ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Bazinet v Lapointe 1995 ONNFPPB 38
DATE OF DECISION: 1995-11-30
95-01
STATUTE: Farming and Food Production Protection Act 1990
HEARING:
BETWEEN: Francios Bazinet - Applicant And Jean-Guy Lapoint - Respondent
This matter was heard on August 23th, 1995 at the Township of Russell Municipal Building, 1717 Notre Dame Street, Embrun, Ontario. With the consent of all parties, written argument based on the evidence presented at the Hearing was submitted by the parties to the Board on or prior to the 23rd day of September, 1995.
This Hearing was held for the consideration of an application by Francoise Bazinet for determination of Jean-Guy Lapointe's, carrying on business as Elevateurs Lapointe, practice of grain handling and storage at Part Lot 8, Concession 9 in the Township of Russell, in the County of Prescott and Russell. Francoise Bazinet owns a neighbouring property.
Such application was brought under Section 5 of the Farm Practices Protection Act and was heard before Robert G. Waters, Chair, Dorothy Middleton, Vice-Chair and Roger Beaudry, Member.
FINDINGS OF FACTS
Land Use Controls:
The applicant, Francoise Bazinet, resides with members of her family in a house located on Part of Lot 8, Concession 9, Township of Russell. The parcel on which the applicant lives was created by severance, it appears, in or about the year 1977. Both this parcel which was created by severance by the Agricultural operator and the abutting parcel owned by the Agricultural Operator, Jean-Guy Lapointe, are zoned Restricted Agricultural (A1). Across Chemin St. Thomas, immediately to the west are the additional lands owned by Mr. Lapointe, which are zoned Village Residential Type lA but placed in a holding category. Next to it is Lapointe Estates. These are lands which are set aside for future residential development but cannot be developed unless each lot is served by a public water system and public sanitary sewer system.
While the Village of Embrun which is within the Township, is gradually encroaching to the east, towards the farmland operated by Mr. Lapointe; still the lands which are subject to the application are zoned Restricted Rural Zone (A1) of which a permitted use is an "agricultural use but not including a "specialized farm"".
In the Zoning By-Law the definition of a "specialized farm" is one which can include an intensive livestock definition.
The definition of "agricultural use" in Section 2.2 of the By-Law includes the growing of crops and all related activities and also includes the storage and sale of crops. However the term "agricultural use" is "not to be construed to include commercial or industrial activities related to agriculture, such as ........................... grain drying and sales outlets or the manufacturing or processing activities involving farm crops and animal products". There is permission within the term "agricultural use" to include the use and storage of all forms of equipment or machinery needed to accomplish the foregoing activities, ie. sale and storage of crops.
The evidence before the Board was that there was no commercial grain drying at these premises.
Mr'. Lapointe stated that the premises were used solely for the farms operated by Mr. Lapointe which were approximately 800 acres, although in the past Mr. Lapointe has farmed up to 2400 acres.
Based on the evidence of the agricultural operator, which was not contradicted, the Board is satisfied that there is no violation at the time.of the Hearing of the Land Use Control By-Law.
It would appear that the General Rural Zone (A2), and where necessary for a feed or flour mill, the Agricultural Industrial Zone (MA), are the only zones that allow a commercial grain drying facility.
Finally, it is noted that, pursuant to Section 19(2)(j), the Restricted Agricultural Zone is subject to the General Provisions of the Zoning By-law. Under Section 3.2(6) of the General Provisions, Subsection (b), there is a provision preventing new residential lots on any zone other than a Residential Zone when the lot is 120 metres from a building or structure used to house animals or fowl and/or manure storage area and 240 metres from a building or structure which is used to house animals or fowl, a feedlot area and/or manure storage area on a "specialized farm". There is no provision for a setback for grain dryers or feed or flour mills in this By-law.
NOISE
Although it was not set out in the complaint of Francoise Bazinet to the Farm Practices Protection Board, in her evidence, mention was made that the noise was quite loud. Mme. Bazinet went on to say that she could ignore it but not the dust. Eric Bazinet, son of the applicant, also indicated in his testimony that the noise of the fans from the silo was a problem.
He indicated that fans were running all hours.
The Board notes however that this evidence was provided as almost an afterthought as the evidence provided by the Abatement Officer, Rheal Delaquis from the Ministry of Environment and Energy did not indicate that noise was a problem. In addition, information was provided by the agricultural operator that in an upgrading of the facilities in 1985, he changed the existing exhaust fans for the grain storage bins-from axial to centrifugal, thereby lessening the impact of noise from the grain drying facility to the abutting land owner.
Given the lack of evidence from the complainants and the Ministry of Environment that the noise level was excessive, in addition to the fact that no evidence was provided in the form of readings of decibels from the Bazinet property, the Board is satisfied that the noise presently emanating from the premises is at reasonable levels.
At the date of the Hearing the Board did not have on-site evidence in the form of aeration fans running in the bins to establish a basis for the amount of noise level. The Board is satisfied the noise level is reasonable.
DUST
At the outset of the Hearing, Donald R. Good, Counsel for the Agricultural Operator, acknowledged on behalf of his client, Jean-Guy Lapointe and Elevateurs Lapointe that Francoise Bazinet was an aggrieved person as described in Section 5(1) of the Farm Practices Protection Act.
As such it was submitted on behalf of the Agricultural operator that the only determination to be made by the Board was whether the noise or dust resulted from a normal farm practice. During the Hearing considerable evidence was given as to the quantity of dust, including pictures submitted by Rheal Delaquis of the Ministry of Environment and Energy (Exhibits 3 and 4), Mme.
Bazinet's testimony, the detailed photographs provided by Nathalie Levesque, the daughter of the applicant (Exhibits 6 - 8) and by Paul Levesque, the applicant's son-in-law, in the form of a video recording made by him (Exhibit 9) in October of 1994 during harvest.
In addition, photos (Exhibit 10) were submitted to the Board during the testimony of Rheal Delaquis relating to the time period which brought about a complaint when a Walinga Agri Vac was being used by the Agricultural operator to clean out some bins which were immediately adjacent to the home of the applicant. The evidence given by the Agricultural Operator was that this equipment was being used by Elevateurs Lapointe on a trial basis; was found unsatisfactory; and not continued. As a result, the photos contained in Exhibit 10 are of doubtful utility in that they relate to a portion of the operation which has since been discontinued.
What has been established by the Board as a result of the Exhibits submitted is that problems have continued for a. considerable time.
Exhibit 3 presented by Nathalie Levesque shows a number of photos taken in March of 1991 showing an obvious accumulation in heavy concentrations of red dog.
The applicant's daughter provided additional evidence in the form of photos taken in the fall of
1994, (Exhibit 6), during the period of harvest and in Exhibit 7, in the period of load out, showing the existence of dust.
The Board accepts the evidence of Mme. Bazinet, that the dust was at such a level that she removed her above-ground swimming pool. Exhibit 8 showing the amount of dust in the spring of 1995 in the vicinity of where the pool had been was adequate proof of her reasoning.
The Board is satisfied with the evidence of Francoise Bazinet that she was not excessively sensitive to the nature of the agricultural operation. It is noted that in her testimony she indicated that the noise was quite loud but she could ignore it, but not the dust. To the rear of her house and directly upwind is a gravel road used by Jean-Guy Lapointe for access to other portions of his operation. When asked whether this dust represented a problem, she indicated that it did not.
The Board is satisfied from the evidence of the applicant that the applicant's complaint relates mainly to dust arising from the handling of corn and to a limited extent, to the handling of soybeans. But from the point of view of Francoise Bazinet, the dust or red dog from corn presents the greatest nuisance value.
The Board received evidence that the nuisance value of red dog arises from the very nature of the substance itself. It tends to permeate everything which it comes in contact with and tends to find its way into vehicles, filtration systems for furnaces and inside cars so that when the fan.is turned on it sprays around. The Board accepts the evidence of Francoise Bazinet that where this dust; which is relatively inert, is wet, it also creates an odour when it decays.
In his evidence, Rheal Delaquis, Environmental Officer (Abatement Section) from the Ministry of Environment and Energy provided additional detail as to the nature of the nuisance. He indicated that the operator was working with defective equipment. In his view this was not normal. He further indicated that in his opinion as an Environmental officer it is not normal to use a practice that hinders the personal use of a neighbour's property. In his letter to Jean-Guy Lapointe of October 13, 1994, after a meeting which had occurred on October 5, 1994, Mr. Delaquis alluded to equipment not being property adjusted (the Walinga Agri Vac) causing an unacceptable discharge of dust onto neighbouring properties. He also suggested to the Agricultural Operator that Section 14 of the Environmental Protection Act prohibits a discharge of a contaminate that "causes or is likely to cause an adverse effect".
In his review of the activities of Jean-Guy Lapointe he described them as "industrial activities". On cross-examination at the Hearing, acknowledged that he was not aware of the existence of the Farm Practices Protection Act. The Board notes that there is a protocol between the Ministry of Environment and Energy and the Ministry of Agriculture and Food and Rural Affairs for handling of complaints regarding dust, noise and odour. However the protocol was not followed in October of 1994.
During the Hearing considerable evidence was given as to the impact of the dust on the reasonable enjoyment by Francoise Bazinet of her premises. In addition evidence was given by Nathalie Levesque at the Hearing that the red dog affected her allergies. However no detail of any suffering was given, nor was medical evidence provided by Nathalie as to the medical effect of red-dog.
Based on the evidence of Francoise Bazinet, Nathalde Levesque and Paul Levesque, the Board is satisfied that dust in the form of red dog was deposited on the property of Francoise Bazinet in large quantities. The Board notes that there were abutting landowners immediately to the east of the property of Francoise Bazinet, namely Alain Bazinet, who did not join in the Hearing or raise a complaint.
The Board accepts the evidence of Francoise Bazinet that the prevailing winds are from the west and northwest. Given the locations shown on Exhibit 18 of the grain drying operation and house owned by the applicant the prevailing winds would have come at right angles to the rear of the house or when the winds were from the northwest, come across the property on a diagonal. In both situations dust would deposit on the Bazinet property.
The Board is satisfied from the evidence of Eric Bazinet that the house is located 32 feet from the lot limit and that from that limit to the nearest silo is a further distance of 31 feet. The Board notes that, based on this evidence, the grain drying operation will meet the minimum interior side yard width--for an agricultural use in the zoning by-law which is 9 metres. Given the age of the operation and themost recent expansions, in all likelihood, the operation of Jean-Guy Lapointe is a legal non-conforming use as well. The evidence that the house is 63 feet from the edge of the agricultural operation in question,, was uncontradicted by the Agricultural Operator.
The Agricultural Operator, Jean-Guy Lapointe, provided considerable evidence with regard to the establishment of the operation. The Operator currently cultivates 800 acres, although in the past has operated farms with a total acreage, both rented and owned, of 2,400 acres. He currently cash crops corn and soybeans. The operation was established in 1969 when a dryer and 3 bins were placed on the property. That was increased to 8 bins and 2 dryers as a result of a number of upgrades which occurred in 1975, 1985 and 1987.
The Board accepts the evidence of the Agricultural operator that the number of tonnes dried in recent years has declined from a high of 2,437 tonnes in 1991 when Francoise Bazinet started her initial complaints municipally to 1,919 tonnes in 1994. Although there was some variance between the information of Jean-Guy Lapointe as to the dates of his receipt of corn and the information provided by Paul Levesque in the form of a. video recording showing dust accumulations in certain days in October of 1994, the Board is satisfied that, given the Exhibits provided by both parties that the dust related to reception of corn in 1994 and not soybeans.
In addition the Board is satisfied that.little, if any, dust will arise from the Embrun Co-op which,.according to the evidence of Jean-Guy Lapointe is approximately 800 feet away and, given the evidence regarding prevailing winds, is unlikely to provide much, if any, dust to the premises.
This operation is far larger than that of Mr. Lapointe but the Board has little information with regard to this operation as the expert evidence given regarding similar operations did not include the Embrun Co-op.
Information provided by Mr. Lapointe is that his agricultural operation has a grain pit with a covered elevator, which during load in periods uses plywood grain guides to control flow and limit dust. The premises is equipped with a continuous flow dryer installed in 1985, the equipment is a MC dryer, model number 1165, which is a closed system. Red dog is released at the top of the system but is collected by means of cyclones at this point, as well.as during elevation to bins. The cyclones then deposit the red dog or dust on the concrete base between the storage bins for removal when it is wet.
In addition there is a cleaner adjacent to the elevator legs located on the premises. This cleaner allows for the separation of the fines or screenings for direct supply to a farm wagon for re-use in the form of animal feeds.
Exhibit 18, being a report provided by Stephen P. Clark of Ontario Ministry of Agriculture, Food and Rural Affairs, provides a description of the location of the bins and other equipment in the operation (Figure n2). We attach this portion of the Exhibit as part of this Decision. The estimated storage capacity of this operation is 3,375 tonnes, with the dryer having a capacity of 10 to 15 tonnes per hour. Given the amount of tonnes handled, it is obvious that not all of the grain can be dried as it is entering the system. The normal practice for Elevateurs Lapointe is to dump the grain into wet storage, keeping the grain in condition by use of aerators.
From there the grain goes to the dryer, to the cleaner and then returns to storage. The grain is fed to the dryer by virtue of augers which are below surface for silos 1, 2, 3 and 4, through gravity in connection with silo/bin 7 and by using outside or portable power take off augers for silos 5 and 6. All grain enters the silos through the grain elevation system which is a closed system in which the dust is removed by virtue of the cyclones.
Evidence was provided in 1994 to show that the number of tonnes of grain dried has been reducing gradually, with the exception of 1991. This however may relate to the harvesting conditions.
It appears that the Operator, Jean-Guy Lapointe, has a contract with Casco, a local processor, for the supply of much of his corn. He has indicated that in 1994 he bought a few tonnes from another farmer but that in 1995 no such purchases have occurred to the date of Hearing.
The operator indicates that much of the difficulties which led to the visits of the Ministry of the Environment and Energy in October, 1994 resulted from the breakdown of an auger leading from one of the larger bins when there was approximately six loads to go. At that time the Operator, Mr. Lapointe, arranged on a trial basis or rental basis, the .use of a Walinga Agri Vac. He indicated that it did not work as it did cause too much dust. At the time of the visit by Mr. Delaquis of the Ministry of Environment and Energy, this temporary piece of equipment was the reason that a fine white dust was found on the abutting property. He also indicated that at the time plastic pipe leading from the auger which was removing the fines or screenings or waste material from the cleaner, had been removed, adding to the dust problem.
The load out facilities for the agricultural operation are also relatively close to the house of Francoise Bazinet. If the wind is coming from the northwest, it is in direct line with the house. Although prior evidence had been given with regard to difficulties with the load out facilities in relation to the winter of 1991, the evidence which was most current at the time of the hearing related to the video and photographs from October of 1994. Evidence was provided by the Agricultural operator, which was not contradicted, that although there are two load outs in proximity to bin #1, only the load out which is closest to the elevator leg is used. This was not contradicted in evidence given by any other party.
Although evidence was given by Eric Bazinet that the load out portion of the operation provided the most dust, this was contradicted by the evidence of Francoise Bazinet and Paul Levesque which seemed to indicate that the dust was arising in areas closely related to the loading of fines by auger and the dust collection system located between the bins. Francoise Bazinet stated in her evidence that there appeared to be less problem in load outs in the summer. The Board notes that the evidence provided by all parties indicates that the use of a covered truck by Elevateurs Lapointe which had 7 loading doors and which used the flexible sleeve in the first downspout, seemed to reduce the incidence of dust as reported by Mme. Bazinet.
The Board notes that the Exhibits provided by Rheal Delaquis in relation to October, 1994 shows that the dust arose in the special situation of the breakdown of the auger in relation to a cyclone immediately adjacent to the Bazinet property which cyclone fed into an uncovered truck. The Board received varying amounts of evidence from the family of Francoise Bazinet as to when the problem reaches its worst intensity. It appears that in the minds of the witnesses for the applicant, the load in and load out situations caused the greatest problems while dryer operations caused less of a problem.
The evidence of Nathalie Levesque was that the problem begins in the fall and continues until spring. It is less serious in the period between December through March. Although the swimming pool has been removed, according to the applicant as a result of the dust, Nathalie Levesque indicated that when she visited in the summer the level of dust was not a problem.
This is contradicted by the evidence of Jean-Guy Lapointe in 1994, Exhibit 13 and 1995 with regard to load outs. The charts provided indicate that much of the load out activity occurred from March through early October in 1994 and in January and August in 1995. Expert evidence was provided to the Board by William Graham, P.Ag. of Weston, Graham & Associates Limited, an Agrologist and Certified Agricultural Consultant. Mr. Graham submitted a report being Exhibit 17 comparing the practices of Elevateurs Lapointe at Embrun to five other farm grain elevators. Of the five, two were identified as being commercial operations. Mr. Graham, whose expertise was accepted by the Board, based his report on a number of visits which occurred in early to mid August, including one truck being loaded from the operation on August 16 or 17.
In reviewing his report, in response to questions from the Board, Mr. Graham noted that although several of the operators of the grain elevators which were used as comparisons to Elevateurs Lapointe, had residences which were close to their operations: none of the residences of the owners were as close as the residence of Francoise Bazinet. He stated that the closest was M. Callande, at Casselman, at 100 feet. However when Mr. Graham reviewed the location of neighbouring residences to these grain elevators or grain drying operations, the nearest location in metres was described as 200 metres.
A number of methods used by Jean-Guy Lapointe were described as innovative or as an advanced management practices. These included the use of wooden grain guides to control the flow of grain from the gravity wagons: and the grain load out system at Elevateurs Lapointe which included the downspout extension into the enclosed truck box. Comment was also made as to the practice of Elevateurs Lapointe using cyclones to separate the red dog and the fines or screenings as a good practice.
This report, although it described the method of dust collection at Elevateurs Lapointe did not comment as to its quality as a management practice.
A further report was supplied from the Ministry of Agriculture, Food and Rural Affairs through Stephen P. Clark, P.Ag. (Exhibit 18) .
Although the report emanated from a visit on July 26, 1995, it is the Board's view that if the terms of the protocol between the Ministry of Environment and Energy and the Ministry of Agriculture, Food and Rural Affairs had been followed, such report should have been secured at an earlier time.
However the report, at the request of the Board, was submitted by Mr. Clark at the Hearing on August 23, 1995. Mr. Clark's report was limited by the fact that during his visit the elevator was not actually operating.
The report of Mr. Clark indicated that there were areas of improvement including a better method of collection of dust which, initially, is collected by cyclones and then dropped on to a concrete floor between bin numbers 2 and 3 and the elevator and cleaner. Mr. Clark noted in his evidence that the auger from the cleaner should have a flexed spout into the collection wagon so that the drift from fines and any telltale red dog removed at this point by the cleaner would be minimal.
In the unloading area a flexible sleeve should be attached, according to Mr. Clark, to the second downspout if it is to be in use. Evidence at the Hearing indicated that such downspout is not used. Mr. Clark also provided in his report suggestions to cut off the breezeway between silos 1 and 2 and silos 2 and 3 by means of a wood blocking wall to create a dead zone. In the blocking wall there would necessarily have to be access through a door which would allow either an individual or equipment to remove settled dust.
Finally, Mr. Clark recommended a screen fence between the properties in the form of a wind block in order to help reduce complaints.
Mr. Graham, in his report in comparing the premises to other farm elevator operators, noted that Jean-Guy Lapointe used the same general practices as other local operators. As noted previously he had indicated that good management practices and some new technology were in place, including the use of cyclones to remove red dog, a method not ordinarily used by farm elevator operators because of their isolation. Mr. Graham noted the use of the covered truck, although the evidence of Mr. Lapointe was that ten percent of the time such truck was not used. It was noted in the evidence of Mr. Rheal Delaquis that in fact a tarp covered truck during October of 1994 had been used by Mr. Lapointe when there was an elevator breakdown.
Mr. Graham stated that with the exception of the use by Les Frere Cayer, there were no innovations or practices found at the other five elevators which would materially improve the way in which Elevateurs Lapointe was operated or managed. At Les Frere Cayer, the farm operator collected the red dog and fines by containing them in a bin. This meant, of course, that the operator lost the use of the fines as feed but did not have a dust problem. The operator had observed, according to Mr. Graham, that it was not feasible to contain the red dog when emptying the bin. No such bin, according to the evidence of all parties, exists at the operation of Elevateurs Lapointe.
THE ISSUES
The issues before the Farm Practices Protection Board are as follows:
Does the operation of an auger to load out fines, without the use of a sock or flex spout, represent a normal farm practice?
Does the operation of the second downspout in the unloading area, without a flexible sleeve, represent a normal farm practice?
Does the quantity and type of dust emitted from the grain handling, drying and storage operation of Jean-Guy Lapointe represent a normal farm practice?
Does the lack of a containment area for red dog or dust emitted from the grain dryer and the elevator-legs, after it is collected from them by cyclones, represent a normal farm practice?
DECISION
(1) JURISDICTION
Section 2(1) of the Farm Practices Protection Act provides protection from liability and nuisance to any person for an odour, noise or dust resulting from an agricultural operation as a result of normal farm practice, provided that agricultural operation does not violate:
(a) any land use control by-law;
(b) the Environmental Protection Act.
There are a number of other statutes which. an agricultural operator must comply with but these do not impinge on the Board's Decision.
Initially in the Board's finding of facts under Land Use Controls it was noted that there was no violation of the Zoning By-law for the Township of Russell, By-law number 90-92, provided that this operation is not viewed as a commercial operation. However there was concern with regard to the evidence provided by the Ministry of the Environment and Energy that certain aspects of the operation violated Section 14 of the Environmental Protection Act. It appears that the Ministry's initial investigation arose from the use of a piece of equipment called Walinga Agri Vac which is used to remove grain from bins where it may be in danger of going out of condition (spoiling) or as in the case of Jean-Guy Lapointe, where there has been an equipment breakdown. In this situation additional equipment, including a tarped truck were used at a point which was considerably closer to the property of Francoise Bazinet than other unloading equipment.
The evidence of Mme. Bazinet related solely to the nature of red dog which is truly an intrusive and bothersome type of dust, yet the evidence in Exhibits 3 and 4 from the Ministry of Environment and Energy indicate a powdery dust which may have arisen from the six loads which needed to be removed from bin 1 or 2 as a result of a breakdown.
The evidence of Mr. Lapointe, which was confirmed by the video of Paul Levesque, was that red dog commenced later during the harvest period; not at the time of this breakdown. Since the practice of using the portable Agri Vac has been discontinued, the Board reviewed solely the operation of the main elevator drying and unloading system, the Board views itself as having jurisdiction separate from the issues which arose as a result of the breakdown which was investigated by Mr. Delaquis on October 5, 1994.
The Board notes in passing that the adverse effects described by Mme. Bazinet were ones of inconvenience. Evidence was conflicting whether this inconvenience was unacceptable in the months March through late September.
(2) NORMAL FARM PRACTICE
Normal farm practice as set out in Section 1 of the Farm Practices Protection Act means "a practice that is conducted in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations, under similar circumstances and includes the use of innovative technology used with advanced management practices". In making a finding as to whether there is a normal farm practice, the Farm Practices Protection Board must have regard to what are proper and accepted customs and standards as established and followed by similar agricultural operations.
In making a decision whether there is a normal farm practice the Farm Practice Protection Board must have regard as to what are proper and accepted customs as established and followed by similar agricultural operations.
The evidence provided by Weston, Graham & Associates Ltd. through William Graham, Agrologist, provided an acceptable survey of the surrounding grain elevators.
Based on this evidence the operation carried on by Jean-C-uy Lapointe of and itself, did not represent a violation of proper and accepted customs as established and followed by similar agricultural operations. However when questioned by the Board Mr. Graham indicated that the nearest home in relation to these operations was-100 feet from the operation itself and these homes were the residences of the operators. However a prudent operator would not be locating his home, in all likelihood, downwind from a dust source. When questioned as to the location of the nearest non-farm or neighbouring residence, Mr. Graham stated the nearest residence in connection with these operations was 200 metres away. In other words, the evidence provided by Mr. Graham showed that no operations such as Mr. Jean-Guy Lapointe's is in such close proximity to living accommodations. This operation's location represents a violation of
accepted customs of similar agricultural operations in this area.
Based on the evidence before the Board it finds:
That the use by Jean-Guy Lapointe of an auger to remove fines without the use of a sock or flexspout is not a normal farm practice.
That although the operator has used advanced management practices in collecting dust in the form of red dog from his dryer and elevation system-, in failing to provide for the collection of that dust, the storage method is not a normal farm practice.
That the use of the second or lower portion of the unloading spout without the use of a flexible sleeve is not a normal farm practice. Evidence however is before the Board that this spout is no longer in use. If such is the case, if the spout were removed or in any other manner stopped up or should a flexible sleeve be added, there would no longer be a violation of proper and accepted customs of similar agricultural operations.
That the operation of the dust collection ,system without a bin or zone for collection is not a normal farm practice and that although there may be difficulties in emptying a bin, the amount of contaminants or emissions which occur in the emptying is far reduced from that of having an open collection system.
That the quantity and type of dust emitted from the grain handling, drying and storage systems of Jean-Guy Lapointe do not represent normal farm practice. If the grain drying and handling operation of Jean-Guy Lapointe is to be continued at the present location remedial work must be undertaken within a reasonable time to reduce the dust emitted from the failure to provide for a bin or collection system for the red dog to a level which would be consistent with grain handling and drying systems located at a reasonable distance from residential uses.
The Board accepts the evidence of Stephen P. Clark in-his report submitted at the Hearing that blocking walls should be located to prevent wind passing between the elevator and cleaner and bins 2 and 3. Such blocking walls should be as shown on Figure 1 to the report of Stephen P. Clark attached but should, in addition, block between bin 3 and bin 2 and the elevator and cleaning building, if there is any space for access of wind. The walls should be of a height sufficient to create a dead zone or in the alternative, should contain a roof above the cyclones so that the dust will not escape, except in small quantities during removal.
The Agricultural operator can use water to dampen the dust, if he wishes, at the time of removal. The Board is concerned that there is a lack of flex spout leading to the gravity wagon used for the collection of fines. If such flex spout is not feasible, the gravity wagon used for collection of fines will need additional walls placed on it in such a fashion as to create a dead zone so that dust emanating from the auger removing fines will not flow freely into the air.
The Board is satisfied that the grain loading techniques of Jean-Guy Lapointe, when using the covered truck with seven loading doors and the flexible spout represents a normal farm practice, despite its proximity to the abutting land owner.
The Board notes that although bins/silos 5 and 6 use regular augers for load out of grain, the use of such augers can continue as distance from the applicant and their location is such that they do not appear to create dust for the applicant.
The Board notes that the agricultural operator has, with the exception of the items described in its Order, a closed system which, although it is in proximity to the abutting land owner, represents a system which can be viewed as normal farm practice.
At the end of its Hearing on August 23, 1995 the Board asked for written submissions from both the applicant and the Agricultural Operator, such submissions to be delivered within thirty days.
The Board received such submissions and requires no further submissions.
The Board wishes to advise the Agricultural Operator that it is not a prerequisite of compliance with the Decision of the Board that the Agricultural operator requests that the Board reconvene to review the work undertaken or an alternate proposal and notes that should the applicant make a further request for a Hearing as a result of the work undertaken, it may view this as a new matter as the agricultural operation will have changed in substance.
Either the applicant or the Agricultural operator may construct a windbreak fence if they wish in accordance with the Line Fences Act, which should provide for a sharing of costs. The Board does not order this as a remedy as the parties may avail themselves of the existing legislation to determine completion of such a fence.