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.
A) Nuisance
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%.
B) Pollution
1) ARB88-117
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%.
Summary
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.
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