EBRO File No: 16EBR005.I Hanmer, ON)

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1 Environmental Bill of Rights (EBR) Applications for Investigation Alleged Contraventions of the Ontario Water Resources Act (OWRA) and Regulation 903 (Wells Regulation) Decision Summary EBRO File No: 16EBR005.I Hanmer, ON) 16EBR006.I Hanmer, ON) Issue: The applicants have requested the Ministry of the Environment and Climate Change to undertake an Environmental Bill of Rights (EBR) investigation of alleged contraventions under the Ontario Water Resources Act and Regulation 903, made under the Ontario Water Resources Act, by two separate residential land owners, residing at Hanmer. Review Recommendations: Ministry staff have completed an assessment of the applications for an investigation. After careful consideration of the information available, in accordance with subsections 77 (1) and (3) and clause 77 (2) (c) of the EBR, the Assistant Deputy Minister, Drinking Water Management Division (ADM) has concluded that an EBR investigation of the alleged legislative contraventions by the residential land owners is not warranted. Ministry staff are already aware of the alleged contraventions in the Applications and have been actively looking into ( investigating ) these matters and working with the land owners to resolve any non-compliance issues. Further investigation would duplicate ongoing and/or completed investigation activities. Summary of the Requests (A) Application 16ERB005.I ( Basement Well) The Application alleges the property owners of Hanmer are in contravention of sections 36, 39, and 43 of the Ontario Water Resources Act (OWRA) and sections 12 and 20 of Regulation 903 (Wells) made under the OWRA (Wells Regulation). The Application alleges contraventions relating to a well located in the basement of the residence, including: 1. Section 36, OWRA Permit required to construct well in designated area 2. Section 39, OWRA Well contractor licence required 3. Section 43, OWRA Construction of wells by a licenced well technician 4. Section 12, Regulation 903 Location of Wells 5. Section 20, Regulation 903 Well Maintenance The applicants allege that the drilled well on the cited residential property is in contravention of the noted legislation because of the following: No well record could be found for the well; The location of the well;

2 The methods and materials used in the construction of the well; and, The standards of the well construction. For these reasons the applicants allege that the basement well is a risk to the groundwater source. (B) Application 16ERB006.I Dug Well) The Application alleges the residential property owners of Hanmer are in contravention of sections 36, 39, and 43 of the Ontario Water Resources Act (OWRA) and sections 12, 20 and 21 of Regulation 903 (Wells) made under the OWRA (Wells Regulation). The Application alleges contraventions relating to a dug well located on the property, including: 1. Section 36, OWRA Permit required to construct well in designated area 2. Section 39, OWRA Well contractor licence required 3. Section 43, OWRA Construction of wells by a licenced well technician 4. Section 12, Regulation 903 Location of Wells 5. Section 20, Regulation 903 Well Maintenance 6. Section 21, Regulation 903 Well Abandonment The applicants allege that the well on the cited residential property is in contravention of the noted legislation because of the following: The well is a dug well that has not been properly abandoned; The well is no longer maintained for use as a well; The location of the well; The well presents a physical risk and a pathway for surface contamination to enter the well and the groundwater; The standards of the well construction have not been followed; and, The well owner has not taken immediate steps to rectify the situation. For these reasons the applicants allege that the dug well is a risk to the groundwater source. Chronology and Actions Taken in Previous Investigations (A) Application 16ERB005.I Basement Well) On December 21, 2015 Sudbury Safe Drinking Water Branch (SDWB) staff received a call from the applicant indicating that he had been informed that there was an untagged well in the basement of the home at, a property located adjacent to his. He further indicated that the owners were out of the country for an extended period. He was told that the Sudbury SDWB would follow up with the well owners when they returned. The applicants in this matter had previously applied to the Sudbury and District Health Unit for a permit to upgrade their unapproved septic system. The permit could not be issued due to inadequate separation distances to wells on adjacent properties.

3 On May 10, 2016, Sudbury SDWB staff met with the owner of the well at The well owner indicated that his well, located in the basement of his house, was drilled by a well driller as his house was being constructed. He could not remember the name of the driller and was never provided with a Well Record. He further indicated that the well was a drilled bedrock well installed about 20 years ago (around 1995) and is about 200 feet deep. The property owner offered access to the well and it was noted that the well appeared to be a 6 inch diameter drilled well. It was further noted that although the well was in the basement, access to the well was available through a large window directly adjacent to the well. The well is currently in use by the property owner, and is being maintained to prevent the entry of surface water and other foreign material into the well. No significant issues with this well were noted. A search was done of the MOECC Wells Database and no Well Record could be located for this well. After consultation with MOECC Technical Support staff with expertise on wells, it was concluded by Sudbury SDWB staff that no further action would be taken on this matter. The well was being properly maintained, and the legal obligation to provide a Well Record to the MOECC is a requirement placed on the well driller under Regulation 903, and not the owner of the well. (B) Application 16ERB006.I Dug Well) The applicants in this matter were first in contact with the Wells Helpdesk on June 3, 2015, and the Sudbury SDWB on June 4, It was identified by the applicant that they had applied to the Sudbury and District Health Unit for a permit to upgrade their unapproved septic system. The permit could not be issued due to inadequate separation distances to an existing dug well on the neighbouring property at. Sudbury SDWB staff conducted a site visit on June 11, 2015 to meet with the applicants and conduct an assessment of the well at The owners of the well were not home at the time of the site visit. A visual assessment of the exterior components of the well suggested that it was likely a dug well that had been in place for an extensive period of time, and that it was not being maintained to prevent the entry of surface water and other foreign materials. Sudbury SDWB staff made contact with the well owner at on June 18, The owner indicated that based on information from previous owners, the well is a dug well installed around He further indicated that although they have not used the well, they want to keep it for possible use due to concerns about blue green algae in their current surface water source. The owner was advised that in order to keep the well for future use, it must be maintained to prevent the entry of surface water and other foreign material. Sudbury SDWB asked for confirmation from the owner by July 10, 2015 regarding their intentions to either abandon the well, or rehabilitate and maintain for future use as a well. Sudbury SDWB received a letter from the well owners on July 10, 2015 indicating that it is their intention to rehabilitate and maintain the well for future use. A response was sent to the owner from Sudbury SDWB via on July 20, 2015 outlining the requirements

4 for rehabilitation and maintenance of the well for future use. A deadline of September 18, 2015 was set. On September 15, 2015, a letter was received by Sudbury SDWB from the owners of the well asking for an extension to their compliance deadline due to extenuating personal circumstances. Sudbury SDWB staff agreed to extend the compliance deadline until spring; however, the owners were advised that a Provincial Officer s Order would be issued with a specific deadline. From June 2015 through to December 2015, Sudbury SDWB staff had not less than 10 telephone conversations with the applicants, 2 telephone conversations and numerous s with legal council for the applicants, and 2 conversations with MPP France Gelina s office calling on behalf of the applicants. These parties were advised on all occasions that the MOECC cannot force a property owner to abandon a well without cause if they wish to maintain the well for future use as a well. They were also advised that Sudbury SDWB staff will continue to work with the owner of the well to ensure that it is rehabilitated and maintained to prevent the entry of surface water or other foreign material, in accordance with Regulation 903. A Provincial Officer s Order #0372-A5VLBR was issued on January 6, 2016 requiring the owners of the dug well at to either abandon the well, or rehabilitate and upgrade the well to prevent the entry of surface water or other foreign material. A compliance date of June 3, 2016 was prescribed. From January 2016 to July 2016, not less than 6 conversations between the Sudbury SDWB and an Early Resolution Officer with the Office of the Ombudsman of Ontario took place. A complaint had been filed alleging that action had not been taken to address the issue of the dug well at, Hanmer. It was explained that Sudbury SDWB staff are working with the owners of the dug well to ensure that it is either upgraded and maintained for future use as a well, or abandoned in accordance with Regulation 903, and that the MOECC cannot force a well owner to abandon a well without cause if they wish to maintain it for future use as a well. It was also indicated that we have given them until spring to complete the work at the request of the well owners, who were dealing with some significant mitigating personal issues, and that Provincial Officer s Order #0372-A5VLBR had been issued prescribing a compliance date of June 3, On May 10, 2016, Sudbury SDWB conducted a site visit with the owners of the dug well at During this meeting, the owners re-confirmed their intention to maintain the well for future use due to concerns that their surface water source may become compromised due to Blue Green Algae. The requirements for rehabilitation and maintenance for future use were reviewed with the well owners to ensure that they understood their obligations under Regulation 903. A visual assessment of the well was conducted and it was noted that improvements had been made. Outstanding work to be completed was discussed. On June 1, 2016, Sudbury SDWB staff received an from the owners of the dug well indicating that they had suffered another personal set-back, but that it was still their intention to complete the work on the well as soon as possible so that they can maintain it for future use.

5 On June 28, 2016, Sudbury SDWB staff attended to assess compliance with Provincial Officer s Order #0372-A5VLBR. It was noted that the work to rehabilitate and maintain the well for future use as a well, was substantially complete, and it was stated by the well owners that outstanding work will be completed once the co-owner recovered from a significant injury. On June 29, 2016, Sudbury SDWB staff received a letter from the owners of the dug well at outlining the rehabilitation work that has been completed on the well, the ongoing maintenance work that is still outstanding, and the reasons for their decision to maintain the well for future use as a well. On July 8, 2016, Sudbury SDWB staff received an from the Office of the Ombudsman of Ontario indicating that it had closed the file on this matter. Sudbury SDWB staff will continue to follow up with the well owners at to ensure that all outstanding work is completed in order to properly maintain the well for future use as a well and, that the work is in accordance with Regulation 903. (A) Recommendations on Alleged Contraventions in the Application 16EBR005.I (, Hanmer): Staff from the ministry have reviewed the allegations in the request relating to the residential property owners of a drilled basement well at Hanmer and have determined the following: 1. Alleged contravention of section 36 of the Ontario Water Resources Act (Permit required to construct well in designated area) Section 36 of the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 prescribes that no person shall construct a well in an area designated by the regulations except under and in accordance with a well construction permit issued by a Director. The regulations, e.g., [R.R.O. 1990, Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40] have not created designated areas and, as such, the designated Director cannot issue a well construction permit. This section has never been used. Instead of designating areas and issuing well construction permits, the current Ministry policy relies on licensing persons and contractors to work at the construction of wells and having minimum requirements to construct, maintain, abandon and report on wells. This is not a section of the OWRA that can be contravened; therefore, an investigation is not applicable. Under clause 77 (2) (c) of the Environmental Bill of Rights, the Minister is not required to investigate an alleged contravention which is not likely to cause harm to the environment. 2. Alleged contravention of section 39 of the Ontario Water Resources Act (Well contractor licence required) In the version of the Ontario Water Resources Act in effect when this well was allegedly installed (circa 1995), the requirement for a well contractor licence was prescribed in section 39

6 of the Act. However, this section of the legislation applies to persons engaging in a well construction business. This does not apply to the well owner as he is not establishing a business to construct wells. Under clause 77 (2) (c) of the Environmental Bill of Rights, the Minister is not required to investigate an alleged contravention which is not likely to cause harm to the environment. 3. Alleged contravention of section 43 of the Ontario Water Resources Act (Well technician) The version of the Ontario Water Resources Act effective when this well was allegedly installed (circa 1995) also included the requirement for a well technician (section 43). However, the property owners are individual residential land owners and can complete all work on the well themselves, with help, as long as no remuneration is being provided for any assistance. This is allowed by subsection 43(3) of the OWRA where it is stated that Subsection 43(1) does not apply to a person who works at the construction of a well on land owned by the person or by a member of the person s household; or to a person who works without remuneration for another person at the construction of a well on land owned by the other person or by a member of the other person s household. Under clause 77 (2) (c) of the Environmental Bill of Rights, the Minister is not required to investigate an alleged contravention which is not likely to cause harm to the environment. 4. Alleged contravention of section 12 of Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (Location of Wells) The un-amended version of Regulation 903 (Wells), which was valid when this well was allegedly installed, also includes, in section 12, requirements for locating a new well. However, there is no evidence to suggest that the well was installed in contravention of the requirements of the regulation. There is no evidence to indicate that the well was placed in the home after construction of the home was completed, and it was reported that the home was constructed on top of the existing well. The current and previous versions of Regulation 903 do not prevent a structure from being placed over an existing well. No Well Record could be located for this well. It is the responsibility of the well driller to submit the Well Record to the MOECC. 5. Alleged contravention of section 20 of Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (Maintenance) There was no evidence to indicate that the well was not being properly maintained by the owner. The well is currently in use and it was confirmed through a site visit that the well is being maintained to prevent entry of surface water or other foreign materials.

7 (B) Recommendations on Alleged Contraventions in the Application 16EBR005.I ( ): Staff from the ministry have reviewed the allegations in the request relating to the residential property owners of a dug well located at Hanmer and have determined the following: 1. Alleged contravention of section 36 of the Ontario Water Resources Act (Permit required to construct well in designated area) Section 36 of the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 prescribes that no person shall construct a well in an area designated by the regulations except under and in accordance with a well construction permit issued by a Director. The regulations, e.g., [R.R.O. 1990, Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40] have not created designated areas and, as such, the designated Director cannot issue a well construction permit. This section has never been used. Instead of designating areas and issuing well construction permits, the current Ministry policy relies on licensing persons and contractors to work at the construction of wells and having minimum requirements to construct, maintain, abandon and report on wells. This is not a section of the OWRA that can be contravened; therefore, an investigation is not applicable. Under clause 77 (2) (c) of the Environmental Bill of Rights, the Minister is not required to investigate an alleged contravention which is not likely to cause harm to the environment. 2. Alleged contravention of section 39 of the Ontario Water Resources Act (Well contractor licence required) Prior to 1972, the Ontario Water Resources Act did not exist. The predecessor to this act was the Ontario Water Resources Commission Act, which was promulgated in the 1950s to support the restoration of polluted waters, through, in part, the construction of sewage treatment and water supply plants. The Wells Regulation enacted under this Act in 1961 (O. Reg. 212/61 Water Wells), prescribed requirements for licences to drill and bore wells. However, no requirements were stipulated for dug wells. The requirements of the current regulation cannot be applied retroactively. As further clarification on this issue, the current version of this section of the OWRA referenced by the applicants applies to persons engaging in a well construction business, and does not

8 prohibit a property owner from repairing/rehabilitating their own well, as long as they are not establishing a business to construct wells. Under clause 77 (2) (c) of the Environmental Bill of Rights, the Minister is not required to investigate an alleged contravention which is not likely to cause harm to the environment. 3. Alleged contravention of section 43 of the Ontario Water Resources Act (Well technician) Prior to 1972, the Ontario Water Resources Act did not exist. The predecessor to this act was the Ontario Water Resources Commission Act, which was promulgated in the 1950s to support the restoration of polluted waters, through, in part, the construction of sewage treatment and water supply plants. The Wells Regulation enacted under this Act in 1961 (O. Reg. 212/61 Water Wells), prescribed requirements for licences to drill and bore wells. However, no requirements were stipulated for dug wells. The requirements of the current version of the regulation cannot be applied retroactively. As further clarification on this issue, in the current version of the OWRA, subsection 43(3) states that subsection 43(1) does not apply to a person who works at the construction of a well on land owned by the person or by a member of the person s household; or to a person who works without remuneration for another person at the construction of a well on land owned by the other person or by a member of the other person s household. The property owners in this matter are individual residential land owners and are completing all work on the well themselves, with the help of some neighbours. No remuneration is being provided to the neighbours for their assistance. 4. Alleged contravention of section 12 of Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (Location of Wells) This section of the regulation applies to the construction of new wells and does not apply to wells constructed prior to the promulgation of the current version of the regulation. The binding regulation in place at the time when this well was reportedly installed (circa 1966), was O. Reg. 212/61 Water Wells, under the Ontario Water Resources Commission Act. There were no construction requirements for dug wells in the regulation at that time. The well construction requirements in the current version of the regulation cannot be applied retroactively. Further, Section 12 of the current Wells Regulation does not apply to a person who undertakes an alteration or an extension to an existing well.

9 5. Alleged contravention of section 20 of Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (Maintenance) The well owners were made aware of their responsibilities with regards to maintenance of the well as per the regulatory requirements. Provincial Officer s Order #0372-A5VLBR was issued, and is substantially complied with. The Sudbury SDWB will continue to monitor this issue until all required work is completed. The owners are aware of the maintenance requirements outlined Regulation 903, and intend to continue to maintain the well for future use. 6. Alleged contravention of section 21 of Regulation 903 (Wells) as amended made under the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (Abandonment) The well was reportedly constructed in the mid-1960s. Therefore, the well siting requirements of the current Wells Regulation do not apply. The binding regulation in place at the time when this well was reportedly installed (circa 1966), was O. Reg. 212/61 Water Wells, made under the Ontario Water Resources Commission Act. There were no requirements in the regulation for dug wells with regards to construction, and separation distances were not addressed by the regulation. Further, it is believed that the well was in place prior to the installation of the private (deeded right-of-way) access road (reportedly installed in about 2000) and the installation of the neighbour s unapproved septic system (installed in about 2005). Although the well has not been used since about 2005 (according to the current owner), the well owner plans to maintain the well for future use. Subsection 21(3) of the Wells Regulation allows a well owner to use a well that is currently not in use as long as it is being properly maintained as a well for future use. Under Provincial Officer s Order #0372-A5VLBR, the well owner has substantially completed all required work. The SDWB will continue to monitor this issue until all work is completed. The owners are aware of the maintenance requirements outlined in Regulation 903, and intend to continue to maintain the well for future use. In this situation, the Ministry does not have justification to compel the well owner to abandon the well.

10 Conclusion The information which was provided in support of these two applications noted above has been carefully considered. Having completed an assessment of the Applications for Investigation, it was concluded that an EBR investigation of the residential land owners cited in the applications is (i) not warranted and would duplicate an ongoing and/or completed investigations; or (ii) the alleged contraventions are not likely to cause harm to the environment. As a result, both Applications for Investigation are denied.