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BCC Ruling No. 99-45-701

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-45-701

IN THE MATTER OF Subsection 24 (1) of the Building Code Act, 1992.

AND IN THE MATTER OF Sentences 8.2.1.6.(2) and 11.5.1.1.(1) of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99 and 278/99 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Ms. Nancy E. Clark and Mr. David A. Clark, property owners, Selby, Ontario, for the resolution of a dispute with Mr. David Cooke, Part VIII Coordinator, Kingston, Frontenac and Lennox and Addington Health Unit, Kingston, Ontario to determine whether the proposed replacement of a failed Class 4 sewage system to be sited near the existing location with less than 30 m to two dug wells is required to comply with Sentence 8.2.1.6.(2) of the Ontario Building Code (OBC), or may be permitted to comply with Sentence 11.5.1.1.(1) of the OBC at the Clark Residence, 2249 County Road 11, Selby, Ontario.

APPLICANT

Ms. Nancy E. Clark and Mr. David A. Clark
Property Owners
Selby, Ontario

RESPONDENT

Mr. David Cooke
Coordinator, Part VIII
Kingston, Frontenac and Lennox and Addington Health Unit

PANEL

Mr. Bryan Whitehead (Chair-Designate)
Mr. Bill Fellner
Mr. Frank Wright

PLACE

Toronto, Ontario

DATE OF HEARING

June 24, 1999

DATE OF RULING

June 24, 1999

APPEARANCES

Ms. Nancy E. Clark and Mr. David A. Clark
Property Owners
Selby, Ontario
The Applicants

Mr. David Cooke, Coordinator, Part VIII
Kingston, Frontenac and Lennox and Addington Health Unit
The Respondent

RULING

  1. The Applicant

Ms. Nancy E. Clark and Mr. David A. Clark, property owners, have applied for a building permit under the Building Code Act, 1992 to install a new, partially raised Class 4 sewage system as a replacement for their existing failed system at 2249 Country Road 11, Selby, Ontario.

  1. Description of Construction

The Applicants are proposing to install a new, partially raised Class 4 sewage system as a replacement for their existing failed system at their residence. The building is classified as having a Group C- (single detached dwelling unit) residential occupancy and is described as having 210 m2 of total finished area, 17.5 fixture units, three bedrooms and a total daily design flow of 1,700 L/d. No work is proposed for the dwelling itself.

The existing system is approximately forty to fifty years old and is composed of a 3,375 litre tank (750 gallons) septic tank connected to an unknown length and area of clay distribution pipe set in the native soil. The tank itself has been perforated and is currently being used as a makeshift holding facility, which requires a pump out every seven or eight days. The clay pipe leading from the tank to the bed was no longer functional. Regarding the distribution tiles, which is fed (or should fed) by gravity disposal, no information was provided.

The proposed new replacement sewage system is described as a partially raised Class 4 system with a sand filter bed. It consists of a 4,500 litre septic tank which transmits effluent by gravity to a nearby pump chamber, both of which will be located near the dwelling at the south end of the property. From there the effluent is to be pumped roughly 20 m to the distribution pipe, which is higher in elevation and located at the north end of the site.

The proposed filter bed will be partially raised by 0.3 m due to the high watertable found at 1.4 m below grade. The bed is to contain four runs of 76 mm diameter distribution pipe each 9.15 m in length for a total of 36.6 m. The pipes will be placed at 0.75 m on centre and all runs are to be connected with perpendicular pipe at both ends. The pipes are to be set in a 0.3 m thick layer of crushed stone ranging from 53 to 18 mm in size. The stone layer, measuring 3 by 10 m, will be separated from the raised covering material above by geotextile fabric or building paper. Below the stone layer will be a 0.75 m thick sand filter media composed of imported materials with an approximate T-time of 8 minutes per centimetre. The contact area of the sand filter bed will also be 30 m2 (3 by 10 m). The total depth of the entire filter bed will be 1.15 m below the existing grade.

The site measures approximately 22 m by 40 m, has a total area of roughly 880 m2 and is described as a "hamlet lot". It has a seven percent downward slope in a north to south direction. The native soil has a percolation rate in the range of 2.5 to 4 minutes per centimetre. The site is served by a dug well. The neighbouring property immediately to the east is served by a similarly constructed well which is situated roughly only 5 m away from the common lot line.

The issue regarding the failed sewage system and the decision to replace it arose after the Applicants recently bought the subject property. Upon occupancy they immediately discovered that the sewage system was not functioning. After inspection by the local health unit it was determined that the system had not worked for some time, and further, that their well was contaminated. While the well is generally down gradient of the leaching bed, it has not been conclusively determined through, for example, a dye test analysis that there is a causal link between the two. Nevertheless, they decided that the entire system urgently needed to be replaced.

The construction in dispute involves the proposed location of the new raised filter bed and its proximity to the two dug wells, approximately 26 and 21.5 m away on the Applicants' and neighbour's properties respectively. The location of the existing, failed tile field is not precisely known, however, it is most accurately described as being in the centre of the subject property, and despite the fact that the proposed filter bed location would be an improvement over the current situation, i.e., it would be farther away from the wells, due to the constricted lot size, the bed cannot be constructed at the distance required for new system installations. While it is known that the Applicants' well is contaminated (they have been drinking bottled water since they discovered the problem), the water quality of the neighbour's well has not been determined since he is not interested in having it tested.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the new Class 4 sewage system, specifically the sand filter bed, proposed as a replacement for the existing failed system is required to comply with Sentence 8.2.1.6.(2), or may be permitted to comply with Sentence 11.5.1.1.(1) as it refers to Table 11.5.1.1.C. and Compliance Alternative C84.1 of the Ontario Building Code. Sentence 8.2.1.6.(2) of the OBC sets out the requirements for, among other things, the minimum clearance distances between distribution piping (Table 8.2.1.6.B.) and dug wells such as the two in dispute. Table 8.2.1.6.B. stipulates that 30 m is the required distance in this instance. Germane to the subject dispute is the fact that Part 8, as with most other parts of the Code, deals with the standards for new construction.

Sentence 11.5.1.1.(1), on the other hand, states that a compliance alternative may be substituted for the new construction standards found in various parts of the Code, including Part 8, if the Chief Building Official is satisfied that, as is possible in this case, there is a "construction difficulty". The compliance alternative relevant to this dispute is C84.1, which allows the existing clearances to be maintained if the proposed sewage system is the same class as the existing system and if the replacement system does not exceed the capacity of the old system. Sentence 11.5.1.1.(1), as is the case with all of Part 11, deals with construction undertaken on an existing building or sewage system and is intended to provide reasonable standards considering that much of the intended overall construction for the site is already in place.

The Applicants' proposed sand filter bed, although farther away than the existing leaching bed, will still be only 26 m from their well and 21.5 m from the neighbour's well. They applied for a permit for their replacement system on the basis that this lack of clearance distance constitutes a "construction difficulty" as per Sentence 11.5.1.1.(1). Their application was turned down by the Health Unit because they lacked the adequate setbacks to the subject wells. Neither party raised nor disputed the requirements of Article 8.9.1.2. which prohibits effluent impact on ground water and wells.

  1. Provisions of the Ontario Building Code

Sentence 8.2.1.6.(2) Clearances for a Class 4 or 5 Sewage System

(2) Except as provided in Sentences 8.2.1.4.(1) and (2), a distribution pipe shall not be located closer than the minimum horizontal distances set out in Table 8.2.1.6.B. and these distances shall be increased when required by Sentence 8.7.4.2.(9).

Sentence 11.5.1.1.(1) Compliance Alternatives

(1) A compliance alternative shown in Tables 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 3, 4, 5, 6, 7 or 8 where the chief building official is satisfied that compliance with the requirement is impracticable because,

(a) of structural or construction difficulties, or
(b) it is detrimental to the preservation of a heritage building.

  1. Applicant's Position

The Applicants submitted that their proposed Class 4 sewage system, as a replacement system, should be allowed to utilize the existing setbacks to the wells under Part 11. They noted that Sentence 11.5.1.1.(1), specifically compliance alternative C84.1, states that existing clearances are acceptable where a sewage system is replaced with another system in the same class and the capacity (as in daily design sewage flow) of the replacement system is also the same.

The Applicants argued that they comply with both of these conditions. In fact, their replacement system will improve the performance level over the current one. Moreover, since no work is proposed for the building, the capacity of the new system will be the same. (They noted the recently approved Ontario Regulation 278/99 clarifies that the "capacity" of a sewage system is determined by calculating the daily design sewage flow.) As a result, the Applicants stated that, in their view, due to their construction difficulty related to setbacks on their property, the Respondent should have authorized the use of compliance alternative C84.1, as per Sentence 11.5.1.1.(1).

The Applicants noted that there are numerous ways that their proposed system will be a major improvement over their existing sewage system. To start with, they are proposing to install a larger septic tank equipped with an effluent filter in the outlet baffle. Together these improvements will be better able to begin the process of separation and allow for greater bacterial action. They are also proposing to construct a sand filter media bed where none existed prior. As well, most importantly, they intend to locate the filter bed farther from the wells than the existing leaching bed.

The Applicants admitted that the quality of the well water was an issue. However, they rejected the Respondent's argument that their own consultant warned them that all affected wells be abandoned. The only well of which work was contemplated and discussed with their consultant was their well, and replacing it with a cased well 6 m deep or more was considered only as an additional safety measure. They stressed that their consultant never indicated to them, as it seemed the Respondent was alleging, that their proposed replacement system would not be possible due to the lack of available clearance distance. In fact, they argued that his advice was exactly the opposite - that their proposal should be allowed under Part 11.

The Applicants also recognized that the impact of the replacement system would be felt by their neighbours as well. Nevertheless, they indicated that their neighbours concurred with their plans and agreed that their proposal would improve the current situation. To this end, they produced letters of support from both of their neighbours immediately adjacent to their property.

Lastly, the Applicants commented that Part 11, in their view, was intended precisely for people in circumstances as they now found themselves. They noted that Eastern Ontario especially has many smaller rural or village/hamlet lots that are serviced by old, ineffective sewage systems. Without recourse to Part 11, they argued, many of these lots could be rendered useless. They expressed hope that the Building Code Commission would consider this in their deliberations. Finally, they reiterated their view that their proposal should be accepted with reduced setbacks under Part 11.

  1. Respondent's Position

The Respondent submitted that he considers the Applicants' proposal to be a new sewage system installation. Accordingly, he indicated that all minimum clearance distances, including those to the subject wells, must be complied with. He based this view on Article 11.1.1.2. which classifies a sewage system as a building system, and on Article 11.3.1.2. which, as he argued, requires a new building system to comply with "all other Parts of the Code", including Part 8.

To support his view that the proposed system should be considered new, the Respondent described the aspects of the system that are new or different than the existing one. He noted, for example, that the septic tank will be larger and that it is to be equipped with an effluent filter. The pump, necessary to transmit effluent to the raised bed, is also a new feature of this system. As well, the bed itself is completely different - it will be raised and will be composed of new materials imported to the site as the filter media. Even all the distribution pipe is new in the Applicants' proposal. Thus, since none of the current system is being reused, relocated or extended the proposal cannot be considered a basic renovation, the Respondent argued. Further, although technically within the same class system many upgrades and modifications have been proposed, therefore he asserted that this must be viewed as an entirely new system.

The Respondent rejected the idea that compliance alternative C84.1 should be used in this case. The quality of not only the Applicants' well water but also that of their neighbour's was his chief concern and the main reason the application was refused. It is precisely for reasons such as this in an existing situation, he argued, that Sentence 11.5.1.1.(1) allows compliance alternatives to be used only when "the chief building official is satisfied that compliance with the requirement (in this case Table 8.2.1.6.B.) is impractical..." Moreover, the Respondent stated that he does not believe that a lack of clearances constitutes a construction difficulty as intended in OBC 11.5.1.1.(1). Even if he was to allow the Applicants' their requested relaxation which may pollute their well, he indicated that he viewed it as his duty to protect the neighbour's well. In fact, he argued that Part 11 should not be available in circumstances where contamination of another property is a likely hazard.

The Respondent also argued that even if the Commission were to approve the subject proposal based on part 11, other provisions in the Code specifically do not allow contamination of a well. While he acknowledged these provisions (Article 8.9.1.2.) regulate on-going operational concerns and therefore may not apply to the subject dispute, he indicated that when, or if, the proposed sewage system is constructed and if contamination is linked to the system he would possibly rely upon such powers in the future. To avoid this situation, the Respondent indicated that he would be satisfied with the present proposal if a tertiary treatment unit were added or a cased well greater than 6 m deep was built (as the consultant recommended). This, he noted, would protect both wells and would resolve the situation now.

Lastly, the Respondent conceded that the proposal is "a significant improvement over the existing system and it is in the best interests of all parties to install a new system." Nevertheless, without the minimum clearance distances he believes the potential risk of contaminating the wells is too high. He does not believe the mandate or intent of the OBC or the Building Code Act is to knowingly allow this.

  1. Commission Ruling

It is the decision of the Building Code Commission that the compliance alternative shown in Table 11.5.1.1.C. (C84.1) may be substituted for the requirement contained in Article 8.2.1.4. with respect to the proposed replacement filter bed.

  1. Reasons

i) There is an existing septic system which could be repaired under the Code.

ii) The distribution pipes in the proposed filter bed are no closer to the existing dug well on the subject property and adjacent lots than the existing distribution pipe to the existing leaching bed.

iii) The proposed performance level of the proposed sewage system exceeds the performance level of the existing system if it were operating properly.

Dated at Toronto this 24th day in the month of June in the year 1999 for application number 1999-47

Mr. Bryan Whitehead, Chair-Designate

Mr. Bill Fellner

Mr. Frank Wright