June Rutt v. Dejavu Raw Energy Farms Inc., 2004 CanLII 76798

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE Farming and Food Production Protection Act, 1998

AND IN THE MATTER OF an Application to the Board under section 5 of the Farming and Food Production Protection Act, 1998.

BOARD FILE NO.: 2003-09

AND BEFORE: ROBERT G. STEPHENS, CHAIR JOHN MARKUS, MEMBER BILL FRENCH, MEMBER

PARTIES: JUNE RUTT – Applicant DEJAVU RAW ENERGY FARMS INC. – Respondent THE CORPORATION OF THE MUNICIPALITY OF LEAMINGTON – Municipality

APPEARANCES: JUNE RUTT - for the Applicant SHANNON and MARK MATHESON - for the Respondent BRIAN SWEET - for the Municipality

REASON FOR HEARING

This hearing resulted from a complaint by the Applicant pertaining to an alleged disturbance in the form of odour emanating from the farm operation of the Respondent agricultural operator.

BACKGROUND

The Applicant initiated this Application through a letter dated March 3rd, 2004 forwarded to the Normal Farm Practices Protection Board.

This matter was originally scheduled for hearing on the 28th and 29th of June, 2004. The hearing was deferred until July 20th at the request of the Respondent.

At the commencement of this Hearing, the Applicant, June Rutt acknowledged that the farm operation of the Respondent is an "agricultural operation" as defined by the Act.

At the commencement of this Hearing, following a request by Brian Sweet, its Solicitor, the Corporation of the Municipality of Leamington was added as a party.

At the commencement of this Hearing, a site visit of the Respondent farm operators' facilities was ordered by the Chair. The Applicant, the Respondent, Mr. Brian Sweet and the Panel attended the site visit.

SUBJECT OF THIS HEARING

The subject of this hearing is the composting of greenhouse vine wastes along with organic vegetable wastes by the Respondent agricultural operator for the purpose of producing heat which is then used as a supplementary heat source for the Respondents' greenhouse operation.

APPLICANT

June Rutt, the Applicant in this matter, resides at 21160 Erie Street South in Wheatley, Ontario, one quarter mile north of the Respondent farm operation. She has resided at that location for in excess of thirty years.

At this hearing, Ms. Rutt, as Applicant represented a number of residents who mostly reside in the close proximity to the Respondent farm and whose interests were stated to be identical to those of Ms. Rutt.

RESPONDENT

The Respondent, Dejavu Raw Energy Farm Inc. carries on a greenhouse operation for the growing of peppers, at 433 Kent Road # 1, in the Municipality of Leamington, on a parcel of land consisting of approximately 22 acres, on which there are located approximately 5 acres of greenhouses. The Respondent farm operation commenced in 2000. As a result of large increases in the price of natural gas almost immediately following the commencement of operations, the Respondent looked for alternative sources of fuel. It was decided that the heat generated through composting would be a suitable supplementary heat source for the Respondent farmers' greenhouse operation. In September of 2003 the composting operation currently in use at the Respondent facility was commenced.

The Respondent Dejavu Raw Energy Farm Inc is a private Ontario Corporation. Mark and Shannon Matheson are the Principal Shareholders and the managers of the Respondent farm operation.

FARMING AND FOOD PRODUCTION PROTECTIONS 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 practise 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 practice."

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 is located in the Municipality of the Town of Leamington in the County of Essex and consists of approximately 22 acres of land located at 433 Kent Road # 1 west of Erie Street. Located on the land are 5 acres of greenhouses used for the production of various varieties of peppers. Attached to the production facilities is a greenhouse type of structure housing a composting system which includes four concrete channels, 168 feet in length, 12 feet wide, and 6 feet deep. Piping to circulate the water used to absorb the heat is encased within the concrete floor. Included in the system is a 50,000 gallon capacity hot water storage tank.

About 60 tons of waste materials are added to the system each day. The waste material consist of greenhouse vine wastes from Dejavu and several other growers along with organic vegetable wastes such as cull onions, squash and peppers from Olmstead Foods. The material is blending into a recipe intended to provide the proper carbon-nitrogen ratio to facilitate composting. The raw material is added to the compost channels located inside the building on a daily basis.

An automated compost turner moves atop the channels on rails aerating the material. In three weeks the material is processed and moved to the end of the channel and conveyed to an adjacent site for curing.

The composted material can produce temperatures of 55 degrees centigrade. The heat from composting is then transferred to the greenhouses. Natural gas is the backup fuel.

POSITION OF THE PARTIES

APPLICANT

On behalf of the Applicant, June Rutt submitted that:

1. a. The Respondent farm is properly zoned for the composting activities being being carried out by the Respondent b. All necessary consents required to allow the Respondent to compost at the site have been obtained from the Municipality, and c. The only "disturbance" created by the Respondent farm operation is odour resulting from the composting portion of the Respondents' farm operation.
2. The odour emanating from the Respondent facility is not typical farm odour such as is produced by livestock. The intensity and frequency of the odour are inconsistent with any other farm odours in the vicinity and therefore the composting that producing the odour is not a normal farm practice.
3. The odour emanating from the Respondent farm operation makes it impossible for the Applicant and other non farm residential property owners in the vicinity to enjoy their property because both outdoor and indoor activities in the area must be scheduled to avoid the odour.
4. The Respondents' operation of a composting facility in a mixed farming area in such close proximity to the large number of non farm residential uses is not a normal farm practice.
5. The Respondents' composting operation commenced after the rural non farm residents in habited the area. It should have been located in unpopulated area.

RESPONDENT

On behalf of the Respondent, Shannon Matheson submitted that:

1. Composting raw vegetables to produce heat is a normal farm practice.

2. The methods used by the Respondent to transport, store and compost the vegetable wastes received at the Respondent facility are consistent with normal farm practice.

3. The Respondents' composting operation, does create an odour which directly affects the Applicant and several of the residents in the immediate area of the Respondent farm operation, however, the Respondents have at all times used their best efforts to reduce the odour and at all times have acted in a manner consistent with normal farm practice. The resulting odour has been an unavoidable consequence of Engineering difficulties associated with the Respondent facilities and not untypical of early problems oh many farm businesses in their infancy.

4. It is the Respondents intention to have the system completely contained within a greenhouse with proper ventilation controls and a sufficient bio-filter system in place to control the odour.

5. Composting as a means of producing supplementary heat for a farm operation is a technology that works and is a normal farm practice. Farmers must be allowed the latitude to experiment and fine tune the system. The technology is sound and the Respondents best efforts are being used to avoid disturbances to rural neighbours that result from the composting.

MUNICIPALITY OF LEAMINGTON

On behalf of the Municipality of Leamington, Brian Sweet submitted that:

1. The Respondents should be ordered to remove all existing bails from the farm property by August 31st, 2004.

2. That the composting operation of the Respondent represents leading edge technology that should be promoted. To that end, the Respondent should be given every reasonable opportunity to fix any existing problems that result in unacceptable levels of odour within specific time limits.

3. The Municipality does not want the Respondent composting facility closed down but acknowledge that the odour concerns of the residents are valid and must be addressed by the Respondent within a reasonable time.

EVIDENCE

WITNESSES CALLED BY THE APPLICANT

The witnesses called by the Applicant were: June Rutt, Allan Retter, Pat Matier, Birute Patterson, Pauline Bigras, Joe Hickson, Ron Clark, Rosanne Fressen, Martha Pinch and Bill Derbyshire.

The evidence of each of the Applicant witnesses was consistent with the evidence of the Applicant, June Rutt. Generally the witnesses for the Applicant simply acknowledged the evidence given by June Rutt as representing their own views. A summary of the Applicants' evidence is as follows:

• Erie Street runs in a North South direction and separates the Municipality of Leamington on the West from the Municipality of Chatham-Kent on the East. The witnesses for the Applicant reside at locations mostly North of the Respondent farm operation except for Martha Pinch who resides South East of the Respondents' farm operation. The area in the vicinity of the Respondents' farm operation and the Applicant witnesses' homes is an area of mixed agricultural uses interspersed with many non farm residential dwellings. Also in the immediate vicinity is an operating mink farm, a retirement home, a fishery, another greenhouse and commercial uses.

• The Applicant witnesses have not experienced odour problems in the past except on occasions when Olmstead Foods processed onions. All witnesses stated that they were familiar with and were prepared to tolerate the normal agricultural odours such as from live stock including the spreading of manure on fields in the vicinity, or odour produced by the mink operation located nearby.

• The witnesses first experienced odour from the Respondents' composting facility in December 2003. The odour was variously described as sour, sickening, rotten, nauseating and "a real stench".

• In describing the impact the odour has had on their ability to enjoy their properties, Ms Rutt described being awakened at night by the odour. The witnesses complained that various outdoor activities such as barbequing, gardening and relaxing were curtailed or eliminated because of the presence of the odour. Ms. Pinch stated that "family gatherings can't be planned because the wind direction changes three or four times each day". It's necessary to operate air conditioners on a regular basis to reduce the odour level in the homes.

• The witnesses acknowledged that Shannon Matheson had invited neighbours to the Matheson home and had described the composting process and had outlined the efforts that the Respondent had undertaken to date to reduce the odour. Ms. Matheson mapped out the Respondents plans for the future. The witnesses generally acknowledged that Shannon and Mark Matheson had shown concern for the impact the odour was having on the abilities of the neighbours to enjoy their properties.

• The prevailing wind in the area is from the northwest. The odour is most prevalent when the wind is blowing in that direction. The Applicant witness Joe Hickson maintained a log for the month of June 2004 to record the instances of the odour. Joe Hickson is a resident of Leamington and resides less then 1 km from the Respondent facility. He stated that the odour affected him the first warm day this spring. The wind direction was from the south. He stated that he "couldn't sit outside". His log for the month of June records odour on June 9th, June 21st, and June 29th. There was no evidence that the odour is continuous. The evidence was that the odour can last for two or three days at a time with days in between when there would be no significant odour. It was the general feeling of all Applicant witnesses that the impact of the odour was a function of the wind direction.

• The Applicant witnesses stated that they had no concerns with the greenhouse operations of the Respondent farm operator. They wish the business to continue. Their only concern related to the odour produced from the composting operation which they insisted must be dealt with.

WITNESSES CALLED BY THE RESPONDENT

The witnesses called by the Respondent were: Shannon Matheson, Helmut Speiser and Jody Wright.

Shannon Matheson

Ms. Matheson testified that the Respondent commenced operations during the year 2000. The 5 acres pepper operation produces speciality peppers in addition to the main crops of yellow and red sweet peppers. The business is operated by Shannon and Mark Matheson who are the Principal Shareholders of the Respondent Corporation.

Shortly after commencing operations, natural gas prices increased rapidly and the Mathesons realized it would be dangerous from an economic point of view to be completely dependent on natural gas as a heat source. They immediately began researching alternative fuels. The decision was made to tap the heat generated through composting because it would be environmentally friendly and they would not be so dependent on fossil fuels. It would also make good use of waste plant materials which normally would be land filled or spread over fields.

A project manager was hired in the spring of 2003 and the composting project was completed at a cost of $700,000.00 in September of 2003. A contract was entered into with Olmstead Foods for the supply of organic prepossessed wastes. Ms Matheson described the procedure establishing the composting operation to be harder and longer then they originally thought. She stated that there "have been lots kinks".

In February of 2004, as a result of complaints of odour and other operational problems, the Respondent released the project manager and hired a compost specialist as a consultant. They were advised to make the neighbours aware of the problems they were encountering. As a result Ms. Matheson wrote a letter to a local newspaper and outlining the composting process and the map and the Respondents plans for the future.

Ms. Matheson stated that she sympathized with the neighbours and that she would not want to live across the road from the composting operation. "We had meetings with neighbours and admitted that the bails of vine stored in the land surrounding the greenhouses were an odour problem and that the bails were to be removed." The removal of the bails has been delayed because of the large amount of rain and the requirement that the land fill site operator must establish a date when the bails can be accommodated which data has not yet been set.

Ms. Matheson described the main cause of odour to be an undersized bio-filter located in the composting building. The cost to install an appropriately sized bio-filter is between $60,000.00 and $100,000.00. The replacement is planned but the Respondent requires funding. Efforts to obtain funding are ongoing.

During cross-examination, Ms. Matheson when asked if she felt it fair that the neighbours must put up with the inconvenience of the odour she replied "No, I have made that very clear and because of the odour we've cut back turning the compost from 12 days of every 14 to 2 days of every 14 and we've initiated several other changes".

It was the evidence of Ms. Matheson that the Respondent did not require consent from the Municipality of Leamington to add the composting operation to the greenhouse operation. "We were told it was part of our facility and part of our fuel". She stated that they did not require a certificate of compliance because processed wastes are not used as part of the composting process. She stated that "We don't receive any pre-processed material and we have notified Olmstead Foods of that fact". "The raw material can not be thermally or chemically treated".

Ms. Matheson described the odour from onions as the worst of the raw materials used. She testified that it is possible to eliminate some of the odour from onions by added woodchips. "We need carbon from the wood chips because it eliminates smell. We tried to get ash wood chips and not one load was delivered. We would like to have our own carbon source from wheat or straw". She said not using onions as an input is not an option because at certain times of the year, onions are the only vegetable product available and they can not afford not to use them. In any event, since onions must be accommodated at the land fill site, if we refused to accept the onions "we would solve one problem and give it to someone else".

In outlining the efforts to control the odour, Ms. Matheson review the efforts to date as follows:

(a) The compost is turned on only 2 days every two weeks rather then every day.

(b) A consultant has been hired to report and see if composting can be viable and if it can be carried out without creating odour. The consultant's report is expected by the end of August 2004.

(c) The compost is turned in the morning to reduce the odour during the day.

(d) The vents and doors in the composting building are kept closed to prevent odour from escaping.

(e) Organic carbon spray is being applied to the raw vegetable material to reduce odour.

Jody Wright

Jody Wright is an employee of the Respondent who commenced her employment during the second week in January 2004. She stated that at that time odour was the main concern of the Mathesons and she was advised by the Mathesons that the first priority of their efforts was to be the reduction of the odour level. All efforts of the Respondent were directed to resolving the odour problem. She stated that at that time the channels needed to be moved every day and that wasn't being done. Cleanliness was a problem. It was her evidence that while the production of heat was important to the economic viability of the business, the Respondents finances were diverted toward odour reduction.

Ms. Wright stated that the Respondent retained a consultant and began keeping a log of the steps that were being taking to control odour. "We wanted to track our activities". The issue of odour was discussed bi-weekly, then weekly and also on separate occasions.

Ms. Wright described a typical day at the composter as starting at 8:00 am when the material in each of the four channels is turned. The turning required one hour a channel for a total of four hours. The mechanical turner despite modifications is not efficient enough to turn the material in the time frame required and solutions are being investigated.

Ms. Wright outlined the changes in policy which were initiated at the Respondent operation in an effort to reduce odour. Some of the changes were:

1. They made changes in cleanliness, such as using a power washer each week.

2. The use of woodchips was increased to reduce odour.

3. Raw vegetable material delivered from Olmstead Foods, if not placed in the compost building when delivered was covered with wood chips to avoid odour.

4. Organic carbon spray was applied to the vegetable material.

5. Operations commenced at 6:00 am so that the odour would only impact in the early morning hours. The door and vents were kept closed to avoid the escape of odour.

6. Inputs delivered to the property are placed in the compost channel and left for up to three weeks without transfer to reduce odour.

Ms. Wright stated that she has talked to people in the area and they say that the odour is getting better. "Spray and wood chips made a big difference." She stated that there are not many options still available for reducing the existing levels of odour prior to obtaining the consultants report. "All avenues have been exhausted and anything that might reduce the odour has been tried".

Helmut Speiser

Mr. Speiser is an Engineer employed by O.M.A.F.R.A. at Ridgetown, Ontario. Mr. Speiser testified that he had visited the Respondent farm operation because he had heard they were doing composting and he was interested in the technology. He was interested in the process and the use of vegetable waste in an area where such waste was readily available. He saw this as a way to reduce odour and have heat as a by-product and still have the nutrients when finished. He has visited the site thirty or more times since that original visit.

Mr. Speiser testified that many of his visits were unannounced but on four or five occasions he had phoned ahead to announce his visit. He stated that he was always made welcome and the Matheson's were very forthcoming with their answers. He stated that he had full access to the facilities but not the greenhouse itself.

It was Mr. Speiser's evidence that he has spent a lot of time tracking down the odour but he has not visited the complainants' homes. The complainants he said, stated that the odour was coming the composting facility so "that's where I went". He stated that the complaints that he received were not specific. Usually his visit to the location meant a trip around the general area to determine the location of odours. He stated that he has been called to investigate other odours in the area not related to the Respondent farm operation.

Mr. Speiser testified that it was difficult to predict the intensity of the odour on any particular occasion. On one occasion he was at the Respondent facility three hours before a complaint was received. The wind on that occasion was from the southwest and the smell was horrendous. Three hours later there was no odour. On another occasion, he received a complaint and forty-five minutes later when he attended at the premises there was no odour.

When visiting the premises Mr. Speiser took samples of the product to have them tested. He smelled each sample himself. He said that he got second opinions and on occasion brought another individual to the premises and spent the whole day attempting to find the odour. On one occasion he found a spot one half the size of a kitchen table where a small patch of soil had a much higher odour level then the surrounding area.

In describing the number of calls received concerning odour from the Respondent farm, he stated that the number of calls have decreased. In total he received 37 telephone calls concerning the Respondent composting operation. He stated that he had received no calls prior to the time that the composting operation commenced in September 2003. He did not know if the reason for the reduction in complaints could be because the odour levels emanating from the Respondents farm operation have been reduced or because the incidences of odour are less frequent or simply because the people have quit calling.

When characterizing the odour level, Mr. Speiser stated that if the number ten represented the worst possible odour he has experienced, the odour level emanating from the Respondent operation would be a two. He confirmed he was not experienced at measuring odour and that this opinion of odour level was simply a personal observation.

During cross-examination, in response to the question "do you feel that the people who called you complaining about odour, called without reason", Mr. Speiser's answer was no. However, he stated that he did not experience odour at the levels complained of.

Brian Fluker

Mr. Fluker is one of two Municipal Political Representatives for the Chatham-Kent ward. Mr. Fluker gave evidence in response to a claim by Mr. Matheson that a pile of ash tree chips located in the Chatham-Kent ward which would have been useful to the Respondent and which Mr. Matheson had wanted as in input, were sent to a different jurisdiction. Mr. Fluker testified that he talked to Mark Matheson and told him "to come and get the chips". Mr. Matheson advised him that he only had access to a small trailer which would not be suitable for the delivery. Mr. Flukers' evidence was that the Municipality was not paying to deliver the chips and it was up to Mr. Matheson to arrange the trucking. Mr. Fluker said there was a lot of pressure to get rid of the pile as soon as possible to prevent any resulting odour.

ISSUES

The issues for consideration in this case are:

1. Was the Applicant directly effect by a disturbance in the form of an odour emanating from the Respondent composting operation?

2. If the answer to number 1, is yes, was the disturbance the result of normal farm practises by the Respondent?

1. Was the Applicant directly effect by a disturbance in the form of an odour emanating from the Respondent composting operation?

There was ample evidence presented at the hearing to establish that the Applicant and several neighbours represented by the Applicant were directly affected by a disturbance in the form of odour emanating from the Respondent composting facility.

The Board were impressed with the evidence of the Applicants' witnesses. Their evidence was straightforward and did not appear given to exaggeration. The evidence was consistent in establishing that the residents' only objective is to have the odour brought under control. Several Applicant witnesses expressed the hope that the Respondent would be successful in finding a solution to the odour problem and be able to continue to carry on with nursery operations.

Having heard the evidence we find that the Applicant and homeowners represented by the Applicant were directly affected by a disturbance in the form of odour from the Respondent agricultural operation. The Applicant is therefore entitled to have the Board proceed with a hearing to determine if the odour resulted from normal farm practices.

2. Is the disturbance the result of normal farm practises?

The Preamble to the Act speaks of the necessity to maintain a balance between the needs of the agricultural community and provincial health, safety and environmental concerns. In this case that balance is between the rights of the Respondent farm operators to create a disturbance in the form of odour from a composting operation while implementing and fine tuning the composting operation on the one hand, and the rights of the non-farm rural residents in the area to enjoy their property without being disturbed by such odours.

In considering this balance in another case, this Board has stated that

"Odour is a normal and acceptable product of farming. Its acceptance is part of the give and take of rural life. Farmers have the right to expect the good will of those in rural areas as they attempt to implement new technologies and new intensive farming methods in a very competitive environment. It is only with those expectations that farming can continue to be viable way of life. This Board was created to protect that right. However, those who share rural areas with farmers also have a right to expect that farm operators will use their best efforts to integrate their activities so as to cause as little impact as possible. That includes the expectation that intensive operations which have the potential of producing offensive odour will be located in consideration for the impact that such odours could have on their neighbours".

As previously stated, we believe the evidence shows that the neighbours who have been impacted by the odour from the Respondents composting operation have acted in good faith in their attempts to communicate their concern to the Respondent. The evidence also shows that there exists amongst those neighbours an element of goodwill and a genuine hope that the Respondent farm operators can continue their nursery operations which except for the odour is not otherwise objectionable. Their over riding concern is that the odour be brought under control.

The evidence also shows that the Respondent farm operators have acted in good faith in attempting to deal with the odour in a timely manner.

A review of the evidence shows that:

1. The composting operation commenced in September 2003. The operation was not undertaken lightly. The Mathesons researched the subject of composting in detail, from many sources. The operation was undertaken at significant cost, stated to be $700,000.00

2. Early in 2004, shortly after complains of odour were received the Respondents released the project coordinator as a direct result of the complaints of odour and a belief that efforts of the projects coordinator were not leading to a solution to the odour problem.

3. A consultant and Ms. Jody Wright were hired in March of 2004 as a result of which several steps were taken to reduce the odour. Several of the changes in the operating policy at the compost facility have been previously outlined in this decision.

4. The Matheson's made efforts to communicate their concerns regarding odour to the neighbours and called a meeting at their home for that purposes.

5. Shannon Matheson acknowledged the existence of the odour and stated that she would not want to be subjected to it.

6. Shannon Matheson testified that after the consultants report is received, a decision will be made promptly to either fix the problems causing the odour or to terminate the composting operation. She did indicate that measures necessary to reduce the odour will require scheduling in accordance with the Respondents ability to pay.

We are of the opinion that the Matheson's have attempted throughout to integrate the composting operation into the Respondent farm operation in such a way to cause as little impact as possible. We are also satisfied that they have throughout acted in good faith in their efforts to reduce the odour even when those efforts have resulted in financial hardship to the Respondent farm operation.

On balance, both the Applicant and the Respondent have acted reasonably. The Applicant is entitled to an assurance that within a reasonable time the impact of the odour on their daily lives will not be greater then a level considered normal in a rural farming area in which they live.

The past conduct of the Respondent farm operators in dealing with the odour, their reasonable believe that a solution to the odour problem is possible, together with their stated willingness to implement recommended solutions are important factors. Our opinion weight in favour of the Respondent having more time to resolve the odour issue. We believe it necessary that farmers be allowed a reasonable time to fine tune new technologies incorporated into the existing farming operations.

The interim decision contained herein, we believe strikes a reasonable balance between the Applicants right to relief from odour and the farmer's right to additional time to provide the relief requested. This interim decision is consistent with the wishes of the Municipality of Leamington expressed through their Solicitor Mr. Brian Sweet. The position of the Municipality we feel was most reasonable and fair to both the Applicant and the Respondent and the interim decision contained herein implements many of the recommendations of Mr. Sweet. Briefly put, the Municipality does not want the composting operation of the Respondent closed down and believes that the composting technology being implemented by the Respondent is important for the long term viability of the greenhouse farming industry. At the same time, the Municipality recognizes the right of the residents to relief within a reasonable time from an existing odour levels.

We have purposefully refrained from ruling on whether or not the odour from the Respondent composting operation is the result of Normal Farm Practices by the Respondent. The interim decision which follow,s renders such a ruling unnecessary at this time. If this Hearing is reconvened pursuant to the terms to the terms of the interim decision, such a finding will be part of the final decision.

INTERIM DECISION

1. The respondent shall remove the bales from the premises by August 31st, 2004.

2. Turning of the compost shall be restricted to once every ten days or less frequently.

3. The respondent shall proceed to obtain the consultant's report as soon as possible, and shall notify the Board when the report has been received.

4. By October 15th, 2004, the Respondent shall submit to the Board either:

a. A comprehensive plan, supported by the consultant's report, and containing time lines, for reducing the odour emitted from the composting operation to acceptable levels. The plan must be accompanied by proof that the necessary financial commitments are in place.

OR

b. Proof that the composting operation has been dismantled or otherwise terminated.

5. If the composting operation is not being terminated, then, by December 31st, 2004, all construction/installation of modification/additions included in the plan must be completed and the Board must be advised of the date of completion.

6. The Respondent shall have two months to ensure that the modified system is functioning properly. After February 28th, 2005, if the Applicant is experiencing unacceptable levels of odour, the Applicant may request that the Board resume the hearing.

7. If the Applicant does not request a resumption of the hearing by June 30th, 2005, the Board will issue its final decision.

DATED this day of August, 2004

________________________ ROBERT G. STEPHENS, Chair

________________________ BILL FRENCH, member

________________________ JOHN MARKUS, member

RUTT V. DEJAVU

______________________________ INTERIM DECISION ______________________________ July 2004