Dietz et al v Bigras, Plastico, Tatomir, 1997 ONNFPPB 37

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Dietz et al v Bigras, Plastico, Tatomir

1997 ONNFPPB 37

DATE OF DECISION:

1997-05-20

1990-06

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Colleen Dietz – Applicant

And

Daniel Bigras, Sydor Platsco, Tom Platsco, and John Tatomir – Respondents

REASONS FOR DECISION

THIS APPLICATION has been brought by numerous residents of Marentette Beach and East Beach requesting a determination as to whether dust created by the agricultural operations of the Respondents results from a normal farm practice.

BACKGROUD

A marsh area located immediately to the north of Point Pelee in Mersea Township was drained approximately 40 years ago. The drained area is lower than the water of Lake Erie and a marsh which abut the drained area on two sides.

A system of dykes, canals, drainage ditches and pumping stations is utilized to drain the agricultural land which consists of black muck soil .

Marentette Beach is a community of both permanent and seasonal residences located on the eastern shore of the Pelee peninsula. The community extends a distance of approximately two kilometers between Mersea Township Road C to the north and Mersea Township Road E to the south. A private road running in a north/south direction behind the residences provides road access to the dwellings. A canal running parallel to the road is located immediately to the west of the road. The built up area of the road is the easterly boundary of the canal and a dyke forms the westerly boundary.

The muck farm land is a large open area measuring approximately two kilometers from north to south between Mersea Roads C and E and 1.5 kilometers from east to west bounded by the canal, and Mersea Road 19. The Respondents either own or lease this muck ground.

Some of the complainants reside at East Beach. East Beach is located immediately to the north of Marentette Beach.

The Board heard evidence that black muck subsides due to natural conditions when exposed to air. The amount of soil which disappears due to subsidence varies from year to year depending upon the weather and practices of individual farmers.

Black muck is composed of fine particles which are prone to blowing off the fields. Dry muck soil can commence drifting in breezes as low as 15 kilometers per hour, while a high wind causes large dust storms to arise.

CONCERNS OF THE APPLICANTS

Several of the Applicants provided evidence. The witnesses included residents of both Marentette Beach and East Beach. The video tape, pictures and oral evidence of the witnesses vividly detail the problems endured by the Applicants as a result of blowing soil.

During significant wind storms from the west or southwest, the wind blows across the Pelee peninsula from Lake Erie. The peninsula is only approximately five kilometers wide at this point and it does not act as a significant wind break. the wind picks up the muck soil as it crosses the fields and sends clouds of black dust billowing over the dyke. The dirt is deposited in the canal, on the properties of the Applicants or into Lake Erie.

The fine particles of dust are more than merely unsightly when deposited on the Applicants' properties. The dust particles are so fine that high winds force them through cracks in doors and around windows. The dust permeates garages, automobile engines and other equipment. It is difficult to clean the dirt and it is very unpleasant to be outside while the dirt is blowing.

The Applicants also produced evidence suggesting that the dust may be hazardous to their health. Christine Pinard lives with her grandson Joelle who appears to suffer a reaction following major dust storms. Mrs. Pinard described how Joelle becomes very congested following a major wind event. He experienced seven attacks of this congestion between July, 1995 and February, 1997 for which medication was purchased. Mrs. Pinard indicated that the physician treating Joelle has not made a diagnosis, but the attacks of severe congestion only occur following a major wind storm.

Colleen Dietz presented samples of blowing dirt which had been tested by a laboratory. Ms. Dietz also filed as an exhibit a publication by Health and Welfare Canada indicating that some of the dust particles presented by Ms. Dietz would be hazardous when inhaled by humans.

The Applicants testified that the most recent severe wind storms occurred in July, October and December, 1995, February, 1996 and January 20, 1997. There have been numerous other occasions in which less severe winds blew dust on the Marentette Beach and East Beach properties.

WHETHER THE APPLICANTS ARE AGGRIEVED

Section 5 of the Farm Practices Protection Act permits a person who is "aggrieved" by any odour, noise or dust resulting from an agricultural operation to apply to the Farm Practices Protection Board for a determination as to whether the odour, noise or dust results from a normal farm practice. Accordingly, the initial issue for determination by the Board is whether the Applicants are aggrieved by dust from the Respondents' fields.

It is not necessary for the Board to make a conclusive determination as to whether the dust is actually hazardous to human health. We specifically refrain from making such a finding because it is unnecessary. The Applicants are entitled to have the practices of the farmers reviewed by the Board if they prove they are aggrieved and it is not necessary for the Board to go further with this issue if we conclude that the Applicants are aggrieved.

The Board has no difficulty in concluding that the Applicants are aggrieved. The obvious problems caused by the dust blowing onto the properties and into the homes of the Applicants, together with a genuine concern that the dust may be hazardous to human health lead the Board to conclude that the Applicants are aggrieved and are entitled to have the Board determine whether the practices of the Respondent farmers are "normal" farm practices.

EXPERT EVIDENCE

The Board summoned Dr. Mary Ruth McDonald and E. Anne Verhallen pursuant to Section 5(6) of the Farm Practices Protection Act to provide assistance to the Board. The Board concluded that these individuals are qualified to provide expert evidence with regard to the issues in this Application.

Dr. McDonald is the chief scientist at the Muck Research Station of the Ontario Ministry of Agriculture Food and Rural Affairs (IIOMAFRA"), located in the Holland Marsh, near Bradford. She provided assistance to the Board with regard to practices of farmers utilizing muck soils in Ontario. She is especially familiar with the Holland Marsh which is the largest muck soil area in the Province.

Ms. Verhallen is a soil management specialist in horticultural crops employed by OMAFRA. She has worked extensively with the farmers utilizing muck soils in Mersea Township and she is familiar with the development of some practices currently utilized by those farmers.

Dr. McDonald and Ms. Verhallen advised the Board of the natural subsidence which occurs when muck soils are exposed to air. With the best of management practices, the soil will slowly disappear and once the muck soil is gone, the underlying clay will not produce crops with the value of the vegetables grown in muck soil.

Accordingly, farmers have a financial interest in the preservation of the soil and the reduction of soil loss.

The loss of soil in dust storms has been recognized as a significant problem in muck soils for many years. The problem may be somewhat greater in Mersea Township than in other muck soil areas of Ontario because the muck in Mersea Township has particles which are finer than the muck soils in other marsh areas. The particles are therefore more susceptible to wind. Additionally, other marsh areas are not as exposed to the wind as the properties operated by the Respondents.

Ms. Verhallen testified that she worked extensively in Mersea Township between 1988 and 1991. She has continued to have some involvement with the farmers in Mersea Township to the present time. Ms. Verhallen became involved with the Mersea Township muck farmers following a severe wind storm in 1988. She worked with local farmers to develop soil conservation measures.

Due to the southerly location of Mersea Township, the muck farmers in that area are able to plant their crops several weeks earlier than farmers utilizing muck soils in other parts of Ontario. The early planting dates provide a very important marketing advantage to farmers in Mersea Township as the first vegetables produced in Ontario tend to command a premium price early in the harvest season. One disadvantage of the early planting dates in Mersea Township is that land may be harvested in the middle of summer and may lie in a bare, exposed state to the wind during a time of year when the soil is dry and more susceptible to wind.

Both experts testified about interseeding, which is a practice in which farmers seed a cover crop of oats, barley or rye before planting vegetables. The interseeded crop grows quickly and prevents a great deal of wind loss during the early weeks of the spring season. The interseeded crop is killed with a herbicide after the vegetables grow to a level where they are able to hold the soil. Both experts testified that the practice of interseeding is an effective way of minimizing the loss of soil caused by wind between the dates that the interseeded cereal crops germinate and the date that the vegetables are harvested.

Ms. Verhallen testified that spring interseeding was a new concept when she worked extensively in Mersea Township between 1988 and 1991. By 1991, approximately 25% of the muck soils in Mersea Township were planted with the interseeding practice. Interseeding in Mersea Township has become more common in recent years and most of the crops in the area are now planted with the interseeding practice.

Dr. McDonald testified that approximately 80% of the Holland Marsh is planted with the interseeding method. The farmers who do not use interseeding in the Holland Marsh have avoided that practice because they are situated in areas where the loss of soil from wind is not a significant threat.

The use of spring interseeding has been so successful that many of the Mersea Township farmers no longer need to purchase crop insurance. Ms. Verhallen indicated that spring losses from wind storms prior to the use of interseeding were so serious that the Ontario Crop Insurance commission was considering a policy of refusing to provide spring reseeding coverage to the muck soil farmers in Mersea Township. The cost of spring interseeding is estimated at $100.00 per acre and it appears to be money well spent by the farmers. Both experts testified about other techniques which have been tested in efforts to reduce the loss of wind blown soil in Ontario muck farms. These techniques are:

1. The use of trees as wind breaks.

Ms. Verhallen testified that hybrid willows were planted along the edge of Mersea Road 19 and Mersea Concession D in an effort to reduce wind damage by reducing the velocity of the wind crossing the muck soils. The technique has had limited success at best. The Applicants do not believe that the wind breaks are effective based upon their experiences living in Mersea Township. Ms. Dietz advised the Board that she was not seeking an Order directing further wind breaks because of her belief that the existing ones were ineffective.

Wind breaks pose other problems. If planted in the middle of fields, they will use valuable acreage which would otherwise be devoted to crops. They remove nutrients from the soil. They reduce production because they can provide excessive shade to crops. They may harbour pests which damage vegetables.

The Board does not find that the use of wind breaks is a normal farm practice which is mandatory for farmers utilizing muck soils in this locality. However, the planting of further wind breaks along the edges of roads may provide some degree of assistance to the Applicants.

2. The use of overhead irrigation.

Overhead irrigation equipment has proven to be of no practical benefit for dust control in Ontario.

A farmer must know when a wind storm is likely to occur and thoroughly soak the ground before the wind arrives in order to prevent soil loss.

Farmers often do not have enough notice of impending wind and it is not practical for farmers to maintain enough irrigation equipment to thoroughly saturate their entire properties over a very short period of time.

3. The use of subirrigation.

A small percentage of the muck soils in the Holland Marsh are equipped with drainage systems which permit farmers to put water into the ground through the underground tiles. This water is then available for use by growing plants.

This practice is not useful for the reduction of wind blown soils because the top layer of soil is not saturated with water through this practice and it remains dry. The soil is therefore subject to wind loss.

4. The use of fall ploughing.

Fall ploughing is an appropriate practice for muck soils. Ploughing the soil every two or three years can reduce the presence of some pests in the soil. Ploughing also has the benefit of raising larger particles of muck and chunks of peat to the surface. These larger particles are less likely to blow in wind than the finer particles which are created at the surface by the processes used to grow and harvest crops.

5. The use of a fall cover crop.

Some muck soil farms use fall cover crops in an effort to reduce the- loss of soil to wind.

Approximately 15-20% of the farmers in the Holland Marsh are utilizing this practice on some of their land. Some of the farmers in Mersea Township use fall cover crops and Daniel Bigras testified that he has extended the use of a fall cover crop in 1996-97 by not ploughing the cover crop in late fall.

The use of a fall cover crop has potential to benefit both the Applicants and the farmers as both sides in this dispute will benefit from practices which reduce the loss of wind blown soil. However, there are limitations to the practice. It is often too dry in mid summer to plant a cover crop in Mersea Township. The cover crop will not germinate in the absence of rain. If the fall cover crop grows too tall, it may leave residue after it is ploughed and tilled. The residue will damage the efforts of farmers to plant crops because they must use precision seeding techniques for vegetables.

Most of the farmers who use fall cover crops in Mersea Township have ploughed them in the fall. The cover crops therefore provide resistance to wind from the time they germinate until the time they are ploughed and bare soil is then exposed during the late fall and winter. Daniel Bigras has in effect experimented by not ploughing under his cover crop and he testified that he does not know whether he is going to suffer a crop loss from the presence of too much residue. However, the use of the fall cover crop and the decision not to plough it appears to have reduced soil loss in the winter of 1996-97 as the evidence of the Applicants indicated that there was less dust blowing from the property of Mr. Bigras than from the other muck farms.

Ms. Verhallan suggested that the use of a cover crop which is ploughed in the fall could not be characterized as experimental at this time. She suggested that the practice is at the "fine tuning" stage. Work is being done in research plots with this technique aid farmers are also attempting to utilize it:

EVIDENCE OF DANIEL BIGRAS

Mr. Bigras owns or rents in excess of 200 acres of muck soil. He is aresident of Marentette Beach during the summer. The Board was impressed with the willingness of Mr. Bigras to use innovative farming. practices in an effort to save his soil and to reduce the problems confronted by the Applicants.

Mr. Bigras begins to plant radishes as early as mid March. Radishes do not require spring interseeding because they grow quickly to a size where they can hold the soil. The radishes are harvested in May and carrots are then immediately planted on the same land. Interseeding is utilized with the carrots. The carrots are harvested in October and it is usually too late in the year for a fall cover crop to be utilized.

Mr. Bigras also plants onions with an interseeded crop in mid April. The onions are harvested in early August. It is often too dry to plant a fall cover crop at that time, but if the weather permits, Mr. Bigras believes that the use of a fall cover crop is effective and he will plant one.

As mentioned earlier, Mr. Bigras is experimenting with a technique that goes beyond planting a cover crop in the fall and ploughing it under before the land freezes. Mr. Bigras believes that his decision to leave the cover crop over the winter has saved his soil to some extent, but he will not know whether that practice is appropriate until he learns in the spring of 1997 whether this new practice is going to create problems with planting that have a significant economic impact.

Mr. Bigras also believes in fall ploughing every two or three years in order to raise chunks of peat and larger particles of muck to the surface.

EVIDENCE OF SYDOR PLATSCO

Mr. Platsco has been farming muck soil in Mersea Township for over 20 years. He testified with regard to his practices and the identical practices of Tom Platsco. Sydor Platsco and Tom Platsco share labour and equipment.

Mr. Platsco has witnessed entire seed beds which were destroyed by spring wind storms. He is conscious of the need to reduce the loss of muck soil which is currently worth approximately $10,000.00 per acre.

The Platscos have tried numerous methods of minimizing soil loss. They worked closely with Anne Verhallen when these practices were being developed.

Sydor Platsco believes that spring interseeding has been a very successful practice. He plants carrots and onions. He utilizes spring interseeding with both crops and believes that the practice is now-almost universal in Mersea Township muck soil.

The Platscos plant carrots in early April which are harvested during the hot dry weather in summer. It is often not possible for a cover crop to germinate in the very dry soil conditions that can occur in summer.The Platscos have started to use fall cover crops where practical with carrots.

The Platscos plant onions during the month of April. They plant several varieties which mature between early August and late October. Fall cover crops are not used with the onions because the last onions are harvested after it would be possible to plant a summer crop. The Platscos plant small plots of different varieties of onions and the later varieties tend to act as a wind break for the small bare strips of onions which are harvested early in the season.

The Platscos believe that the soil needs to be turned every two or three years and they use fall ploughing to bring large particles of dirt to the surface and to assist with the reduction of pests in the soil.

OTHER RESPONDENTS

John Tatomir appeared late in the morning of March 10, 1997. He interrupted the proceedings to state that he had some pictures as evidence and that he couldn't stay because he had medical appointments scheduled on March 10, 11 and 12.

The Board declined to permit Mr. Tatomir to file his pictures as the timing of Mr. Tatomir's interjection would have been prejudicial to the presentation of Ms. Dietz and the other Applicants. We advised Mr. Tatomir that we would be prepared to accommodate his situation by hearing his evidence at a time which did not interfere with his medical appointments. Mr. Tatomir declined this offer.

The Board notes that Mr. Tatomir was served with notice of the hearing in early January. The dates for the hearing were scheduled at a pre hearing conference which occurred in November, 1996. At no time did Mr. Tatomir advise that Board's secretary of any conflicting appointments. The Board therefore proceeded in the absence of Mr. Tatomir.

The remaining Respondents, Andre Bigras, Fred Bihun, Claude-Lavoie and Casilco Corp. did not appear.

An Affidavit sworn by Michael Toombs, Secretary to the Board was entered as Exhibit 1. Mr. Toombs states in his Affidavit that all Respondents were served by regular and registered mail with notice of the hearing. The Board accordingly proceeded in the absence of these Respondents.

POSITION OF THE APPLICANTS

The Applicants candidly recognize that they are living beside a significant agricultural area and that they will inevitably face some level of annoyance from the Respondents' farms. The Applicants do not object to the noise or light which are part of the normal summer irrigation practices of the Respondents. The Applicants also realize that they are going to be exposed to some blowing soil because there is a consensus among the parties that it is impossible to totally eliminate blowing soil from muck farms.

The Applicants quite reasonably request nothing more than the use of practices by the Respondents which will minimize the blowing dirt.

POSITION OF THE RESPONDENTS, DANIEL BIGRAS. SYDOR PLATSCO AND TOM PLATSCO

These Respondents clearly realize the importance of preserving their valuable muck soil. Current land values of $10,000.00 per acre will drop dramatically when the muck eventually disappears and these farmers recognize the importance of utilizing techniques which conserve soil.

These farmers are prepared to use innovative techniques in addition to normal farm practices in order to minimize blowing dirt.

POSITION OF OTHER RESPONDENTS

The Board is somewhat concerned that it may have heard from only those Respondents who are prepared to use innovative farm practices in an effort to prevent soil loss. The Board is disappointed that the other Respondents chose not to appear.

However, the Board is satisfied that it has received sufficient evidence from the Respondents who did appear, the Applicants and the experts to make an appropriate order regarding normal farm practice.

CONCLUSIONS REGARDING NORMAL FARM PRACTICE

After considering the oral evidence and the Exhibits, the Board concludes

as follows with regard to the various potential farm practices:

Spring interseeding of onions and carrots is a normal farm practice which must be followed by all Respondents in order to conserve soil and reduce the effect of wind blown dirt. The use of spring interseeding with radishes is not a necessary or normal farm practice due to the manner in which radishes grow.

One of the benefits of fall ploughing every two or three years is to raise larger particles and chunks of soil to the surface where they assist with the preservation of soil and reduction of blowing dirt. Fall ploughing in this fashion is a normal farm practice.

Sub-irrigation of soil is not a normal farm practice and it is not necessary for the Respondents to utilize this practice in an effort to reduce blowing soil.

The Applicants did not request an order requiring wind breaks as the Applicants believe they are ineffective. The use of wind breaks has not been demonstrated to be an effective practice for the reduction of blowing soil in this situation. However, the Board suggests that the existing wind breaks should be maintained and perhaps even expanded as they may provide some small amount of relief to the Applicants. The Board is not stating that wind breaks are never effective. our findings are limited to the evidence before us in this situation.

The Board struggled to arrive at a conclusion with regard to the use of a fall cover crop. The Board concludes that the use of fall cover crops

Overhead irrigation of soil is not a normal farm practice and it is not necessary for the Respondents to utilize this practice in an effort to reduce blowing soil which are tilled beneath the soil in late fall is a practice which should be encouraged for the benefit of the farmers who may preserve their soil and the Applicants who may be exposed to less blowing dirt.

However, the Board concludes that this practice has not yet reached a level where it can be regarded as a normal farm practice in Ontario and the Board therefore does not believe that it is appropriate to order farmers to utilize the practice at this time.

The Board does wish to emphasize to the parties that the use of a fall cover crop may develop into a normal farm practice in the near future. The Respondents should be aware that if the use of a fall cover crop does become a normal farm practice, then the Board would be prepared to order all of the Respondents to utilize this practice in the event that the Applicants proceed with a further application before the Board. The Applicants would presumably lead evidence at any such future hearing to the effect that use of fall cover crops which the Board is encouraging at this time has developed into a normal farm practice.

SUMMARY AND ORDERS

The Board wishes to express its sympathy for the Applicants. They have taken a reasonable position with regard to the blowing dirt and are to be commended for the presentation provided by Ms. Dietz. However, the evidence suggests that most of the muck soil farmers in Mersea Township are currently using normal farm practices and that the blowing dirt endured by the Applicants is a result of practices which are properly described as normal farm practices at this time.

The authority of the Board is to dismiss complaints when the Board is of the opinion that the dust has resulted from a normal farm practice. In the event that the dust has resulted from a farm practice which is not a normal farm practice, then the Board may order the farmers to cease the improper practice or to modify the practice to be consistent with normal farm practice.

The Board therefore orders as follows:

1. The practices of Daniel Bigras are in accordance with normal farm practice. The Application against him is therefore dismissed.

2. The practices of Sydor Platsco and Tom Platsco are in accordance with normal farm practice. The Application against them is therefore dismissed.

There was no evidence that Casilco Corp. actually carries on the business of farming. It is a land owner which leases property to other Respondents in this Application. Accordingly, the Application against Casilco Corp. is dismissed.

The remaining Respondents are: Andre Bigras, Fred Bihun, John Tatomir and Claude Lavoie. Because these Respondents did not provide evidence to the Board, we are unable to conclude whether these Respondents are creating excessive amounts of dust as a result of a failure to adhere to normal farm practices. Accordingly, the Board is not prepared to dismiss the Application against these Respondents.

The Board believes that it is appropriate in the interests of soil conservation and in reducing the blowing dirt problem of the Applicants to ensure that these Respondents are ordered to following current normal farm practices. Accordingly, if these Respondents or any corporation or partnership farm enterprises with which they are associated do not use spring interseeding with carrots and onions or periodic fall ploughing, they are ordered to commence these practices in 1997 to be consistent with current normal farm practice