the source.
Dr. Haines follow-up letter to Dr. Knox, Exhibit: letter dated July 28, 1989 , comments that “certainly the absence of documented cause [for the mortality in our flock} is striking.” Later, he concludes: “We may never know for certain whether these exposures have caused the problems which have been evident in his livestock and himself but the situation is suggested ...”.
A follow-up study by Dr. Carbotte in September, 1990: Exhibit: letter from Dr. Carbotte, Dec 20, 1991 , demonstrates marked improvement over time, findings consistent with exposure to toxic gas. She concludes: “Your ability to do appreciably better in 1990, relative to your performance in December 1988 (despite feeling you still have problems) would be further substantiation of my interpretation that you were still showing residual deficits in December 1988 of the neurotoxic exposures in the Spring of 1988, since any other potential reasons for impairment in performance were not apparent at that time.”
These circumstance serve to demonstrate that this property is unique because of its position in the valley and its history of exposure to toxic contamination. None of the comparables have the same direct physical relationship with Ontario Hydro that we do, and only a few complaints have been received over the years from neighbours south of the Little Sauble River.
The symptoms I have described are consistent with those of individuals who have been exposed to high levels of hydrogen sulphide and/or sulphur dioxide, albeit at levels higher than those recorded at the monitor station #18007. In addition, Prof Lumley, in his 1996 report, identifies why the gases will train on our property and keep descending once they start until the weather and meteorological conditions change. This leads to concentrations that are much higher than provincial averages and at levels known to cause harm to people and animals. In view of this, there can be no comparables in terms of potential environmental contamination with our property.
On June 11, 1992, Watson Morris, a summer student employee, and I were at the north-east corner of the barn repairing a door stop. At that time, we noticed a thick black cloud coming from Ontario Hydro’s fire drill exercise, during which they burn bunker “c” oil. This plume rose to a ceiling and travelled along at that height until it reached the back corner of our farm. There it descended rapidly and intact, much as Prof Lumley says the flare stack emissions during a TIBL. At ground level, it rolled along the ground until it reached the barn. The width of the plume was about 20 meters. We experienced congestion and choking sensations almost immediately and went off to the house for safety, where it was completely clear. Exhibit: letter from Watson Morris, July 2, 1992. There have been many published reports about the incidents here over the years and Exhibit: The Globe and Mail, Mar 19, 1990 is one.
B. Effects on sheep
The Sulphide Research Network of Alberta has been involved in helping me since 1989 and both Dr. Reiffenstein and Dr. Prior have been steadfast in their support. On Nov 21, 1991, Dr. Reiffenstein wrote a letter that identifies symptoms we have reported in our sheep with known concentrations of hydrogen sulphide. In Exhibit: Reiffenstein Letter, he prepared a report for the Public Health Coalition that further relates exposure levels to health problems. Exhibit.Tee Guidotti, in the Int Arch Occup Environ Health, 1994 , describes the current state of research of this gas, and notes that much of the research focusses on lethal concentrations, with virtually nothing about sub-lethal doses. Exhibit: Table 4 identifies central nervous system disorders common at concentrations < 100 ppm.
As such, what data that there is can only be suggestive of effect, although he does note that exposure time diminishes critically with concentration. In all the cases he discusses, each of the subjects showed similar neurocognitive dysfunctions as Dr. Carbotte found in me.
Ontario Hydro hired the University of Guelph to conduct an epidemiological study of our sheep. This followed a report by Dr. Misener of Agriculture Canada in which he identifies flare stack emissions as the source ou our lambing problems. Exhibit: Misener. The purpose of the epidemiological study was to determine two things: first, whether there is a problem and secondly, whether an on-farm source could be discovered to account for this. Exhibit: minutes of meeting be Keith Mombourquette, Sept 13, 1991 .
It is important to note that discovery of an off-farm source, ie., air-borne emissions, was explicitly excluded from this study, particularly in virtue of later statements that the epidemiological study did not pinpoint blame with the BHWP.
In spite of this, Dr. Slana, Exhibit: epidemiological study, concludes: “Examination of basic management protocols regarding pasturing, feeding, housing and lambing in this flock, on several occasions, did not reveal any obvious faults in husbandry skills which would account for this situation. Through extensive discussions, it would seem Mr. Bourgeois makes every effort possible to provide quality care prior to lambing and, most importantly, during the neonatal period. The program is failing despite his best efforts.”
The Alberta Environment Centre, with a team led by Dr. Michael Prior, conducted the scoping study, Exhibit: scoping survey, to determine a methodology to establish a cause-and-effect relationship. This programme has never been undertaken and Dr. Prior strongly disagrees with the position of the AECB in their BMD 94-62 and has suggested that this study would eliminate the ambiguity provided by a lack of statistical database of sheep. He continues to work with me and is concerned at the moment with demonstrating a causal link between meteorological events and morbidity and mortality in our flock.
The AECB responded in 1995 formally to Dr. Slana’s study with “The Potential Effects of Gaseous Emissions from the Bruce Heavy Water Plant on a Local Sheep Farmer: A Synthesis Report”, Patsy Thompson, Oct. 6, 1995. This report identifies the cause of lambing disorders to be due to the excessive age of our ewes. Numerous objections were raised concerning this report, not the least of which was that the AECB used less than 50% of available lambing records.
Dr. Hooper, Exhibit 31, Oct. 18, 1995- letter, presents her concerns, and Dr. Paula Menzies, OVC, has clarified the
role she has played in identifying age as the source, Exhibit 32: Menzies, Oct. 12, 1995.
In January 1996, we hired Dr. Slana to address the question of age and he has concluded that it is not the case, using all of the data. Exhibit 33- Slana, August 8,1997. This report is in draft form at present and has been sent out for review prior to finalization.
Finally, the MOEE has prepared a phytotoxicology survey in 1994, Exhibit 34, Dr Emerson. During this survey, as noted in the AECB 94-62, the BHWP was shut down for extensive repairs during the summer months when this survey was conducted and so we were not exposed to concentrations of flare stack emissions at this time. I predicted, p2, to Mr. Emerson that our lambing would be normal in late 1994, early 1995, and it was. He comments on this in the report.
In all that has been presented to date, there is no conclusive proof, but there is certainly a preponderance of evidence. There is no evidence of any other source of harm, as attested in the letter by Mr. Jim Janse, MOEE, but it remains highly suggestive. Without question, the evidence of these gases must be seen to be a nuisance; almost certainly, they ought to be seen as the stigma to this property that they are.
2: Argument for stigma
1) Siting standards
BHWP does not meet, and never did meet, siting standards for chemical plants of its type. The acknowledgement of this was made public by the AECB in a news report appearing in the Owen Sound Sun Times, Oct. 16, 1995.
In this report, it is acknowledged that the contour-5 zone, which includes all land within 5 km of the BHWP, should be open parkland, golf courses, etc., and furthermore, should have no residential component. I submit a photocopy of this news report as Exhibit 35, The Owen Sound Sun Times, Oct. 17, 1995 .
Exhibit 37, AECB BMD 90-139 Appendix 2: “Siting Guidelines for Heavy Water Plants using the
Girdler-sulphide process”, Revision 1, 12 November 1973(?), section 4.1 states: “the site should be chosen with a very low density within the zone of influence of the heavy water plant (e.g. typically rural, about 20 to 30 persons per square mile). Population concentrations such as villages, major service and recreational facilities, particularly overnight camping facilities, schools and hospitals, should be avoided.”; and section 4.2 states: “The topography, hydrology and meteorology of the area should be such that there are no abnormal conditions which could result in a substantially increased risk in one sector as opposed to the surroundings in general, (e.g. a plant should not be located in a deep valley which would channel a gas release with little dispersion and possibly cause a hazard to a populated area which would otherwise have been sufficiently distant as not to be at risk).”
Inverhuron is a residential and recreational hamlet and Inverhuron Provincial Park was an overnight camping facility. In addition, the escarpment that surrounds Inverhuron creates just such a valley with its own micro-meteorological conditions. Ontario Hydro sought to quantify these conditions and did so in the 1986 Tam report, Exhibit 6. This report concludes, in part: “A case was discussed in terms of the local meteorological conditions and the likely behaviour of low-level and high-level emissions. It was postulated that the emissions released in this case would travel downwind in the form of a fanning, concentrated plume. Because of the local topographical features, emissions would be accumulated at the base of the cliff, especially at night. While above the cliff, the plume would experience very little dispersion throughout the night. The lake breeze circulation in this case may further enhance higher than normal concentrations in the vicinity of the generating station”p.45.
The MIACC standards , which lead to the newspaper report, were published in June of 1995, confirming that the BHWP does not meet the siting requirements necessary. This is Exhibit 39.
Each year, Ontario Hydro distributes warning pamphlets to the residents within the 5km zone describing the dangers of a toxic gas release from the BHWP, Exhibit 40. This year, Bruce Township participated with Ontario Hydro to distribute the pamphlets under Bruce Township’s letterhead, Exhibit 41. The sum total of these events is to have created a level of uncertainty and fear concerning the safety of operations of the BHWP, leading to loss of enjoyment of property because of the possibility of a serious and potentially life-threatening release of toxic gases.
When individual purchasers of property are not informed of the potential hazards, and particularly the MIACC standards that suggest that no one should live here in this contour-5 zone the viability of market value, as represented by the sales to assessment ratios, is questioned because these purchasers are not willing buyers. Exhibit --- ARB92-199; ARB92-200: “Purchasers had not been informed of the radiological contamination and so, were not ‘willing buyers’.”
Letters from Edward Stewart, Exhibit 42 and John Kechnie, Exhibit 42 confirm that these were not “willing buyers” who would have certainly negotiated a lower purchase price, or not purchased the property at all. These letters confirm that a stigma attaches to the area affected by the MIACC standards.
Particular circumstances on our property mandate that I must inform any prospective buyer of the potential dangers of living here.
In 1985 I was exposed to toxic concentrations of gases while picking stones on a neighbour’s property and later that day on our property. The “Standard on the Valuation of Property Affected by Environmental Contamination” states: “To be granted special consideration affecting value, the owner must substantiate the contamination through an independent party (typically, an engineering firm testing for contaminants or a regulatory agency)”(P 13) details the balance of arguments in favour of an environmental stigma.
The letter from Dr. Knox, Exhibit 17, July 18, 1985 confirms the exposure I experienced. To address the problem of whether meteorological conditions exist that would allow for extreme concentrations of gases necessary to cause these cause-and-effect problems, Prof Lumley of Cornell University has been able to determine that highly toxic concentrations of sulpher gasses, in the order of 100 ppm, can fumigate our property during activities at the BHWP and, if so, will remain entrapped for periods of an hour or more, dissipating slowly, Exhibit 15, Report of Prof. Lumley, June, 1996. Moreover, he agrues that the very configuration of buildings on our property combined with the spaces between them form a wave harmonic that attracts and anchors the fumigating force, Exhibit 15.
The MOEE agrees that it is possible that our property could be exposed to 10 ppm of hydrogen sulphide and 100 ppm of sulpfur dioxide under certain routine operations of the flare stack, leading to the possibility of combined concentrations of h2s and so2 in the neighbourhood of 100 ppm or more. These are toxic concentrations. All agree that this could all occur while a nearby monitor records peak concentrations of 20 ppb, thus meeting the conditions imposed on the BHWP by its Certificate of Approval.
According to the the “Standard on the Valuation of Property Affected by Environmental Contamination”, section 3.4: “The burden of providing test results and proving contamination is on the taxpayer attempting to demonstrate the effect on value”. This, I believe, I have done.
In addition to the real harm demonstrated above, there is also the perception of harm to the public at large, as this article in the Toronto Globe and Mail shows, Exhibit 22, Linda McQuaig, Mar. 19, 1991 .
Thus it is clear that there is a stigma attached to our property. The next question to be addressed concerns whether or not I am an “Innocent Landowner”, as defined in section 4.4.4.
It is unquestioned that I sought answers to significant questions when we bought this property in 1974 to build a small farm. Our concern had been with the nuclear side and no one warned us of the significance of the BHWP, in spite of the findings of the siting requirements, Revision 1 in 1973. Our personal research lead us to believe that nuclear power generation, particularly as configured by the Candu reactor, was relatively safe. It was only my chance encounter with sulphur gases in 1985, and later in 1988 when I was more seriously affected, that I understood the full consequences of this danger.
The continuing history of lambing disorders between 1985 and 1994, when Hydro changed its operating policy, also bears testimony to this danger. I have done nothing to cause it, and everything to stop the potential for contamination, all to no avail. This change which Hydro has added to its BHWP operating policy is fundamentally optional: Hydro can override this option whenever it deems necessary. And those of us, innocently going about our respective businesses, can be assaulted out of the blue by a fumigating downdraft.
Section 4.4.4 concludes: “Value may be affected, because marketability could be lessened until the problem is corrected”. Because the impact of this environmental pollutant is so dangerous, the stigma is great. Over the time frame involved, we have lost some 150 lambs due to questionable circumstances involving the TIBL and verified BHWP activities. We have had economic as well as physical losses as a consequence. Without doubt, this has lead to emotional stress and the concomitantt loss of enjoyment of property, it has meant up-grading and adding protective ‘shells’ to our house. Also without question is the value these ‘shells’ and protective layers have added to our property as an entity.
In section 8, “Summary of Considerations”, it states: “The valuation of contaminated properties requires the assessor to ascertain all of the components of value, as if the property were unencumbered, and then to determine appropriate adjustments.” Our market value appraisal does the first part of this. It remains to determine the “cost” of the contamination. Although I did request this of the assessment office in my letter to Paul Strimas, Exhibit 36, my understanding from Mr. Doyle when he met with me prior to this hearing was that they would not be doing so.
There is great difficulty in determining just what an environmental contamination “costs” in terms of property valuations. I have surveyed a number of cases and feel the following might be helpful in determining this cost.
1.OMBD # 1309 Teeswater
The plaintiff argues that his property suffers a stigma because it is adjacent to a garage that was not legally
non-conforming at the time, although it became legally non-conforming in a subsequent by-law amendment. The garage produces dust, noise and pollution and has led to a loss of enjoyment of the subject property by virtue of these, and other harassments. Susan Fish, for the Board, decided that a 40% reduction of assessed value was warranted for the subject property because of the “noxious adjacent use” (p.2)
2. OMB # A 9100672
Plaintiff is beside a cement factory and experiences noise, dust and traffic as a result of plant activities. Although he and his neighbours have been awarded a 15% reduction in assessed values as a result, he believes this is inadequate because he suffers more than his neighbours. The board does not accept as comparables the median values given by the assessor because the nuisance deprives the plaintiff of full enjoyment of his property. None of the properties given by the assessor “exhibit the same direct relationship to the plant as Mr. Perrin’s property does and they don’t suffer from the same negative impact”. It concludes that Mr. Perrin’s property has been assessed inequitably, when compared with others in the vicinity, and thus, grants a reduction of 25%.
This property is unique because it has been a cyanide burial ground and, due to this, there are no comparables within the vicinity. As such, the plaintiff can do nothing with the land, including selling it, because there would not be found a willing buyer for it under these circumstances. The plaintiff was not the cause of the contamination. The Board reduced the market value of the property from $135,000 to $100
2) ARB92-199; ARB92-200
Properties in the radioactive area suffer market value reduction of 25% (p3). Comparables submitted by assessor do not account for amenities, such as air conditioning and swimming pools (p5). Radiological elements are all within acceptable standards (ie less than 100 microrems) and are the equivalent of one chest x-ray (p6). Purchasers had not been informed of the radiological contamination and so, were not “willing buyers” (p8). The Board concludes: “that loss of values due to public reluctance to be exposed to radiation, no matter how small the risk, is something for which the plaintiffs are entitled to be compensated for in damages”. (p8) No attempt has been made by the assessor to determine awareness of the buyers to the radiological contaminants. Hence, these sales should be removed as comparables. (P10). Reduced assessment by 44%.
3) UFFI a: RAC region 21 vs O’Driscoll, 16/3/88
Assessment originally reduced by 35% due to presence of UFFI. Original assessment re-instated after removal of UFFI, resulting in this appeal. Owner argues that property maintains the stigma because it is never possible to eliminate all of the UFFI. His property was approximately 86% free of UFFI after removal, the balance being caught in the 1" cavity between the frame and the brick veneer. Assessor argues that means to sales ratio are similar to comparables in the vicinity; however, Mr. Voll, a real estate broker disputes this and asserts that UFFI homes suffer a 15% reduction in market value, whether or not the UFFI has been removed. Once the stigma has become attached to the property, it remains stuck to it. And, since the UFFI has not been completely cleared from the property, the Board agrees with the owner and reduces the assessment by 35%.
1. Property stigmatized by the BHWP
If it is accepted that this property is environmentally contaminated by virtue of gaseous emissions from the BHWP, thequestion remains as to how this must be quantified in terms of assessed value. The impact must be great because the harm has been great, and remains as a real threat.
The BHWP can, and does, flare throughout the year. The TIBL is most active during the spring, but can be active at any time of the year, as the chart in the Tam report shows. They found the TIBL to be active all year round, to a greater or lesser degree. Thus, the impact from legal operations of the flare stack can be felt at any time.
A number of the OMB files report of environmental contamination nuisance and their impact on value.
A) a number of these deal with dust and noise: A 9400875, A 8700554, A 8700548,A890012, A 9600109,
A9501272,A9501272. In these cases, the value of the reductions ranged from 10%, for traffic noise and access routes to 27% for the dust and noise from a sand pit/junk yard. One further case, A 9401074 received a 40% reduction for the noxious adjacent use of a neighbouring garage that was built illegally, but later zoned appropriately.
B) some of the cases deal with the problem of high traffic volumes combined with noise (A9400777, A8600839, A8900400, A8900337,, A9300303), with problems ranging from supermail boxes, crowded beaches, parks, etc. and in these cases, the reductions have ranged between 5% and 20%.
C) some concerned transmission towers (40% - A9401078), oil spills (50% - A9401211), lagoons (59% - A8800413), salt (25% - A9500175, A 9500170). These properties have real, measurable and identifiable environmental contamination, hence, the impact on value is greater.
D) some, as in the UFFI cases, call for a 35% reduction, even when almost all (86%) of the UFFI is removed (A8700770)
E) where any of the above factors play a role, proximity to the source leads to a greater reduction (A 9100672, supermail boxes)
F) two of the cases, McClure Cres.(A890036), and the cyanide burial ground in Niagara Falls, led to reductions of approximately 99%, to $100, a nominal assessment. What makes the stigma so great in each of these cases is the perceived danger of radioactive subsoil, in the McClure Cres. case, to a property that is completely undevelopable, and so unmarketable, due to barrels of cyanide being buried on the property.
I believe our property is more similar to the McClure Cres. case than to many of the others. In the first place, the harm has been great for me, leading to identified central nervous system disorders, as well as for our sheep, leading to blindness, morbidity and mortality among our flock. The contamination is less obvious in our case because the nature of the descending plume is such that it is virtually impossible to have a monitor in place to catch the stream of gas, and, even if there were one so placed, it would attenuate the results by a factor of 5,000, thereby rendering highly toxic concentrations of the gas as harmless ones. Hence, it is impossible to have the actual physical measurements to support the known concentrations required to cause the symptoms observed. However, leading scientists attest to the harm that has occurred here and attribute this harm to toxic concentrations of sulphur gases. As well, leading meteorologists attest to the likely occurrence of meteorological events that would cause a known concentration, as a result of plant activities, one high enough according to the health experts to have caused the damages reported, to be in the air-stream directly overhead and to be drawn to the ground virtually undisturbed. The MOEE concurs that this is possible and says so in Willard Page’s 1995 letter to me.
On this basis, the basis of greatest harm, this assessment should be reduced to that of the most harmed properties, namely, $100. The notion of “similar real property” and vicinity” are difficult ones and it might be difficult to quantify the dangers here as similar to a cyanide burial ground or radioactive subsoil; however, the effects of exposure to toxic concentrations of these gases is so severe to anyone who has experienced it, that it is as if the danger were the same.
A820168 deals with the problem of “similar real property” and concludes that where a range of similar real properties are inequitably assessed, the properly assessed value should be one that matches the lowest of assessed value. The Foch-Dohmsmidt case in Thunder Bay (April 24, 1981) discusses the meaning of “vicinity”. It states: “If there is insufficient comparative similar real property within the immediate vicinity or neighbourhood, then “vicinity” should be extended in order to make sufficient comparison of other similar
real property so as to be able to form an opinion as to the inequity or inequity of the assessment under review.”
I argue that when dealing with environmentally contaminated property, “vicinity” must include properties that are similarly contaminated. Two of the hydrogen sulphide experts have stated that hydrogen sulphide is more toxic than cyanide. While the gas is not permanently resident on our property as it is with the buried canisters, it is virtually always present here because Ontario Hydro is on record from 1986 as refusing to tell me when it is likely to be here as a result of flaring activities. The effect on my enjoyment and safety of property is the same as if it were permanently resident.
The MIACC standards lists the entire contour-5 zone as potentially contaminated, and so, should have no residential component.
The siting requirements, which were revised in 1973, demonstrate that the BHWP should never have been built here without removing the population. Ontario Hydro, after building it, purchased Inverhuron Provincial Park and closed it to camping. It bought residential properties immediately adjacent and surrounding us and removed all the buildings and their occupants. Just last year, it removed the tenants, who were renting these as residences, from properties it owned along the 2nd of Bruce.
Clearly, Ontario Hydro believes no one should be living here or it would not have acted in this way with these properties. Hence, although the gas itself may not always be physically present, the risk of its presence at any time is considerable enough that Ontario Hydro will not allow anyone to live or camp on properties it owns, even when these properties had been legally designated as such until purchased by them. To ensure that no one will easily inhabit these properties again, Ontario Hydro has had all the buildings removed.
In the case of A 820168, the landowner appealed his assessment because a similar real property in the vicinity, land owned by the Grand Valley Conservation Authority, was assessed at a markedly lower rate. His appeal was allowed, even though the majority of similar real property in the vicinity was valued equitably with respect to one another, none of these were valued equitably with the class of properties held by the Conservation Authority.
In this case, it is clear the value placed by Ontario Hydro on residential properties it purchase in the vicinity. Ontario Hydro values these properties as vacant farm land, in accordance with the siting requirements of the BHWP. If this were taken as the standard of assessment for lands “in the plume” of gaseous and other emissions of the BHWP, then all property “in the plume” should be assessed equitably.
A9500170, A9500176 both discuss properties “in the plume” and reduce assessment by 25% because of road salt contamination of their well water; properties outside the “plume” do not achieve this. Certainly, this property, and a few others in the radius, would be taken in by the “plume” identified by the properties Ontario Hydro has purchased and dismantled. The principle of equity should reduce the assessment on these properties, including mine, to the rate paid by Ontario Hydro, or would pay if Ontario Hydro paid property taxes, on these properties. In such a case, the assessment would be reduced to the value of vacant farm land.
Either of these two cases would help to ensure that the notion of “willing buyer” is not compromised, as appears to have been the case with Mr. Kechnie and Mr. Stewart. Neither of these buyers, each of whom was from out of town, was aware that the Atomic Energy Control Board had informed the public that the BHWP does not meet the siting requirements for such an enterprise. If nearby properties were assessed at near zero to substantially reduced values, potential buyers would be warned that there might be a hazard here to which they do not wish to expose themselves.
If the stigma is not thought to be this great, then the range of assessment reductions are from 20% to 50% as noted in C) and D). The evidence I have submitted would warrant a reduction at the high end of this range. Because of the air-borne nature of this environmental contaminant, the class of properties affected would be analogous to the contour-5 zone and the reductions in assessed values would be highest closest to the contour-4 zone and lowest closest to the contour-6 zone. All of these properties must be deemed to be “in the plume” to a greater or lesser extent, as distance determines.
2. Market value.
a) Mr. Crozier has appraised our property as valued at $170,000, on an unencumbered basis. He has done so on the basis of recent sales of similar real property. In the case of Nesse Holdings et al vs the RAC Region 11, Oct. 29, 1984, it was decided that the recent sale is the best evidence of market value. He values our farm property correctly as a small-holding type farm, or hobby farm. Sales of recent similar property led to four comparables. One of these properties is the Osterman sale in April, 1995 at $160,000. This property is assessed at $140,000. If the market value of our property is $170,000, then its assessed value ought to be $148,000, and not $189,000.
b) The assessor has erred in the valuation of our new warehouse. First, he allocated 1 acre of land to this building, when it is on the same acre of land containing our house and farm buildings. Farm land, with only 10.5 acres and a flock of up to 50 ewes, is too valuable for our farm to be given up to building sites, except as minimally necessary.
c) He has erred too in the matter of rental accommodation. This is not an apartment in the general sense of the word. I am not free to rent this property to anyone at large; instead, it is designate as accommodation for farm staff. At the moment, my daughter, son-in-law and their children live in it and Tom, her husband, operates our farm for me. If we were to cease farming, this accommodation would cease being a residence, as the current restricted zone determines. Hence, the value of $20,000 for a rental property is grossly over-stated: it would require a farm operation of 10.5 acres on the wet, poorly drained land as described by Mr. Crozier, that was large enough to need live-in farm labour. Unless such a buyer were found, this second residential unit would cease to exist as a legally conforming entity.
d) Many of the improvements I have made to our house have been in response to the threats I have experienced here. In particular, the closed-in porches and additional room to the north of the log cabin have been designed and build to be air-tight, with opening windows for ventilation. They provide a measure of protection by adding a shell to our house and store, thus ensuring that we will always be safe in the event of a mor gas release from the BHWP. It seems unfair to be penalised twice for these exposures to toxic gas, first, when I was exposed and harmed, and second, when I made the best efforts I could afford to protect the safety and sanctity of our house, resulting in a higher assessed value.