ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Stein v Tiessen 2002 ONNFPPB 20

DATE OF DECISION: 2002-08-15

2001-03

STATUTE: Farming and Food Production Protection Act 1998

HEARING:

BETWEEN: Jim Stein – Applicant and Dan Tiessen and 1461655 Ontario Limited – Respondent

REASON FOR HEARING

This hearing resulted from a complaint by the Applicant pertaining to alleged disturbances in the form of odour, flies, dust, and noise resulting from the farming operations of the Respondent agricultural operators.

BACKGROUND

The Applicant initiated this Application through a letter dated June 18, 2001 forwarded to the Normal Farm Practices Protection Board. Prior to this Hearing there had been a Pre-Hearing Conference conducted in Leamington on July 23, 2001. A Pre Hearing Conference Order was made by Ted Oldfield, the then Chair of the Normal Farm Practices Protection Board. For the purposes of this Decision, the relevant part of the Order was an acknowledgement by Mr. Martini on behalf of the Respondents, that the agricultural operation of the Respondent Dan Tiessen does create a disturbance as defined by the Farming and Food Production Protection Act, 1998 (the “Act”). Mr. Martini also acknowledged that the farm operation of the Respondent Dan Tiessen is an “agricultural operation”, as defined by the Act and accordingly the Respondents would not be advancing arguments to challenge the jurisdiction of the Board to adjudicate this matter.

Likewise, at the commencement of this Hearing, the Applicant Mr. Stein acknowledged that the farm operation of the Respondent, Dan Tiessen is an “agricultural operation” as defined by the Act and accordingly the Applicant would not be advancing arguments to challenge the jurisdiction of the Board to adjudicate this matter.

SUBJECT OF THIS HEARING

The subject of this hearing is the transportation, storage, spreading and incorporation of liquid and solid wastes on the land owned by the Respondent agricultural operator Dan Tiessen and the determination of whether the resulting disturbances to neighbours in the form of odour, flies, noise and dust are the result of normal farm practices.

APPLICANT

Jim Stein, the Applicant in this matter, resides in a residence located approximately one mile East of the Tiessen farm. At this hearing, Mr. Stein, as Applicant, represented a number of residents who reside in the close proximity to the Tiessen farm whose interests were stated to be identical to those of Mr. Stein.

RESPONDENT

The Respondent, Dan Tiessen, carries on a cash crop farm operation at 714 County Road 34 East (Old Highway 3), on a parcel of land consisting of approximately 31 acres. Mr. Tiessen purchased the property in November 2000. The only building on the 31 acre parcel of land is a small wood-frame shed.

The Respondent 1461655 Ontario Limited is a private Ontario Corporation and one part of the business carried on by 1461655 Ontario Limited is the spreading and incorporation of liquid and vegetable waste products on agricultural land. Dan Tiessen is a principal shareholder of the Respondent 1461655 Ontario Limited.

The Respondent Dan Tiessen is a principal shareholder and operator of Erie Environmental Services Inc., a private Ontario Corporation, which provides waste disposal services in the Leamington area.

FARMING AND FOOD PRODUCTION PROTECTION ACT, 1998.

The Farming and Food Production Protection Act, 1998 (the “Act”) provides the statutory framework for this application. The sections of the Act which are relevant to this application are:

Section 1

Section 1 of the Act states that “normal farm practice” means a practice that

(a) “Is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances”, or

(b) “makes use of innovative technology in a manner consistent with proper advanced farm management practises .”

Section 2 (1) provides that:

“A farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practise.”

Section 5(1)

Section 5(1) provides that,

“A person directly affected by a disturbance from an agricultural operation may apply to the Board, in a form acceptable to it, for a determination as to whether the disturbance results from a normal farm practice.”

OPERATION OF THE RESPONDENT

The agricultural operation of the Respondent, Dan Tiessen, is located in the municipality of the Town of Leamington in the County of Essex and consists of approximately 31 acres of tillable land located at 714 County Road 34 East (Old Highway 3), five miles East of Leamington, on which land Mr. Tiessen grows agricultural crops.

Mr. Tiessen, by agreement with Erie Environmental Services Inc. accepts delivery at the Tiessen farm property of a wide range of vegetable wastes including but not limited to cull potatoes, cull onions, squash and peppers together with certain liquid wastes both treated and untreated. The waste is spread on part of the land owned by Mr. Tiessen and also on other land not owned by Mr. Tiessen for the stated purposes of improving the soil quality and improving crop production.

The Tiessen property serves as a central receiving and storage location for the said waste which is subsequently spread on a 22 acre portion of the 31 acre parcel of the Tiessen land and on four (4) other parcels of land which are located in close proximity to the Tiessen land. The five parcels of land together constitute a total area of approximately 122 acres (the Land Pool). The owners of the other four parcels of land which together with the Tiessen land make up the Land Pool permit these waste products to be applied to their land by agreement with Dan Tiessen.

After being unloaded at the Tiessen farm, the waste is either spread immediately or stacked in piles until spread on the land, following which, the land is worked by disc to incorporate the waste into the soil. Except for the delivery of the waste to the Tiessen property, Erie Environmental Services Inc. has no involvement in the agricultural operation of the Respondent, Dan Tiessen. The spreading and incorporation of the waste on the Tiessen land and the other land in the Land Pool is completed by the Respondent, 1461655 Ontario Limited by agreement with Dan Tiessen. Aside from applying the waste to the land, the Respondent 1461655 Ontario Limited is not involved in the agricultural operation of the Respondent Dan Tiessen.

The Respondent Dan Tiessen relies on custom operators for certain aspects of producing and harvesting the crops produced on the Tiessen land.

POSITION OF THE PARTIES

APPLICANT

The Applicant, Mr. Stein submitted that the methods used to transport, store and incorporate liquid and vegetable wastes, both treated and untreated on the Tiessen land, do not constitute normal farm practices because:

1. The quantities of untreated waste applied to the land exceed the amounts recommended in the O.M.A.F.R.A. Protocol, and the amount of treated waste exceeds the amounts permitted in the Certificate of Approval issued by the Ministry of Environment.

2. In addition to the types of untreated waste anticipated in the O.M.A.F.R.A. Protocol and treated waste anticipated in the Certificate of Approval, the Respondent dumped many truckloads of refuse, including vines, twine, plastic, styrofoam and cement blocks on the Tiessen land thereby using the land as a landfill site. These types of refuse could be of no possible benefit to the soil and its use was inconsistent with the carrying on of normal farm practices.

3. The excessive quantities of waste applied to the subject land rendered impossible the growing of field crops in a manner consistent with normal farm practices.

4. Vegetable waste, consisting of onions, squash, peppers, potatoes etc., when transported to the Tiessen farm is stored in large piles and left for days or weeks before being incorporated into the soil, resulting in unbearable odours and the accumulation of excessive amounts of flies, seagulls and maggots.

5. The Respondent Dan Tiessen contributed to the creation of farm practices which could not be considered normal by allowing the waste to be delivered to the Tiessen property late at night over a dusty entrance road in such a way as to create disturbances in the form of excessive noise and dust.

RESPONDENT

On behalf of the Respondent, Mr. Martini submitted that:

1. It is normal farm practice to apply treated and untreated waste to agricultural lands for the purposes of increasing the nutrients in the soil and improving the soil quality.

2. The untreated waste was applied in conformity with the O.M.A.F.R.A. Protocol and the treated waste was applied pursuant to the Certificate of Approval issued to the Respondent Dan Tiessen for a portion of the Tiessen farm by the Ministry of Environment.

3. The methods used to transport, store, spread and incorporate the waste were consistent with normal farm practices.

4. The Respondents used their best efforts to reduce any disturbance resulting from the delivery, storage and incorporation of the waste and acted at all times in a manner consistent with normal farm practice. Any resulting disturbances are unavoidable consequences of the normal farm practice of using liquid and vegetable waste to improve the quality of farmland.

EVIDENCE

WITNESSES CALLED BY THE APPLICANT

Mark Rogers

Mark Rogers is the Factory Manager for Olmstead Foods. He testified that during the years 2000 and 2001, Erie Environmental Services Inc. was contracted by Olmstead Foods to transport waste products produced by plant operations. He stated that the waste products being hauled by Erie Environmental Services Inc. from Olmstead Foods consisted of vegetable waste, batter from onion rings or waste water treatment (wet sludge).

Mr. Rogers identified the source and described the different kinds of waste. He confirmed that all of these waste products are untreated. He stated that the waste is picked up at the Olmstead facility and weighed prior to leaving the premises.

The total weight of each type of waste product hauled by Erie Environmental Services Inc. from Olmstead Foods was recorded for the one year period commencing November 1, 2000 and ending October 30th, 2001. The weights were detailed by Mr. Rogers on a monthly basis.

The total of all waste hauled by Erie Environmental Services Inc. during the one year period was 18, 391.6 tonnes.

Mr. Rogers testified that he did not know the final destination of any of the waste. He stated that he had no knowledge whether or not any of the waste was delivered to the Tiessen property.

A detailed nutrient breakdown of the waste was reviewed by Mr. Rogers (See Exhibit #1)

John Landshout

John Landshout is the Operations Manager of Family Tradition. He testified that Erie Environmental Services Inc. was contracted by Family Tradition to haul waste from Family Tradition processing facilities during 2001. The waste product hauled consisted of slurry, bailor juice and filter cake. He identified the source and described the different kinds of waste. Bailor juice is mostly liquid and is untreated. Slurry is treated waste. Both slurry and bailor juice, he said, are hauled by tanker.

Mr. Landshout provided a monthly breakdown of the weight of each kind of waste hauled by Erie Environment Services Inc. from the Family Tradition facility in 2001. The total weight of all waste hauled was 16,017 tonnes of which the largest component was bailor juice, totalling 10, 642 tonnes. Mr. Landshout testified that he did not know the destination of the waste and specifically did not know if any of the waste had been delivered to the Tiessen farm.

Mr. Landshout’s evidence was that a Certificate of Approval was required for the treated waste and he understood that Mr Tiessen had been issued a Certificate of Approval by the Ministry of Environment.

Helmet Spieser

Mr. Spieser is an Engineer employed by O.M.A.F.R.A. at Ridgetown, Ontario. Mr. Spieser testified that he had visited the farm of Dan Tiessen at 720 Essex Road 34 East, formerly Highway 3, as a result of concerns expressed by neighbours regarding the stockpiling and storage of waste materials on the land.

Mr. Spieser testified that in May of 2001, he had asked Mr. Tiessen for records to confirm the total number of tonnes of waste being applied to the Teissen land as well as the other land in the Land Pool. He received some records from Mr. Tiessen on November 19, 2001. He stated that he did not know why it took Mr. Tiessen so long to respond to his request for the records. It was the evidence of Mr Spieser that Mr. Tiessen’s records which showed the total tonnage of waste being applied, did “not exactly” agree with the record of tonnage hauled from the Olmstead and Family Tradition facilities as supplied by the previous witnesses, Mr. Rogers and Mr. Landshout. Mr. Tiessen’s records showed that the total weight of waste being applied to the Land Pool properties in some months was higher and in some months was lower than stated by Mr. Rogers and Mr. Landshout.

Mr. Spieser testified that the maximum application rate for untreated waste according to the Protocol was 150 tonnes per hectare or 66.9 tonnes per acre. According to the records supplied to Mr. Spieser by Mr. Tiessen, the application rate on the Land Pool property for the period from January 1 to October 15, 2001, had been 63.6 tonnes per acre. He testified that although he had asked for a breakdown of the waste applied to the land owned by Mr. Tiessen, he did not receive that breakdown. He was advised by Mr. Tiessen that Mr. Tiessen had no record of the application rates on individual parcels of land within the Land Pool.

During cross-examination Mr. Spieser testified that he was advised by Mr. Tiessen that waste was being spread evenly on 122 acres of land. He was also advised by Mr. Tiessen that all of the waste that was delivered to the Tiessen farm was subsequently spread on all lands in the Land Pool except for the treated waste from Family Tradition which was only applied to 22 acres of the Tiessen farm. He identified the Tiessen land as the portion coloured green and marked with the letter “A” on “Exhibit 2". He confirmed that the waste was being spread only on the back 22 acres of the Tiessen land. He identified the land in the Land Pool as being the parts lettered A, B, C, and D on “Exhibit #2" together with another parcel of land which is not shown on Exhibt #2.

He stated that together the acreage in the Land Pool was approximately 122 acres. It was the opinion of Mr. Spieser that the practice of applying treated and untreated waste to agricultural land is common practice in Ontario. It is encouraged because it can increase the water-holding capacity of the soil and increase the organic matter. He testified that many farmers are willing to accept such waste because it is one way to increase crop production. He stated that the application of untreated waste does not require a Certificate of Approval but does require compliance with the O.M.A.F.R.A. Protocol. It was his opinion that the Protocol outlines in good detail how untreated waste should be applied to agricultural land.

Mr. Spieser confirmed that he had visited the Tiessen farm on more than one occasion and he had not on any of those occasions witnessed any breaches of the Protocol. The separation distance to neighbouring residences required by the Protocol were being exceeded by Mr. Tiessen. During re-examination, Mr. Spieser acknowledged that:

1. Soil samples were not taken because experts advised Mr. Spieser that such samples would not tell how much waste had been applied.

2. Run-off from sewage should be blocked from any water course. In the case of the Tiessen property, the distance from the storage area to the ditch is approximately 1000 feet and it was his opinion unless there were major rains, the run-off would absorb into the sandy soil and not reach the ditch.

3. There is nothing in the Protocol which distinguishes between wet and dry tonnage in terms of application rates.

4. Mr. Spieser was not aware of any soil samples having been taken.

Chris Gibson

Chris Gibson is employed by the Ministry of Environment at the Windsor office. He testified that he received a complaint regarding the storage of waste at the Tiessen farm in the summer of 2000. He stated that he did not attend at the property right away because he understood the waste being spread was not chemically altered and as untreated waste, it was under the jurisdiction of O.M.A.F.R.A.

Mr. Gibson testified that the Ministry of Environment had issued a Certificate of Approval to Dan Tiessen to allow for the spreading of treated waste from Family Tradition on 22 acres of the 31 acres owned by Dan Tiessen (See Exhibit # 4).

Mr. Gibson testified that following the first complaint, he received a further complaint that large amounts of plastics, cardboard, tomato vines and plastic clips had been dumped along the west side of the Tiessen property. As a result of this complaint, he attended at the Tiessen farm and formed the opinion that the storage of such waste on the property was a violation of the provisions of the Environmental Protection Act in that the farm was being used as an illegal landfill site. Accordingly, on January 30th 2001, Mr. Gibson issued an Order requiring Mr. Tiessen to remove the said waste prior to the end of March 2001. Mr. Gibson confirmed that Mr. Tiessen complied with the order and removed approximately 98% of the material within one month following the date of the Order. A subsequent visit to the farm by Mr. Gibson confirmed that the material had “essentially all” been removed.

Mr. Gibson testified that the jurisdiction of the Ministry of Environment extends to treated waste and not untreated waste. He stated that Mr. Tiessen was trucking treated waste consisting of slurry from Family Tradition to the Tiessen property which he identified as the parcel marked in green and lettered “A” on Exhibit 2, property for which a Certificate of Approval had been issued by the Ministry of Environment. He testified that Tiessen had complied with that Certificate of Approval and that the complaint which resulted in the order January 30, 2001 was a one-time occurrence.

During cross-examination by Mr. Martini, Mr. Gibson testified that:

1. When an applicant applies for a Certificate of Approval, it is up to the applicant to get soil analysis for the property.

2. Waste material should be worked into the ground within 48 hours after spreading.

3. A Certificate of Approval lasts for 5 years.

Todd Pepper

Todd Pepper is the Regional Manager of the Essex-Windsor Solid Waste Authority. He testified that Erie Environmental Services Inc. dumped waste at the Essex-Windsor Regional Landfill Site during the month of March, 2001. He reviewed the Authority records and compared the total tonnes of waste dumped at the Essex-Windsor Regional Landfill Site by Erie Environmental Services Inc. during the month of March, 2000 and the month of March 2001 (See Exhibit #5). He testified that the total for March 2000 was 210 loads or 1074.1 tonnes and for the month of March 2001 the total was 388 loads or 2637.54 tonnes. He stated that the significant increase in tonnage of waste in March 2001 over March 2000 could have been for any number of reasons which were not within his knowledge. He stated that there was a “flurry of activity” during March 2001, but he did not know if the increase was the result of the Order issued by the Ministry of Environment in January 2001, which Order required that the Respondent, Dan Tiessen, remove certain solid waste from the Tiessen property.

Brian Sweet

Brian Sweet is the Solicitor for the Corporation of the Town of Leamington. He testified that he has never attended at the Tiessen property and he does not know what crops were growing in the year 2001. Town Council and the By-law Enforcement Officer were advised of complaints received from neighbours with respect to the storage and spreading of waste at the Tiessen property. Mr. Sweet had been informed that waste material was being stored and spread on the property. He understood that if the waste was treated, Mr. Tiessen would require the authorization of a Certificate of Approval issued by the Ministry of Environment and if untreated it would be subject to the O.M.A.F.F.R.A. Protocol.

Mr. Sweet testified that the Town of Leamington spreads waste on farmland in the area.

The Town of Leamington Officials were, he said, of the opinion that the spreading of waste on the Tiessen property did not constitute a commercial operation.

Mr. Sweet confirmed that the Town of Leamington does not have a Nutrient Management By-law.

Frank Chesterfield

Mr. Chesterfield testified that his place of employment is located within eyesight of a portion of the land included in the Land Pool on which the Respondent, Tiessen, spreads waste. He identified the land as being coloured pink and labelled “B” on Exhibit #2. He stated that he did not see any waste spread on this land during the year 2001. He expressed his concern that Tiessen was not spreading waste on all of the 122 acres in the Land Pool and that some of the land was receiving too much waste and other parcels of land receiving none or very small amounts. It was opinion that if the waste had been spread on these properties he would have seen the equipment operating from his place of employment.

When cross-examined by Mr. Martini, Mr. Chesterfield acknowledged that waste could have been spread when he was not at work.

WITNESSES CALLED BY THE RESPONDENT

Dan Tiessen

Dan Tiessen testified that he is the registered owner of a parcel of land consisting of approximately 31 acres located at 714 Country Road 34 East (Old Highway 3), which he purchased in November 2000. He stated that it was his intention to grow cash crops on the subject land. He confirmed that he owns a tractor and a set of discs but that he relies on custom work supplied by neighbour farm operators to plant and harvest the crop.

Dan Tiessen testified that he is the principal shareholder and operator of Erie Environmental Services Inc., a waste disposal service business. He has operated the business for 10 years and for 5 years before that he helped his father in a similar business.

Mr. Tiessen stated that he is the principal shareholder of the Respondent 1461655 Ontario Limited, a Corporation engaged in the business of spreading and incorporating waste products which are trucked by Erie Environmental Services Inc.

It was Mr. Tiessen’s evidence that Erie Environmental Services Inc. had contracts to transport waste products from local food processing plants such as Olmstead Foods, Heinz Canada and Family Tradition. He distinguished between treated waste and untreated waste. Treated waste consists of slurry, which is liquid and is transported in tankers between mid-July and late August. A Certificate of Approval issued by the Ministry of Environment is required to permit the spreading of treated waste on agricultural land. He stated that a Certificate of Approval was issued to Dan Tiessen authorizing the application of treated waste, trucked from Family Tradition facilities, on 22 acres of the Tiessen Farm. (See Exhibit # 4) Mr. Tiessen reviewed the contents of Exhibit #7 which he stated was his record of the total weights of treated slurry trucked from the Family Tradition facility during the year 2001. It was his evidence that 2732.18 tonnes of that total was applied to a 22 acre portion of the Tiessen farm.

Mr Tiessen testified that the application of untreated waste to agricultural land is governed by a Protocol developed by O.M.A.F.R.A. The Protocol contains several recommendations for the handling and application of untreated waste. It recommends that the waste be incorporated into the soil within 72 hours of delivery to the site at a rate not to exceed 67 tonnes per acre per year and that there be no incorporation within 300 feet of a water course. He stated that all waste trucked from Olmstead Foods and Heinz Canada is untreated. He testified that the waste cannot always be incorporated within 72 hours of delivery to the site because the land may be frozen for days or weeks at a time. During the time when waste cannot be applied it remains stockpiled on the Tiessen property.

In describing the process used to handle the waste Mr Tiessen stated that all of the untreated waste trucked to the Tiessen farm is subsequently spread on a package of farm land totalling 122 acres which he referred to as a Land Pool. The Land Pool is made up of 5 different parcels of land owned by 4 individuals, of the 31 acres owned by Mr Tiessen only 22 acres are included in the Land Pool. All other owners of land in the Land Pool accept waste by agreement with Mr. Tiessen. All of the waste spread on the Land Pool properties is trucked to and unloaded at the Tiessen farm. All other Land Pool properties are easily accessible from that location. After the waste is unloaded, the spreading and incorporation of the waste on the various Land Pool properties is completed by the Respondent 1461655 Ontario Limited by agreement with Mr. Tiessen. The spreading and incorporation of the waste is supervised by Mr Tiessen’s father, who Dan Tiessen states is experienced in the handling of waste and the incorporation of the waste on agricultural land.

Mr. Tiessen reviewed the contents of Exhibit #6 which he stated is his record of the total waste trucked from Olmstead Foods during 2001 and in particular the total weight trucked to the Tiessen property to be spread on the Land Pool properties. The total weight of waste trucked was 16,700 tonnes and of that total 7860.04 tonnes was spread on Land Pool properties. He stated that the waste was applied evenly to the Land Pool properties resulting in an application of approximately 64 tonnes per acre. He emphasised that an application rate of 64 tonnes per acre was within the guidelines suggested in the Protocol. Mr. Tiessen further referred to Exhibit # 8 which he stated is his record of the total waste trucked from Heinz Canada. It also shows the final destination of that waste. He stated that none of the waste trucked from Heinz Canada was applied to Land Pool properties.

When questioned by Mr. Stein about the accuracy of the application rates, Mr. Tiessen testified that the manure spreaders are calibrated to apply 15 tons per acre per application and that all the lands in the Land Pool get four applications per year. He stated that the appropriate application rate is maintained by a combination of using an experienced operator, having good knowledge of the equipment and maintaining proper calibration of the manure spreader.

Mr. Tiessen confirmed that, on one occasion, fish had been dumped at the Tiessen property in error. He acknowledged that he had arranged for the dumping of certain greenhouse growing agents which contained plastic wraps and plastic clips. It had been his intention to separate the plastic and take it to the landfill and then to spread the growing agent on the land.

As a result of the Order issued by Mr. Gibson in January of 2001, all of the offending waste including the growing agent was trucked to the landfill site. In answer to a question from Mr. Stein concerning cement blocks which had been dumped on the Tiessen property, Mr Tiessen testified that the blocks were used as a base of the driveway which now provides access to the property.

Mr. Tiessen testified that the total number of truckloads of waste delivered to the Tiessen property daily would vary between 0 and 5, but he acknowledged when questioned by Mr. Stein that on some occasions more than 5 truckloads were delivered. He stated that he tries to avoid waste being delivered after 6 p.m. but on occasion, waste was delivered to the property late at night.

Mr. Tiessen confirmed that the total weight of treated waste applied was in addition to the approximately 64 tonnes per acre per year of untreated waste applied according to the Protocol. He stated that such additional application was permissible and does not violate either the Protocol or the Certificate of Approval even if the total application exceeds the recommendations contained in the Protocol.

Mr. Tiessen acknowledged that the stockpiling, spreading and incorporation of waste does cause a disturbance in the form of odours, dust and flies. He stressed that he has used his best efforts to reduce those disturbances and has attempted to incorporate the waste on a daily basis when weather and soil conditions permit. In an effort to reduce the disturbance to neighbours resulting from the storage and application of waste, he applied calcium to the driveway to reduce dust and he sprayed chemicals to kill flies. He testified that he does not spread waste on an 8 acre parcel of his land so as to increase the separation distance between the Tiessen property receiving the waste and the residences of the closest neighbours who might be affected by the resulting odour. The result is a separation distance of 1500 feet rather than the 300 feet required by the Protocol.

Mr. Tiessen testified that he has had discussions with O.M.A.F.R.A. staff concerning the installation of a cement pad at the Tiessen property on which the waste could be piled so as to reduce the waste water runoff. He stated that O.M.A.F.R.A. staff showed little interest in that proposal.

John Schleihauf

John Schleihauf, is the President of Agronomic Enhancements Inc., a Corporation whose goal is to develop and promote soil enhancement technologies for the agricultural sector. He is a Consulting Agronomist specializing in the recycling of waste materials on agricultural lands. He was qualified as an expert in the application of waste materials to agricultural land.

Mr. Schleihauf testified that the direct application of waste such as sewage bio-solids, fruit and vegetable solids, livestock manures and other waste to agricultural land is a long-standing farm practice in Ontario. He testified that guidelines were developed in the early 1970's by the province and they were upgraded in the 1980's. Pursuant to the guidelines, the application of sewage bio-solids and other waste to agricultural land is permitted by the Ministry of the Environment. The approval of the Ministry of Environment is in the form of a Certificate of Approval which approval applies to a specific parcel of land. He stated that since vegetable and fruit wastes are not treated, Protocols were developed for these wastes to allow them to be applied to land as soil conditioning agents. As such no Certificate of Approval is required by the Ministry of Environment for the application of these wastes if the Protocols are complied with.

Mr. Schleihauf testified that sewage bio-solids, fruit and vegetable solids and livestock manure improve the soil structure and enhance the water-holding capacity of the soil while at the same time adding organic matter. The application of such waste on farmland, he said, is popular with farmers.

Mr. Schleihauf’s testimony was that the Protocol included such guidelines as maximum annual tonnes of waste per acre which should be applied to the land, minimum separation distances from water courses, and minimum separation distances from residential dwellings.

Mr. Schleihauf stated that he was familiar with the Dan Tiessen farm operation. He knew that liquid and solid vegetable waste was trucked to the Tiessen farm and either incorporated at that location or on any one of the surrounding properties which together make up the Land Pool consisting of approximately 122 acres. He stated that vegetable waste is trucked to the site and dumped. The waste consists of such vegetable solids as onions, potatoes, squash, and peppers.

The vegetable waste is removed from the pile on the ground and loaded into a rear discharge manure spreader, spread on the land and incorporated into the soil by discing. The application rate is 15 tons per acre per application. He testified that he confirmed the calibration of the manure spreader to be 15 tons per acre and stated that he is familiar with such calibrations.

Mr. Schleihauf described the soil on the Dan Tiessen farm to be “quite sandy, a bit of a mixture, but largely sand”. “It is low in organic matter and a good candidate for improvement”.

It was his evidence that there was no build up of organic matter in the soil and the application of waste at the rate of 65 tons per acre per year would not be excessive. Over time, he said, the organic matter depletes if you stop applying waste and therefore it is desirable to regularly add organic materials to improve production.

It was the opinion of Mr. Schleihauf that odours are normally associated with the storage of, and application to farmland of vegetable waste. He referred to his experience in the Bradford Marsh area that waste onions produce bad odours which are offensive to people. It was his opinion that incorporating the waste within a reasonable period of time after it is spread is the best way to reduce the odour. He testified that maggots are commonly associated with onion and carrot waste and the outbreak can be minimized by burying the waste making it harder for the maggots to multiply.

He stated that the noise from trucks delivering the waste and dust from the truck traffic should be anticipated and that such disturbances are a normal by-product of the activity.

Mr. Schleihauf’s opinion was that the waste-handling activities at the Dan Tiessen farm were within the realm of normalcy so long as he continues to follow the Protocols. He stated that in his opinion, the Protocols were being followed at the Dan Tiessen farm.

REASONS FOR DECISION

THE ISSUES

1. Whether the Agricultural Operation of the Respondent Dan Tiessen created a disturbance, and

2. If so, whether the disturbance results from Normal Farm Practices.

1. WHETHER THE AGRICULTURAL OPERATIONS OF THE RESPONDENT DAN TIESSEN CREATED A DISTURBANCE.

At the Pre-Hearing Conference, Mr. Martini acknowledged on behalf of the Respondent Dan Tiessen, that the Agricultural Operations of Dan Tiessen do create a disturbance within the meaning of the Act. Based upon that acknowledgement, this Board finds accordingly.

There was no evidence presented at this Hearing to establish the type of disturbance complained of, the intensity of the disturbance or the extent to which the Applicant was directly affected by the disturbance. The neighbours who live in close proximity to the Tiessen farm who we would expect to have been most directly and intensely affected by the disturbance were not called as witnesses. The Board file contains certain allegations concerning the type, intensity and characteristics of the disturbance complained of but those allegations are not evidence until presented at this hearing through the mouths of witnesses. However, this Board previously held that disturbance is a threshold test within the Act, and once the threshold has been passed, the Applicant is entitled to have the practices of the Respondents reviewed by the Board.

Having decided that the Applicant is affected by a disturbance, the Board must now consider whether the disturbance is the result of normal farm practices as defined by the Farming and Food Production Protection Act, 1998. Subject to the principles outlined by the Court of Appeal in Pyke et al v. Tri Gro Enterprises Ltd et al (unreported O.A.C.docket C32764 August 3, 01), normal farm practices are protected and may continue even if they cause the Applicant to be adversely affected. If the practices are not normal farm practices, then this Board has authority to make orders which will bring the farm into compliance with normal farm practices or to order the owner of the agricultural operation to cease the practice causing the disturbance.

2. WHETHER THE DISTURBANCE RESULTS FROM NORMAL FARM PRACTICES

ISSUES CONSIDERED

i) WHETHER THE APPLICATION OF TREATED AND UNTREATED WASTE TO AGRICULTURAL LAND IS A NORMAL FARM PRACTICE

Based upon the unchallenged evidence of Mr. Schliehauf, it is the finding of this Board that the application of treated and untreated waste to agricultural land for the purpose of improving soil condition and productivity is a normal farm practice.

ii) WHETHER THE RESPONDENT WASTE HANDLING ACTIVITIES WERE IN COMPLIANCE WITH THE O.M.A.F.R.A. PROTOCOL FOR UNTREATED WASTE

The Board accepts the evidence of Mr. Spieser, the O.M.A.F.R.A. engineer called as a witness by the Applicant, that the O.M.A.F.R.A. Protocol governs the application of untreated waste on agricultural land and that the maximum application rate recommended in the Protocol is 66.9 tonnes per acre. The Board finds that the application rate of untreated waste on the Tiessen property during the year 2001 was within the limits recommended in the O.M.A.F.R.A. Protocol.

In reaching this conclusion, the Board was influenced by the evidence of Mr. Tiessen. We found Mr. Tiessen to be a credible witness who responded to questions in a forthright manner.

Some of Mr. Tiessen’s evidence was not corroborated but neither was it challenged in a credible way by any witness.(Mr. Chesterfield had expressed doubt that waste was being uniformly applied to all Land Pool property because from his place of employment from which location he could see part of the Land Pool property, he had not seen equipment spreading the waste during his hours of work.) We did not accept Mr. Chesterfield’s evidence as a challenge to the credibility of the evidence of Mr. Tiessen in that regard because Mr. Chesterfield by his own admission was not in a position to know if waste was being spread while his was not at work.

The evidence of Mr. Spieser regarding application rates did not corroborate the evidence of Mr. Tiessen because it was based entirely upon information which he had received from Mr. Tiessen. The evidence of Mark Rogers and John Landshout gave no guidance to application rates on the Land Pool property because both testified that they did not know the final destination of the waste, both treated and untreated, which was hauled from their respective plant facilities.

The only witness to testify who had direct knowledge of the application rates was Mr. Tiessen. His evidence briefly was that the untreated waste was applied uniformly over all Land Pool property by means of 4 uniform applications with the waste spreader calibrated at 15 tonnes per acre. Mr. Tiessen’s evidence regarding the calibration of the spreader was corroborated by Mr. Schliehauf who had checked the calibration when he attended at the Tiessen property. Mr. Tiessen testified that the total application of untreated waste on the Land Pool property was 64 tonnes per acre in 2001. We accept that evidence because it was unchallenged and because it was consistent with the documentary evidence.

We accept the evidence of Mr. Schliehauf that the soil of the Dan Tiessen farm is “quite sandy, low in organic matter and a good candidate for improvement”. We accept his evidence that the application of waste at the rate of 65 tonnes per acre per year would not be excessive and that, over time, the organic matter depletes if you stop applying waste so that it is desirable to regularly add organic materials to improve production.

iii) WHETHER THE RESPONDENT WASTE HANDLING ACTIVITIES WERE IN COMPLIANCE WITH THE MINISTRY OF ENVIRONMENT CERTIFICATE OF APPROVAL FOR TREATED WASTE

The uncontradicted evidence of the Applicant witness, Mr. Gibson was that the treated waste handling activities at the Tiessen farm were in compliance with the Ministry of Environment Certificate of Approval granted to Dan Tiessen for 22 of the 31 acres of the Tiessen property.

Mr. Gibson’s evidence was that the storage of refuse on the Tiessen property which had given rise to the Order of January 30, 2001 was a one-time occurrence. We therefore find that Respondent farm operator was in compliance with the Ministry of Environment Certificate of Approval.

iv) WHETHER THE RESPONDENT WASTE HANDLING ACTIVITIES WERE IN COMPLIANCE WITH O.M.A.F.R.A. PROTOCOL IN GENERAL

It was the evidence of the Applicant witnesses, Mr. Spieser and Mr. Gibson and of the Respondent witnesses, Mr. Schliehauf and Mr. Tiessen that the guidelines of the O.M.A.F.R.A. Protocol were being generally followed. These four witnesses had actually attended at the Tiessen farm and were able to observe the practices of the Respondent agricultural operator. The unchallenged evidence of all four witnesses was that the separation distance between areas where waste was being spread and closest neighbouring residences was in conformity with the Protocol.

The evidence was that the separation distance between water courses and areas where waste was being spread was also in conformity. Mr. Tiessen acknowledged that he was not always able to incorporate the waste within the times recommended in the Protocol because of weather and/or soil conditions but that he was using his best efforts to comply. We accept the uncontradicted evidence of these witnesses.

NORMAL FARM PRACTISE

Section 1 of the Act states that “normal farm practice” means a practice that

(a) “Is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances”, or

(b) “makes use of innovative technology in a manner consistent with proper advanced farm management practises.”

In Pyke et.al. v. Tri Gro Enterprises Ltd. et.al. (Supra), Mr. Justice Sharpe, J.A. considers the interpretation of the phrase “normal farm practice”. On page 44 of the Judgement, he states:

“In my opinion, a broad approach, relating the inquiry to the specific circumstances pertaining to this site with a view to striking an appropriate balance between the rights of affected property owners and nuisance creating farming operations, is borne out by the language of the statute. I agree with the trial Judge that the legislative language indicates that there should be a qualitative or evaluative element to the interpretation of “normal farm practice”. As I read both the 1988 and the 1999 Acts, farming operations do not automatically gain statutory protection by showing that they follow some abstract definition of industry standards.”

With that “balance” in mind, the question to be determined by this Board is whether or not the waste handling practices at the Tiessen farm are consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or makes use of innovative technology in a manner consistent with proper advanced farm management practices.

The evidence called by the Applicant confirmed that in applying waste to his land Mr. Tiessen was complying with both the O.M.A.F.R.A. Protocol and the Ministry of Environment Certificate of Approval. The uncontradicted evidence of Mr. Tiessen’s expert witness, Mr. Schleihauf, was that the waste handling activities at the Dan Tiessen farm were within the realm of normalcy so long as he continues to follow the protocols and that the application of such waste products to agricultural land is a normal farm practice in Ontario.

This Board is very concerned that there appears to be no correlation between the O.M.A.F.R.A. Protocol and the MOE Certificate of Approval with respect to the combined maximum amount of treated and untreated waste which may be applied to any particular parcel of land. The Protocol and the Certificate of Approval are supervised by two separate Ministries. It is unfortunate that there is no joint protocol which establishes a maximum amount of treated and untreated waste to be applied per acre. If one of the reasons for establishing the maximum application rate suggested in the O.M.A.F.R.A. Protocol is to prevent over-application of waste, the failure to take into consideration the quantities of treated waste which are being applied over and above the Protocol limits seriously restricts the positive results that the Protocol is intended to create.

In the case at hand, the evidence shows that the application rate of untreated waste on the Tiessen property was 64 tonnes per acre. (Exhibit #6) The evidence also shows that the application rate of treated waste on the 22 acres of the Tiessen property was 124 tonnes per acre. (Exhibit #7) The total application rate on the 22 acre parcel was therefore, 188 tonnes per acre.

The evidence of Mr. Spieser and Mr. Gibson confirms that such a combined application rate violates neither the limits recommended in the Protocol nor the Certificate of Approval. Clearly, such a result could not have been intended by either Ministry. If an application rate of 66.9 tonnes per acre was considered by O.M.A.F.R.A. to be a maximum, then surely an application rate of 188 tonnes per acre would considered harmful. The fact that the Protocol deals only with untreated waste is unfortunate.

Mr. Sweet, the solicitor for the Corporation of the Town of Leamington, testified that the Town does not have a Nutrient Management By-Law at this time; and we note that Bill 81(2001), the Nutrient Management Act, 2001 is still before the Legislature. In the absence of such a joint Protocol there appears to be no limit on the total amount of treated and untreated waste which can be applied to an acre of land.

This Board is of the opinion that managing the risk associated with the application of manure and other waste products to agricultural land is a necessary element of a normal farm practice. It is also our opinion that a Nutrient Management Plan is the best existing tool for managing that risk.

In the case at hand there was no evidence that the Respondent had any knowledge of the nutrient limits of the soil receiving the waste nor the application rates which are appropriate. As well, the public does not have the comfort of knowing that the total application rates of both treated and untreated waste conforms to established standards and procedures designed to protect the Environment, the viability of the land and the crops they produce.

Accordingly, it is the opinion of this Board that the waste handling practices of the Respondent agricultural operator Dan Tiessen, do not comply with normal farm practice because a Nutrient Management Plan approved by O.M.A.F.R.A. staff is not in place.

DECISION

There is no doubt that the waste handling activities of the Respondent, Mr. Tiessen, have caused considerable discomfort to the Applicant and to the neighbours who live in close proximity to the Tiessen farm. The concerns of the Applicant are legitimate.

We have noted the efforts of Mr. Tiessen to address the understandable concerns of the Applicant. The evidence was that in order to reduce the fly infestation certain sprays had been purchased and utilized with some limited success. In an effort to reduce the dust created by the trucks delivering waste, chlorine was applied to the gravel driveway. Mr. Tiessen stated that he was using his best efforts to avoid deliveries after 6:00 p.m. He was not spreading waste on an 8 acre portion of his farm so as to create a larger buffer between where the waste was spread and neighbouring residences. We are satisfied that both Mr. Tiessen and Mr. Stein have acted in good faith in their efforts to address the concerns of the neighbours.

Section 5(4) provides that after a hearing the Board shall,

1. dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;

2. order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or

3. order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice.

We are of the opinion that the Respondent agricultural operation would be a normal farm practice if an approved Nutrient Management Plan was in place.

Accordingly, it is the decision of this Board that:

1. The Respondent agricultural operator develop a Nutrient Management Plan for the Tiessen farm property and have it approved by O.M.A.F.R.A. staff, on or before August 15th, 2002.

2. Until August 15th, 2002 the Respondent farm operation shall be permitted to continue the existing practice of applying treated and untreated waste to the Tiessen farm property according to the guidelines set out in the O.M.A.F.R.A. Protocol and the Ministry of Environment Certificate of Approval.

3. In the event that a Nutrient Management Plan approved by O.M.A.F.R.A staff is not in place for the Tiessen farm property by August 15th, 2002, all waste spreading activities at the Tiessen property shall cease.

EXHIBITS

FILED BY CONTENT

4. STEIN ANALYSIS OF WASTE PRODUCT FROM OLMSTEADS

5. STEIN MAP SHOWING LOCATION OF “LAND POOL” PROPERTIES

6. STEIN PHOTOGRAPHS OF SITE AND SITE CONDITIONS

7. STEIN MINISTRY OF ENVIRONMENT, CERTIFICATE OF APPROVAL ISSUED TO DAN TIESSEN

8. STEIN RECORD COMPARING TONNES OF WASTE DELIVERED BY ERIE ENVIRONMENTAL TO ESSEX-WINDSOR SOLID WASTE AUTHORITY DURING THE MONTHS OF MARCH 2000 AND MARCH 2001

9. MARTINI RECORD OF TONNES OF WASTE TRUCKED FROM OLMSTEAD FACILITY BY ERIE ENVIRONMENTAL DURING 2001

10. MARTINI RECORD OF TONNES OF WASTE TRUCKED FROM FAMILY TRADITION FACILITY BY ERIE ENVIRONMENTAL DURING 2001

11. MARTINI RECORD OF TONNES OF WASTE TRUCKED FROM HEINZ BY ERIE ENVIRONMENTAL DURING 2001

12. MARTINI CURRICULUM VITAE - JOHN C. SCHLEIHAUF

13. MARTINI EXPERT REPORT - JOHN C. SCHLEIHAUF