The Rural Voice, 2000-03, Page 42Agrilaw
Agricultural disturbance versus the environment
By Paul G. Vogel
An agricultural operation produces
odours described as "putrid",
"pungent", "enough to make you
gag", "like rotting animal carcasses"
and "like rotting meat". As a result of
these odours, neighbours have
suffered vomiting and are unable to
use and enjoy their own properties.
There is no doubt that their
enjoyment of life has been
substantially diminished. The
technology exists which would totally
eliminate these odours. This
technology is being used at other
locations. Should the agricultural
producer be required to implement
this technology? Ontario's Normal
Farm Practices Protection Board says
"no".
In a recent case decided by the
Normal Farm Practices Protection
Board, the Board was required to
determine whether the production
processes of a mushroom substrate
co-operative which produced the
odours complained of by the
applicants merited protection as
"normal farm practice". Under the
provisions of the Farming and Food
Production Protection Act, any
person directly affected by a
disturbance from an agricultural
operation may apply to the board for
a determination as to whether the
disturbance results from a normal
farm practice. "Normal farm
practice" is defined in the Act to
mean a practice that:
"(a) is conducted in a manner
consistent with proper and
acceptable customs and standards
as established and followed by
similar agricultural operations
under similar circumstances; or,
(b) makes use of innovative
technology in a manner consistent
with proper advanced farm
management practices".
If the Board concludes that the
production process under
consideration constitutes a normal
farm practice, the application
attacking the production process must
be dismissed and the producer is
40 THE RURAL VOICE
granted protection from other court
action impugning the process or for
damages. On the other hand, if the
board concludes that the production
process is not a normal farm practice,
the Board may
require that the
process be
terminated or
modified to
conform with
normal farm
practice.
The evidence
in the case under
consideration bN
the Board
established that
the impugned
production
process involved
composting of straw, horse manure,
poultry manure, gypsum and water to
produce the mushroom substrate
which was then used by the
mushroom producers who owned the
facility to produce mushrooms. There
was no issue that this production
process created a disturbance for the
applicants who lived within the
1,000-1,200 feet from the production
facility. The odours complained of by
the applicants were created when the
oxygen supply within the composting
material was depleted, causing
"anaerobic reactions". The evidence
similarly established that use of
aerated floor technology would
dramatically reduce anaerobic
odours; aerated floors are commonly
used by composting operations within
Canada to reduce anaerobic odours;
and, that this technology is not novel
in industries other than mushroom
production. With respect to this
evidence, the Board concluded:
"...Ontario appears to be in a
situation where everyone agrees
that theaerated floor and biofilter
would be good technology for the
mushroom industry, but no one
appears to be ready to undertake
the expense associated with
aeration and biofilters until
somebody else successfully
Balancing
needs of
agriculture
and the
neighbours
undertakes the technology ... We
are satisfied that the use of this
technology would eliminate the
odour disturbance created by the
respondent's operation."
The Board also reviewed evidence
that there are mushroom production
facilities in Europe which utilize
aerated floor production and was
provided with a provincial regulation
from British Columbia mandating the
use of such alternative technology.
Facilities utilizing this technology
also exist in Alberta and Quebec.
Nevertheless, the Board determined
that "the use of aerated floors and
biofilters for mushroom production in
Ontario is at an experimental stage"
and that the technology being utilized
by the substrate producer co-
operative, while not "innovative
technology", did constitute "normal
farm practice". The Board stated:
"We conclude that the standard of
production has not yet changed
from conventional methods to the
aerated floor technology. The
preamble to the Act includes a
statement that normal farm
practices are to be promoted and
protected in a way that balances
the needs of the agricultural
community with provincial health,
safety and environmental .
concerns. The development of
aerated floor technology would
serve to meet that goal and it is
unfortunate that the mushroom
industry in Ontario appears to be
hesitant with regard to the
development of that technology.
It is our opinion that the method of
producing Phase I compost
utilized by the respondents is in
accordance with normal farm
practice as defined by the Act.
We conclude that anaerobic
odours do result from
conventional Phase I practices and
that the anaerobic odours are
consistent with normal farm
practice at this time".
While the Board did not consider
that its mandate included jurisdiction