Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Schouten v Ontario Ministry of Agriculture, Food, and Rural Affairs
Schouten v OMAFRA 1998 ONAFRAAT 11
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
February 17, 1998
February 25, 1998
1998-11
NEUTRAL CITATION:
1998 ONAFRAAT 11
Schouten v Ontario Ministry of Agriculture, Food, and Rural Affairs
IN THE MATTER OF THE FARM PRODUCTS MARKETING ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.
AND IN THE MATTER OF:
An appeal to the Farm Products Appeal Tribunal by Arnold and Adrian Schouten from the decision of the Director, Resources and Planning Branch, dated September 22, 1997, not to cancel the February 5, 1997 milk sample test results for which they were penalized for having a freezing point of -0.522 degrees Hortvet (-0.522oH.).
Before:
Jim Rickard, Chair; Anna Andres, Member; Moira Connell, Member; Gertrude Levac, Member.
Appearances:
Mr. Adrian Schouten and Mr. Arnold Schouten, appellants.
Ms. René Hubers, on behalf of the Respondent, the Director, Resources and Planning Branch, Ministry of Agriculture Food and Rural Affairs.
DECISION OF THE TRIBUNAL
This appeal was heard in Kemptville, Ontario, on February 17, 1998. Arnold and Adrian Schouten appealed to the Farm Products Appeal Tribunal (the Tribunal) from a decision of the Director, Resources and Regulations Branch (the Branch) dated September 22, 1997, not to cancel the February 5, 1997 milk sample test results for which they were penalized for having a freezing point of -0.522oH.
The Background
Under the regulations of the Milk Act the milk of any producer may be tested at any time for freezing point. If milk freezes at a temperature warmer than -0.524o H a penalty is applied. The penalty for the first offense is $2 per hectoliter for all milk shipped during the month the offense occurred. For a second offense the penalty is $4 per hectoliter, third is $6 per hectoliter and fourth is $8 per hectoliter and refusal of the DFO to market milk from the offending premises.
The official test for freezing point is done on a Cryoscope.
A & A Schouten presently milk over 300 cows housed in a large naturally ventilated free stall barn. The cows are milked in a double 18, parallel parlor. The parlor is a Boumatic with automatic take-offs. The milk recording jars are located in equipment rooms on each side of the parlor and below where the cows stand. The milk pipelines bring the milk to the equipment room closest to the bulk tank. The milk flows into a receiver jar and from there it is pumped into the bulk tank through the milk filter and pre-cooler using two milk pumps and approximately 30 feet of 1.5 inch stainless steel milk pipeline.
The bulk tank is located in a separate room beside the parlor. It is an 8,000 gallon tank approximately eight feet in diameter and 24 feet long.
The cows are milked at 4:30 a.m., 12:30 p.m. and 8:30 p.m. Hired labor is used to milk the cows. There is only one operator in the parlor when the cows are being milked. The cows are pre-dipped, wiped dry, milked and then post-dipped. The pre and post dip is sprayed onto the cows udders. It takes one operator approximately 3.5 hours to milk the cows. Treated and fresh cows are housed separately from the main herd and are milked last. Fresh and treated cows are milked into floor buckets while the remainder are milked into the parlor pipeline. The milking equipment and pipeline are washed after each milking.
The pipeline is washed manually using as cold rinse, a hot wash and a cold rinse. The wash sink is filled with water at the beginning of the wash cycle. Part of this water is used to rinse the pipeline and then it is dumped to the manure storage. Soap is added manually to the remaining water in the sink and the pipeline is washed. This water is dumped to the drain and water is added to the sink and the pipeline is rinsed. This water is then dumped to the manure storage.
The bulk tank is washed automatically and is started by the bulk tank milk grader.
Since the bulk tank is larger than the milk truck, special pickup procedures are needed. The producer is picked up every day. For one pick up there are two milkings in the tank (approximately 6,500 liters), for the other pick up there are four milkings in the tank (approximately 13,000 liters). The milk sample is taken with a dipper. To reach the milk when there is 6,500 liters in the tank an extension has to be clamped onto the handle of the dipper making the dipper about 60 inches long. The length of the dipper handle and the size of the bulk tank make sampling awkward.
On February 5th, 1997 a sample of milk was taken from the tank when it had approximately 6,500 liters of milk. The dipper was about 60 inches long. This sample was screen tested at the laboratory for freezing point and identified as a possible problem. The sample was tested on the Cryoscope and the test result indicated a freezing point of -0.522o H. The sample was re-tested on a second Cryoscope and found to freeze at -0.521oH.
This test result is now appealed to the Tribunal by the Schoutens.
The Issue
Does the freezing point test of -0.522 o H on the sample of milk represent the quality of milk shipped from the Schouten premises on February 5th, 1997 and should this test result be allowed to stand?
The Evidence and the Findings
Arnold Schouten told the Tribunal that he and Adrian were appealing the test result because the milk leaving their farm did not contain any added water. He pointed out that the production during the time period was very consistent. He showed the Tribunal the detailed written instructions that are used to train all the people who milk on the farm. Arnold said that they are over-quota and have been ever since they moved into their new facilities three years ago. He said there is no economic sense to add water to their milk to increase the volume shipped. Payment for milk is based on components not the volume shipped. He went over the freezing point records produced by the Branch over 1996 and early 1997. Several times the milk tested in the gray or warning area but just once got to the penalty level. He said there was no way that water could be added that many times without someone on the farm knowing about it. This is not just one particular incident.
Mr. Schouten told the Tribunal that he suspects there is a problem with the sampling dipper. The dipper is stored in the wash sink and is awkward to handle. He noted that the problem with warm freezing point tests had disappeared since the penalty was applied and the situation discussed with all parties involved in the milking and sampling procedures.
Mr. Schouten told the Tribunal that they were disappointed with the testing system as a whole. He said that many times during 1996 and early 1997 their milk was in the warning area for freezing point tests but no notification was received from the Branch. He pointed out that the test was on February 5th and they were not notified until February 15th. They shipped a lot of milk in the interval between the test and notification and that was unacceptable if they had a problem with their equipment and water was being added.
Paul Barber, one of the people who performs the milking duties at the Schouten farm, explained to the Tribunal the procedures followed for washing the equipment when milking is completed. He said there were five steps that had to be completed before washing began. He also said that the wash pump will not start if the milk pipe is in the bulk tank. He said there is no way to accidentally run the rinse water or wash water into the bulk tank.
Mr. Barber told the Tribunal that the dipper sits in the sink. He has seen occasions where the bulk tank milk grader takes the dipper, hoses it down and then uses it to take a sample when it is wet from top to bottom before the sample is taken.
Mr. Barber said it takes about 150 liters of water to complete a wash of the pipeline.
Mr. Schouten told the Tribunal that, if the equipment is left in the milking position and water is put in the sink, it is possible to suck water into the pipes to chase the milk out of the pipeline. He said that is a function of the equipment and can be done on any milking system. He pointed out that a review of the test results would indicate that this was happening quite often if this was the source of the warm freezing point tests. He told the Tribunal, that it is not the practice on the farm and he does not believe his staff are doing this contrary to instructions.
Adrian Schouten said that the Branch had informed them that to raise the freezing point temperature from -0.540 o H to -0.522 o H, they would have to have about 3% water in the milk. On 6,800 liters of milk that would be 204 liters of water. That is a lot of water and should be reflected in changes in the volume of milk shipped from the farm. He provided the “two day” shipment volumes for the period in question which indicate the volumes are relatively consistent. The volumes are:
February 3 19,118 liters.
February 5 19,122 liters.
February 7 19,064 liters.
February 9 19,206 liters.
February 11 19,326 liters.
February 13 19,706 liters.
February 15 19,557 liters.
February 17 20,035 liters.
February 19 20,021 liters.
He argued that, if water is being added to the extent claimed by the Branch, the volumes should fluctuate more than they do, or more of the samples should have unacceptable high freezing points.
René Hubers, speaking on behalf of the Branch, told the Tribunal that there were changes made in the way samples were tested for freezing point at the laboratory. In March of 1996 the laboratory changed the equipment used to test for composition. Prior to that time all samples were heated in a water bath. These samples could not be tested for freezing point because there was a possibility the sample had some water added during the heating process. Different samples had to be tested for freezing point and composition. The new equipment is a Foss 4000 that does not use water to heat the sample. Using this equipment, estimated freezing points are calculated from measurements made on the sample. This allows the technician to screen the sample for possible contravention of the freezing point regulation. The reliability of the calculation was not known so the Ministry and the DFO staff decided to start screening the milk samples using the equipment and see what data the procedure gave. These results were not reported to the producer but were used to screen samples for testing on the official Cryoscope testing machine. She pointed out that the official test and procedures of the official test have not changed in this process. However, the screening done with the Foss 4000 has allowed the technicians to concentrate on the suspect samples and increase the frequency of the test for freezing. She said that freezing point testing is labor intensive and therefore was not done as frequently in the past as it currently is being done. In fact, she said some producers could go for a period of years without having an official freezing point test on their milk. The samples are now screen tested four times a month.
Ms. Hubers told the Tribunal that the number of freezing point penalties has increased significantly since the change in procedures. The penalty test results are:
1993 96 penalties assessed.
1994 180 penalties.
1995 89 penalties.
1996 318 penalties, of which 176 occurred after October 1.
1997 415 penalties.
Ms. Hubers said that, in August 1996, the laboratory switched officially to the Foss 4000 testing equipment and started to calculate estimates of freezing points. Now that the test data is available, the scientists at the laboratory are confident in the ability of the Foss 4000 to produce the data necessary to calculate an accurate freezing point estimate. She said that milk freezes at -0.540oH so the closer the test gets to -0.540oH the more normal the milk is. If the sample freezes at temperatures warmer than -0.540oH it indicates more water than normal is in the milk. She said that the freezing point is an indication of a problem on the farm. It is not necessarily added water but in excess of the average milk composition water. Ms. Hubers identified several possible sources of the excess water such as:
Improperly sloped pipelines - allowing puddling of wash water.
Flushing milk through the pipeline with water when the milk pipe is still in the bulk tank.
Bypassing safety switches.
Freezing in the bulk tank. If freezing occurs in the tank and if a small crystal of ice gets into the sample it can affect the test results.
Improper sanitizing procedures. If the pipeline is sanitized before milking and not enough time is provided for it to drain before milking starts.
In rare cases, the feed can cause difficulties.
Ms. Hubers told the tribunal that Mr. Harold Cuthbertson, milk quality advisor for the Branch, had conducted a study of the sampling results from the drivers that pick up milk at the Schouten farm as well as a test on the dipper used to take milk samples from the bulk tank.
Mr. Cuthbertson had analyzed the estimated freezing point for samples taken by the different drivers and found no significant difference in the test results on the samples. He also compared the estimated freezing point results from the Schouten farm with the results from another farm that the same drivers sampled using a dipper provided at the second farm. There is no significant difference in the results from the two farms. He concluded that the drivers were taking the samples consistently.
He personally took a series of samples with the dipper. He washed the dipper and carefully tried to take a sample leaving as much water on the dipper before taking the sample as reasonably possible. He took samples swishing the wet dipper in the milk and then filling the sample bottle. There was no significant difference in the test results from the various sampling methods in the April 11, 1997 milk samples he took. He concluded from these tests that the dipper being wet before a sample was taken did not affect the freezing point test results.
Mr. Bob Pollock, the bulk tank milk grader who took the February 5th, 1997 milk sample at the Schouten farm, described how he took the sample. He said his procedure is to go to the basement and take the dipper out of the sink, rinse it, shake out the excess water, take it to the bulk tank, slosh it in the milk, take a sample and put the sample in the vial. One dipper full will fill the vial with a little left over. He then puts the dipper back into the sink and continues to pick up the milk in the tank and then starts the bulk tank washer.
In response to questions, Mr. Pollock said that if there was wash water in the bulk tank he would be able to smell the soap and sanitizer and he did not detect any unusual odor on the milk picked up at the Schouten farm.
In response to questions, Ms. Hubers told the Tribunal that producers are notified if the official test is in the warning or gray area for freezing point tests but few official tests were being done prior to the new screening test being developed. No notification was sent to the producer if the estimated freezing point from the new screening procedures indicated the freezing point may be in the gray area. These samples are sent for an official test and, if the official test is in the gray area or penalty level, the producer is notified and the milk quality advisor makes a farm call.
In response to questions, Mr. Adrian Schouten told the Tribunal that since the test result they have modified the ration being fed to the herd. He said they now feed a ration that has a lower grain content. They used to feed a ration with 40% forage and now used 50% forages. He said this is not as economical from the point of view of production but is better from the point of view of herd health. He said that the fat content of the milk has increased since the ration was changed.
In his summation, Mr. Schouten argued that there is no clear evidence to show water was added through the procedures used on the farm. The 600 liters of water necessary over two days of production to obtain the test results showing for the farm is a lot of water. Since the farm is already over quota there is no incentive to increase the volume shipped so something else, other than added water, has to be taking place
In her summation Ms. Hubers argued that, while the staff had been unable to pinpoint the cause of the warm freezing point test results, there was no evidence to indicate that the sampling or testing procedures were in error and therefore the Director has no choice but to let the test result stand.
The Tribunal examined the evidence and concluded that it indicates there is significantly more chance of a freezing point penalty being applied against a producer now than in the past. This is due to the change in the testing procedures at the laboratory and the development of a screening test to estimate the freezing point of a sample of milk. In the opinion of the Tribunal, producers ought to be made more aware of the details of the new test and how to obtain the past estimates of the freezing point of milk samples taken from their farms.
The Tribunal took note of the following facts:
The Schoutens provided written instructions to their employees on how to operate the milking and washing equipment in a proper fashion.
The Schouten farm is in an over quota situation.
Once the Schoutens became aware of the test results, the subsequent test results became closer to the normal freezing point.
The testing and analysis of milk sample test results for the different drivers done by Mr. Cuthbertson proved that the dipper is an unlikely source of excess water in the milk sample and the drivers take samples in a consistent manner.
In this case, both parties agreed there is no financial incentive to the producer to add water to the milk. The evidence also indicates there is no reasonable explanation as to how the volume of water needed to produce the test result could be added without the specific intent of the producer. There is no evidence of any problem in the sampling and testing procedures.
The Tribunal was given no comfort that other producers who might be in similar circumstances are being informed of their situation. The Tribunal recommends that the Branch and the DFO inform producers of the details of the new freezing point testing procedures and provide the estimated freezing point results from milk samples already taken so that each producer is in a position to analyze his own situation and take any action deemed necessary to consistently comply with the freezing point regulation.
Decision and Reasons
After careful consideration of the evidence presented and the submissions made, the Tribunal decided to deny the appeal and uphold the decision of the Director.
The reason for this decision is that the Tribunal was not convinced that there was anything wrong with the testing procedures or test results.
Dated at Guelph, Ontario this 25th day of February, 1998.