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:
Buttar v Ontario Ministry of Agriculture, Food, and Rural Affairs
Buttar v OMAFRA 1998 ONAFRAAT 20
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
May 4, 1998
May 13, 1998
1998-20
NEUTRAL CITATION:
1998 ONAFRAAT 20
Buttar v Ontario Ministry of Agriculture, Food, and Rural Affairs
IN THE MATTER OF THE MILK 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 Bruce Buttar, Gores Landing, Ontario from the decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food and Rural Affairs, to allow the June 7, 1997 and August 6, 1997 plate loop count test results taken from their farm to stand.
Before:
James Rickard, Chair; Denis O’Connor, Alternate Chair; Andrew Koopal, Member.
Appearances:
Bruce Buttar, appellant in person.
Rena Hubers, on behalf of the respondent, the Director, Resources & Regulations Branch, Ontario Ministry of Agriculture, Food & Rural Affairs.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of Hamilton Township near Gores Landing, Ontario on May 4, 1998.
Mr. Bruce Buttar, Gores Landing, Ontario appealed the decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food and Rural Affairs (the Branch), to allow the June 7, 1997 and August 6, 1997 plate loop count (PLC) test results taken from his farm to stand.
Explanation of Test Procedure
A PLC is a test for bacteria in milk. It is called a "plate loop" because a small wire loop is used to extract a milk sample from the producer sample bottle for testing on a petri plate. The loop is designed to produce a sample of 1/1,000 of a millilitre of milk. The test procedure, as carried out at the Central Milk Testing Laboratory (the Lab) in Guelph, is automated.
At the Lab, the producer milk samples arrive in batches arranged according to transporter and transport driver's route. All of the samples in the batch are tested at the same time. This is a safeguard to check that the samples have been stored properly. If a number of samples in the batch have high bacteria counts, it is possible that the milk was stored at too high a temperature prior to the test and these batch test results are disregarded.
Once the batches have been assembled, the loop is dipped into a milk sample and moved over a petri plate. The plate lid is removed and sterile agar is added to the plate. The milk sample is flushed from the loop by a sterile buffer solution. The petri plate lid is then replaced and the plate is gently rocked to mix the solution. The plate is labelled with the transporter, transport driver and producer numbers and stacked until the agar has solidified. The plates are then inverted and placed in an incubator for two days to allow bacteria to grow.
After 48 hours, the petri plates are removed from the incubator and placed under an image analyser. The image analyser is calibrated every day. It is used to automatically count the number of bacteria colonies that are growing on the plate. Since each colony originates from a single bacterium, and since the original sample is 1/1,000 of a millilitre, the number of colonies multiplied by 1,000 gives the bacteria count per millilitre of milk.
Penalties apply for bacteria counts over 100,000 per millilitre. To reduce the possibility of error, when the number of bacterial colonies counted by the image analyser is between 80,000 and 120,000 the machine stops and that plate is counted manually. This is a safeguard to ensure counts approaching the penalty level to the producer are double checked for accuracy in the counts.
This sample cannot be used for "retesting" for bacteria as there is the possibility that bacteria in the sample could have multiplied during the 48 hours of incubation of the original test thus making any retest of this sample not valid.
The Background
Regulation 761 Section 52(1) states:
"(1) The milk of every producer,
(a) shall be tested at least once in each month,
(i) for bacterial content by a plate loop test...."
Mr. Buttar told the Tribunal he crops 450 acres as well as milking his herd three times a day in his modern dairy barn. He said that in 1996 he built a new dairy facility consisting of a 100-cow free-stall barn, with a double-six parallel parlor. He milks three times a day, 6:00 a.m., 2:00 p.m. and 10 p.m. His wife, Doris, and son, Michael, assist with the milking on a regular basis. His youngest son also assists on occasion.
The new barn uses several innovations to save water and reduce waste. It uses a system of recycled wash water from the pipeline stored in a tank to wash down the milking parlor area. Water from the plate cooler is stored to be offered as drinking water for the cows.
The Issue
Should the Tribunal allow the June 7, 1997 and August 6, 1997 plate loop count test results taken from the Buttar farm to stand?
The Evidence and the Findings
Mr. Buttar said the storage tank that supplies water to wash down the parlor also is supplied by the water pressure system from the well. As soon as the water level in the storage tank goes down, a valve from the well system opens to fill the storage tank. If the pipeline is washing and the parlor is being washed down at the same time, the well system does not provide sufficient volume to satisfy the water requirements. The result is the pipeline wash sink fills slowly. He said they put in a valve to correct this problem.
Mr. Buttar told the Tribunal that it takes about half an hour to bring the cows in and prepare to milk. It takes about one hour to complete the milking. He said he turns on the pipeline sanitizer when he starts to bring the cows in. It takes about half an hour before the sanitizing cycle is finished and by then he is ready to start to milk. For his milking procedure, he sprays the cows with a pre dip, wipes them with a single-use towel, checks the milk house, opens the valve into the tank then attaches the claws to the first line of cows in the parlor.
When milking into an empty tank, he turns the bulk tank cooler on before starting milking and checks there is no sign of freezing.
Mr. Buttar said he put in a propane heater when he built the new barn in September 1996. He said there was some concern about the temperature of the water. He had the temperature adjusted in January or February.
He said he had his water tested at the County Health Lab in Peterborough in July and it was found to be of good quality. He regularly puts chlorine in the well to control iron bacteria that can cause a slime to grow in his storage tanks.
Mr. Buttar said that on June 13 he received notice of a June 7 PLC test result of 300,000. He was very concerned and called Plaunt Farm service. They suggested that he check the pipeline, receiver jar and milk discharge pipe for build up of milk stone or unclean equipment but he found none. He said the following week two technicians and the territory manager for Alfa Laval came to the farm to inspect the washing system and the bulk tank. Some problems were noted with the washing system but it was working within specification and no build up of residue was found. He made some changes to his routine and adjusted the milking time so that the pipeline and tank were not washed at the same time the parlor was being washed.
He was concerned when the August 6 PLC test was 199,000 which put him in a penalty position and he requested a visit by the milk quality advisor.
He said Mr. Tony Koekkoek, a Milk Quality Advisor with the Branch, came to his farm on August 14th and found the pipeline clean except for a small build up on the pipe in the receiver jar. He said Mr. Koekkoek found a piece of manure that had been pulled onto a screen on the top of the milk meter. He said it was hard and dry and was likely off a cow’s tail.
Mr. Buttar explained that when the milk flow drops below 0.4 liters per second the vacuum shuts off and after a seven second delay the retractor pulls the claw off. On the claw, where the tubes attach to the inflation, they form a “V”. When the “V” goes through the cow’s tail, if there is any manure on the tail it can get caught in that “V” and then can get into the inflation and be sucked into the system. He said he has seen manure caught in the screens but just how it gets there he is not sure
In response to a question from the Tribunal as to whether or not there was a build up on the stem under the cup, Mr. Buttar replied yes. But he has solved that problem by increasing the soap slightly. He adds soap to the wash manually.
Mr. Buttar expressed some concern about the milk collection on his farm. He said that according to the information supplied by the DFO, when the milk truck driver comes to the farm he:
Washes the dip stick under the warm tap water, wipes it with a single use paper towel, measures the milk. He repeats this procedure twice. When satisfied the measurement is right, he records the reading
He then is to agitate the milk for five minutes.
Then, using a pipette, he is supposed to take a milk sample, fill the sample vial, close the cap and seal the vial with the tamper proof lid and clip.
Then he is to identify the sample and store it in the cooler in the truck.
Mr. Buttar showed the Tribunal a video showing the milk truck coming in his lane at 8:30 a.m. and at 8:32 a.m. the driver turned off the cooler. Three minutes later the milk began pumping. He said it takes about 1.5 minutes for milk to come to a complete stop once the agitator quits running so he is convinced that the sampling is not being done according to the guidelines.
He said it is possible the sample was not taken properly, that the sample was contaminated by the driver or that the sample was left uncapped and a fly landed in the sample. He said it was not unheard of for the driver to put the sample in his pocket and not put it into the case until the pick up was finished.
Mr. Buttar said in July he had a problem in that at the end of milking he noticed that the cooler was not running. He discovered that the breaker on the condenser had tripped and immediately corrected the problem. He explained to the driver that the milk may not have been cooled properly and perhaps the milk should be tagged. The driver said he did not know anything about tagging.
In response to questions from Mr. Buttar, Mr. Koekkoek stated that Mr. Buttar’s milk sample was the only one on each of the loads that had a high PLC. There were a total of 12 producers included in the batch of samples.
At the request of the Buttars, Mr. Koekkoek took extra samples to test for PLC. Mr. Buttar said the extra samples from March sample did not get tested as there was a problem with the temperature control in the storage before they were delivered to the Lab and they could not be tested. Mr. Buttar said something must have happened to the July and August samples. He said he feels the samples were not representative of the milk from the farm and he took action immediately to clean up and avoid penalties. Mr. Buttar said his somatic cell count usually runs well below 20,000 and that he has received several quality milk certificates.
Ms. Rena Hubers testified on behalf of the Branch. She said a plate loop count is a test showing the total bacterial content in the milk. The sample taken by the grader is used to test for inhibitors, plate loop and composition. There are security tabs on the vial to tell if they are properly handled. After taking the sample, the grader places it in an insert in a cooler to maintain the proper temperature. It is then transferred to a rack at the transport depot where it is refrigerated. It is then collected and taken to the Lab in refrigerated trucks. If anything unusual occurs, the samples are tagged. The Lab has strict criteria with respect to samples. The fact there were samples to test in March but were temperature damaged and not tested, shows that the system works.
She submitted into evidence results of the tests taken during June, July and August 1997. A sample taken on August 20th showed 10,000 PLC. Somatic cell count (SCC) test runs close to 200,000 which is under the provincial average. This report confirmed that the driver who took the sample on June 7 was not the driver who took the August 6 sample.
Ms. Hubers said it appears that the problem started in February with a PLC of 28,000. Mr. Buttar took corrective action at that time and made some changes in the temperature of the wash water. After the high PLC count of 300,000 on June 7, some problems with the washing system were noted. It took a long time to fill the wash sink so there may not have been a good wash.
Ms. Hubers said that the August 14 report completed by Mr. Koekkoek during his visit to the farm indicates that Mr. Koekkoek found a build up in the meters and a chunk of manure in the screen on top of the meter.
She pointed out that reports comparing the fat test results for the samples from the Buttar farm taken by the two different drivers for June, July and August who picked up Mr. Buttar’s milk showed nothing unusual in the results. She said that, if the drivers were not agitating the milk properly, she would expect to see a variation in the fat samples. However, there is little variation thus she concluded that there is nothing unusual in these test results. She said the results of the fat test coupled with the fact that there were different drivers on June 7 and August 6, when the high PLC tests occurred, convinced the Branch that the milk grader performance is not in error.
In her opinion, the evidence presented indicates that all proper steps on sample handling had been followed. There is some evidence of probable cause on the farm so it is the opinion of the Branch that the test results did reflect the quality of the milk shipped. She said she understands that there may be different causes for the high PLC counts and that Mr. Buttar has made many efforts to address the problems.
In response to a question from Mr. Buttar as to effect on a sample if not properly cooled, Ms. Hubers agreed that it would impact the plate loop count. If the sample was put in the pocket of the driver it would depend on the length of time and temperature, the longer and hotter it was the more effect it would have. When drivers put their code on the rack they are saying they took the sample correctly. If they forget to take a sample they are cautioned to tag the rack and tell the Lab what happened to the sample. All bulk tank milk graders are certified, including part time drivers.
Mr. Koekkoek told the Tribunal that if the driver thinks there is a problem of any sort with any sample, the driver tags the sample. This assists the Lab in making a decision on using test results from these samples.
Ms. Hubers said that Mr. Buttar’s farm average for SCC’s is lower than the provincial average. Other than the two high PLC tests, his PLC test results are lower than provincial average as well.
She agreed it is sometimes difficult for the farmer to determine what causes suddenly elevated PLC test results. In the current system, the farmer does not get the test results until about 10 days after the milk sample is taken. This turn around time will decrease when new technology is introduced in the Lab near the end of 1998.
In his summation, Mr. Buttar said they are in the business of producing quality milk. He said his record shows good quality. When he received notice of a high plate loop count he informed his service people and his installer and followed up with their recommendations to eliminate any possible sources of the problem. In July he felt he had the problem solved. When he had a high PLC test again in August he went through the same process again. No one was able to identify the problem. He said he did everything he could to avoid a penalty situation. In his opinion, something must have happened to the sample.
Mr. Buttar said his recommendations would be that if a sample shows high bacterial count the producer should be notified immediately of the test result. This would allow the producer to check for the problem and have it solved by the time the present system notifies him of a problem. In his opinion, a farm visit should be made and no penalty imposed until the problem has been identified. He feels there should be no penalty unless there is a problem in two consecutive months with no corrective action taken by the producer. He said the Branch should be pro active in helping solve the problem.
In Mrs. Buttar’s opinion, there should be some leeway created for new growing producers. As herds increase in size and are in transition there are growing pains. The purpose of the tests and penalties is to ensure quality milk is produced. She said there has to be flexibility until the kinks are worked out of the system.
In the opinion of Ms. Hubers, the investigation completed by the Branch found probable cause for elevated counts in June and August. She agreed that every effort was being made on the farm to correct the problem. She said that during his visit in November, Mr. Koekkoek again observed some build up in one of the meters.
Mr. Buttar’s position is that he has a quality operation and the test results of milk samples taken June 7 and August 6 are not indicative of the quality of milk produced on his farm. In his opinion, something had to have occurred with the handling of the milk sample.
The Branch’s position is that evidence presented confirmed that all proper steps on sample handling had been followed. The Branch found some potential causes of the high bacteria count. So it is their opinion that the test results did reflect the quality of the milk shipped.
The Findings
The Tribunal was not convinced that there was a problem with the sampling technique as shown by the consistency in results of samples taken over a period of time at different farms by the same drivers. While Mr. Buttar did provide evidence that at one time the driver did not agitate the milk for five minutes after his arrival at the farm and before the milk was being pumped, the consistency of the test results from the drivers indicates to the Tribunal that agitation was not a factor in the test results.
The evidence presented convinced the Tribunal that there was opportunity for bacteria to have entered into the milk on the farm i.e.
low hot water temperature,
slow filling of the wash sink,
build up of materials on the milking equipment, and
the presence of foreign material in the milking equipment.
Any or all of these situations could have contributed to the test results.
The Tribunal recognizes that the appellants showed perseverance in trying to identify the source of bacteria in their milk.
The Tribunal was convinced that the appellants take pride in the quality of milk they produce and would not intentionally market milk with a high bacteria count.
Decision and Reasons
After careful consideration of all of the evidence, the Tribunal decided to deny the appeal for the following reasons:
l. The Tribunal was not convinced that there was a problem in milk sampling or testing procedures.
- The appellant’s milk samples were the only samples on the load that tested high with the plate loop count.
Recommendations of the Tribunal
The Tribunal realizes that the DFO has recently taken responsibility for the milk quality assurance program. The Tribunal encourages the DFO to take action on the following two points.
The Tribunal recommends that DFO aggressively investigate the possibility of identifying the bacteria involved in high PLC tests so the source of contamination can be identified, especially as Mrs. Buttar observed, the size of the herds are increasing and thus the size of the penalty will increase.
The Tribunal recommends that the DFO investigate ways of transmitting plate loop count test results to the producer sooner than the current system provides. The Tribunal also recommends a PLC test be taken on any samples already in the system once a high test result has been found to verify if the problem is persistent. There is a significant financial penalty on the producer and little benefit to the producer unless the results can be provided quicker so they have the opportunity to identify the source of the contamination and make adjustments to the operation.
DATED at GUELPH, Ontario THIS 13th day of May, 1998.