Normal Farm Practices Protection Board
Normal Farm Practices Protection Board 1 Stone Road West, 2nd Floor Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca
Commission de protection des pratiques agricoles normales 1 Stone Road West, 2e étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF a hearing under the Farming and Food Production Protection Act, 1998, S.O. 1998, Ch.1;
AND IN THE MATTER OF an application for a determination as to whether the disturbances from 2021 Four Mile Creek Road, Niagara-on-the-Lake result from a normal farm practice;
Board File No. 2015-02
BETWEEN:
James Dell, Sophie Dell, Ron Quevillon, Charlene Quevillon, Dino Lavalle, Mary Lavalle, Dan Lavalle, Larry Bourk, Joan Bourk, Richard Zirger, Judi Zirger, Robert Zirger, Sharon Zirger, George Lepp, Cindi Lepp, Mark Lepp and Erica Lepp
APPLICANTS
AND
Zeifman Partners Inc. as operator of the waste disposal site at 2021 Four Mile Creek Road, Niagara-on-the-Lake
RESPONDENT
Appearances:
Paul Marshall/Cassandra Kirewskie, Counsel for the Applicants
Stanley D. Berger, Counsel for the Respondent
Before:
Glenn C. Walker, Vice-Chair
Thomas Field, Member
Douglas Eadie, Member
REASONS FOR DECISION
A. INTRODUCTION
An application was made to the Board by the Applicants named above pursuant to Section 5 of the Farming and Food Production Protection Act, 1988 S.O. 1998, Ch.1, as amended, (the "Act"). The application alleges disturbances due to odour, flies, dust, light, noise and vibration arising from the agricultural operation of the Respondent and seeks a determination as to whether the alleged disturbances result from a normal farm practice.
The application came before the Board for a hearing on December 3, 4, 8, 9, 10 and 11, 2015; January 12, 13, 14, 15, 21 and 22, 2016; April 13, 14 and 15, 2016; June 21, 22 and 23, 2016 and July 5 and 6, 2016 and was heard at Niagara-on-the-Lake.
On behalf of the Applicants, the Board heard evidence from Sophie Dell, James Dell, Charlene Quevillon, Ron Quevillon, Mary Lavalle, Judith Zirger, Dan Lavalle, Dino Lavalle, George Lepp, Richard Zirger, Robert Zirger, Ryan Brewster, who was qualified to give opinion evidence with respect to pest management, Jake Debruyn, Dan Carlow, James Dyck, Todd Leuty, who was qualified to give opinion evidence with respect to agroforestry, Chris Duke, Stephen Bedford, who was qualified to give opinion evidence with respect to community planning, Randy Van Berkel, Kyle Bartel, Doug Beattie, who was qualified to give opinion evidence with respect to operation of an anaerobic digester and management of odour complaints, Hugh Fraser, who was qualified to give opinion evidence with respect to minimum distance separation and Paul Cline. On behalf of the Respondent, the Board heard evidence from Ken Andres and Clare Riepma, who was qualified to give opinion evidence with respect to best management practices for anaerobic digesters. As part of the Board's Rule 55 process, allowing for public participation in the hearing, evidence was received from Mario Spiewak, Bruce Moore, Reinhard Suelzle, Richard Meloen, Patricia McMaster and James McMaster, all of whom supported the Applicants' case. Sharon Zirger, Cindi Lepp, Mark Lepp and Erica Lepp did not testify. In addition, the Board entered approximately 200 exhibits.
For the reasons that follow the application is allowed.
B. FACTUAL BACKGROUND
Site Location and Description
2021 Four Mile Creek Road, Niagara-on-the-Lake ("NOTL") is the site of a large greenhouse operation formerly operated by the Van Berkel family for over 30 years under the name "Vandermeer Greenhouses". In approximately 2009 Vandermeer Greenhouses installed an anaerobic digester system ("digester") at the rear of the greenhouses to provide an alternative source of energy for the greenhouses. For convenience, the greenhouse and anaerobic digester operations will be referred to as "Vandermeer". Vandermeer is now under receivership, and at the time of the application was operated by a receiver, Zeifman Partners Inc.
The Vandermeer operation is located on the east side of Four Mile Creek Road between Hunter Road and East and West Line in NOTL. All of the Applicants reside on either Four Mile Creek Road, Hunter Road or East and West Line, with the exception of Dan and Dino Lavalle, who do not live at 624 East and West Line but farm there and Robert and Sharon Zirger, who do not live at 59 Hunter Road but visit Robert's parents, Richard and Judi Zirger at their home there.
This rural area is composed of small farms with narrow frontages on the above-named roads and many of the owners grow tender fruit such as peaches, nectarines etc. Vandermeer traditionally produced flowers. Almost all of the farms have houses on them where the Applicants and others reside in fairly close proximity to Vandermeer. There are also a number of residential lots which have been severed from farms.
Prior to the installation of the digester, the neighbourhood was depicted as a relatively quiet, peaceful rural setting. During the growing season, there might be occasional noise from tractors used to spray the trees and fruit. From time to time there might be some manure odour from the chicken barns located at the intersection of Four Mile Creek Road and Hunter Road, especially at times when the birds were rotated. None of the Applicants who testified had any issue with these seemingly normal farm noises and smells.
The Anaerobic Digester
Seeking to minimize its heating and hydro costs, Vandermeer constructed an anaerobic digester system at the rear of the greenhouses on its property. Vandermeer engaged Clare Riepma of PlanET Biogas Solutions Inc. to design and build the digester and to obtain the necessary approvals. The digester commenced operation in 2008. The system consisted of open, cement block bunkers to store feedstock for the digesters, a macerator or hammermill, through which the feedstock is fed into the actual digesters, two enclosed digesters, a large generator, a flare for burning off excess gas, an open building for storage of solid digestate, and open and buried tanks for storage of liquid digestate. The area behind the greenhouses where this operation is located is relatively small and contained and close to the lot lines of abutting neighbours, principally Zirger and Lavalle.
The feedstock is delivered by truck and stored until it is needed in the open bunkers. It is then moved by a front-end loader to the macerator/hammermill and after passing through this piece of machinery is fed into the first digester. After a time, the digestate is fed by augur into the second digester and eventually, the contents of that digester are separated into solid and liquid digestate, which is stored on site until trucked away.
The feedstock for the digester has varied over the years but has consisted, amongst other things of grape pomace, pet food, pepper vines and peppers from a hydroponic greenhouse, coffee grounds, vegetable and flower waste from grocery stores, dissolved air flotation solids (DAF) from meat processing and occasionally manure. Some of the feedstock does not remain in the open bunkers for long; but other feedstock, such as grape pomace, which is all delivered during harvest, may be there for some time. Attempts to cover the bunker contents with tarps or solid digestate to reduce odour and flies have been unsuccessful. Varying the feedstock formula and planting a barrier of miscanthus plants to mitigate the odour has also not succeeded in reducing the impact on the Applicants.
Prior to the installation of the digester, Vandermeer was required by NOTL to obtain a building permit and, as NOTL considered it to be an accessory use to an agricultural use, to enter into a site plan agreement. Clare Riepma, Vandermeer's engineer, provided all information to the municipality. He assured NOTL that odour would not be a problem as the digesters would be sealed; however, the municipality was not aware that the bunkers would be uncovered or that feedstock might remain in them for some time after delivery. No public consultation took place prior to the granting of the building permit or the signing of the site plan agreement.
As the lands were designated for agricultural use under the Town's Zoning By-Law, the new development was subject to minimum distance separation requirements which required anaerobic digesters to be located 13 metres from an interior property line and 125 metres from a dwelling. The proposed location of the digesters was approximately 175 metres from the closest dwelling and as such met the minimum distance separation requirements at that time. These requirements pertained to the anaerobic digesters themselves and not to the open storage bunkers.
In order to be able to accept certain non-agricultural waste as feedstock, Vandermeer applied for and received a Certificate of Approval from the Ministry of the Environment and Climate Change (MOECC). Although MOECC has investigated numerous complaints about the digester with respect to odour, flies, noise etc., the operation remains in compliance with the Certificate.
The purpose of installing the digester was to mitigate the operating costs of the greenhouses. The biogas produced by the digester is used to run a large generator to produce electricity. The generator heats water tanks and the hot water is used to heat the greenhouses. Originally it was designed so that some of the electricity produced could be used in the greenhouses, but due to Ontario Power Authority rules, all of the electricity must be sold to the grid, with the proceeds subsidizing the cost of power used by the greenhouses.
The Disturbances
The disturbances alleged are ones of odour, flies, dust, light, noise and vibration. It is not the intention of the Board to review in this decision the experience of each of the Applicants who testified. With no disrespect to each of these witnesses, the Board heard what each of them had to say. The evidence with respect to the unfortunate experiences of each Applicant is abundant and forms part of the record. In the end, only one of the Applicants needs to be directly affected by one of the alleged disturbances. In final argument, counsel for the Respondent as much as conceded this issue in favour of the Applicants.
A brief outline of the alleged disturbances and their effect on the Applicants follows:
Odour
Some of the words used by witnesses to describe the odour experienced by most of the Applicants were "putrid", "offensive", "rotting garbage", "acrid" and "fermenting stench" among others. The odour could be present almost daily, especially when the wind was from the southwest which is the prevailing wind in this area, and the neighbours, such as the Zirgers, the Quevillons and the Lavalles are probably the most seriously affected. The enjoyment of their properties was diminished by having to stay indoors more and not being able to enjoy their yards, gardens and orchards, all abundantly described in their evidence. The evidence of the Respondent's witness Andres did not support the odour complaints of the Applicants. This, however, was not surprising as his orchard was located upwind of the digester.
Flies
Most of the Applicants experienced an extreme increase in the number of flies around and in their homes from spring until fall, again limiting the use of their lands for walking and using their pools or patios for outside dining etc.
Dust
The evidence of dust was minimal. There was some evidence of a fine particulate settling on neighbouring properties but this did not appear to be a big problem. There was also an attempt to establish that some particulate or gas was causing damage to tender fruit crops in the area, but a causal connection was not established.
Light
Several of the Applicants testified about light coming from the Vandermeer site at night, the source being security lights on the digester site, the flare used to burn off excess biogas and from trucks delivering feedstock at night.
Noise
Some of the Applicants testified about excessive noise coming from the Vandermeer site. This was allegedly coming from delivery trucks, the generator and the frontend loader used to feed the macerator or hammermill.
Vibration
There was also some evidence of vibration being felt by a few of the Applicants, supposedly coming from the operation of the generator.
C. THE ACT
The objectives of the Farming and Food Production Protection Act, 1998, are set out in the preamble, which states as follows:
"It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.
Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands.
Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre and other agricultural or horticultural products.
It is in the provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with the provincial health, safety and environmental concerns."
Subsections 5(1) and 5(4) of the Act provide as follows:
"5 (1) 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."
"(4) After a hearing, the Board shall,
(a) Dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;
(b) Order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or
(c) Order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice."
A disturbance is defined in the Act as "odour, dust, flies, light, smoke, noise and vibration".
"Normal farm practice" is defined as meaning 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 uses of innovative technology in a manner consistent with proper advanced farm management practices."
D. DISCUSSION AND ANALYSIS
Issues to be Determined
The issues to be determined by the Board are:
Has one or more of the Applicants proven that he or she is directly affected by a disturbance of odour, flies, dust, light, noise or vibration arising from a practice related to the agricultural operation of the Respondent?
If so, is the practice a normal farm practice?
If the practice is not a normal farm practice, should the Board order the Respondent to cease the practice or to modify the practice in such a way as to be consistent with normal farm practice?
(1) Directly Affected by a Disturbance
The Board finds that Richard and Judi Zirger, Ron and Charlene Quevillon, Mary Lavalle and perhaps others among the Applicants have been directly affected by disturbances of odour and flies to the extent needed to meet the threshold test. This does not diminish the discomfort and inconveniences experienced by the other Applicants. As stated previously, it is only necessary that one of the Applicants has been directly affected by one of the alleged disturbances. All of the Applicants who gave evidence were credible and the Board did not detect any hyperbole in their descriptions with respect to odour and flies.
In Richardson v. Fox, 2005 ONNFPPB 34, the Board reviewed and established its position with respect to determining whether or not the onus of proof has been met by an applicant before the Board. In coming to this conclusion, we have specifically considered the words of Ferguson J. in Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. NO.3217 (Ontario Superior Court of Justice). Those considerations include that the interference with the Applicants' property must be substantial and repeated or continuous, the character of the neighbourhood, both before and after the commencement of the disturbance, the zoning and the reaction of other persons in the neighbourhood and whether or not the Respondent is using its property reasonably having regard to the fact that it has neighbours, as well as whether it took all reasonable precautions.
With respect to the Applicants named above, we find that they have met the threshold test. There has been a substantial and repeated interference with the use of their properties by reason of the excessive odour and flies since 2009. The character of the neighbourhood has been changed by the operation of the digester from a quiet, peaceful rural setting with the occasional sounds and smells of farming to one besieged by almost daily intense odour and hordes of flies. As discussed further below, we also find that the construction and operation of the digester on the Vandermeer property is not a reasonable use of its property having regard to the fact that it has neighbours nearby. Furthermore, not all reasonable precautions have been taken. The most glaring deficiency is the absence of covered and closed-in bunkers for the feedstock.
In this context, the farm practice is the construction and use of the digester as a necessary but ancillary part of the greenhouse operation. We find that there are several sources of the odour on the Vandermeer site including the storage and removal of digestate, but that the primary source is the storage bunkers. We also find that the storage bunkers are the primary source of the flies.
In his final argument, counsel for the Respondent stated that the Board's jurisdiction depends solely on whether the Applicants were directly affected by disturbances from an agricultural operation and conceded that the Board has jurisdiction to this extent.
(2) Normal Farm Practice
The Board must now turn its attention to the issue as to whether or not the digester is a normal farm practice (NFP) as defined in the Act. The definition of NFP is divided into two parts. The first part requires us to examine whether the practice is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances. The second part, which is disjunctive, requires proof that the practice makes use of innovative technology in a manner consistent with proper advanced farm management practices.
(a) Proper and Acceptable Customs and Standards
The typical manner in which proper and acceptable customs and standards are proven is to call evidence describing similar agricultural operations in similar circumstances. Clare Riepma, the Respondent's engineer, described a similar facility at Bayview Flowers in the nearby Town of Lincoln which was built around 2006 or 2007 and was the third digester built in Ontario. This facility has nearby residences, uses grape pomace as feedstock and has uncovered bunkers. Mr. Riepma gave one instance of a complaint about odour from a neighbour. No one from Bayview was called by either party to testify to confirm or contest this information.
Mr. Riepma described several other digesters but these were either on large farms, in construction at the time of the hearing or had enclosed feedstock storage.
Clare Riepma was qualified by the Board to give opinion evidence with respect to land use planning and the design and operation of anaerobic digesters. He was also the person working for PlanET Biogas Solutions Inc. who designed and built the Vandermeer digester and most, if not all, of the other digesters which he described to the Board. Counsel for the Applicants objected to his qualification as an expert witness on the grounds that he was not independent and that his evidence might be biased.
The Board took the position that it could not determine whether or not his evidence was biased in favour of the Respondent until it heard his testimony and it would then make a decision as to how much weight it would put on his evidence.
Although the Board found Mr. Riepma to be very knowledgeable in this area, it is difficult, without some corroboration, to rely heavily upon his factual evidence, specifically the information provided about the Bayview operation. It behooved the Respondent to call a witness from Bayview to give evidence about that operation since it was relying upon this digester as the best example of a facility similar to Vandermeer.
The anaerobic digester is a relatively new technology for agriculture in Ontario. Mr. Riepma and PlanET Biogas Solutions Inc. have been involved in promoting this technology and designed and built the Vandermeer facility. One must question whether Mr. Riepma might be biased with respect to the success of Bayview and Vandermeer in terms of their nuisance potential.
(b) Innovative Technology
The Respondent urges us to conclude that the digester at Vandermeer makes use of innovative technology in a manner consistent with advanced farm management practices and thus meets the second part of the NFP definition as well. The evidence supports a conclusion that the use of a digester in an agricultural setting is an innovative technology in Ontario although used for many years in Europe and elsewhere. The use of agricultural waste such as grape pomace is also innovative.
But what are the advanced farm management practices that it is to be consistent with?
In Cox v. Town of Mono, 2016 CanLII 10661, (ON NFPPB), the Board stated the following about proper advanced farm management practices:
"There is no evidence before the Board that the fill proposal of Mr. Cox is consistent with proper advanced farm management practices. In fact, there is no evidence that there are any proper advanced farm management practices for this kind of situation. What we do have is the MOECC-Best Management Practice document that deals broadly with the management of excess soil. The Board accepts this document as the best evidence available to it in the nature of a proper advanced farm management practice."
In the absence of the availability of evidence of proper advanced farm management practices, the Board may adopt other management practices to fill the gap. We do have the requirements of the Certificate of Approval enforced by MOECC and as well the Biogas Workbook used as a training course for the operation of a digester. As well we have zoning set back requirements and factsheets from the Ministry of Agriculture, Food and Rural Affairs. The Board accepts these documents as the best evidence available to it in the nature of proper advanced management practice.
(c) Other Considerations
Whether a farming operation qualifies as a normal farm practice is both fact and site specific. In Pyke v. Tri Gro Enterprises Ltd. (2001) CanLII 8581 (ON CA), the Court of Appeal dealt with a fact situation very similar to the one before this Board. Tri Gro Enterprises Ltd., operating as Greenwood Mushroom Farm (GMF) purchased a site to grow mushrooms. The site was formerly the site of non-agricultural businesses. At the relevant time it was zoned agricultural and permitted the operation of a mushroom farm.
The Plaintiffs owned properties near the GMF farm operation. Their properties were also zoned agricultural and, in all but one case, were owned by the Plaintiffs prior to the arrival of GMF. Although the mushrooms were grown indoors, the composting of the substrate to grow the mushrooms in took place outdoors at the GMF facility. When the process became anaerobic, offensive odours were produced which were variously described by the Plaintiffs as like rotten eggs, a septic tank, putrid, like rotten fish etc.
The Plaintiffs brought an action in the Superior Court against the Defendants for damages based on a claim of nuisance. The Defendants plead the defence of normal farm practice.
At trial, the trial judge first found that the odour constituted a nuisance at common law and then proceeded to determine whether the nuisance resulted from a normal farm practice. He found that the intensity and frequency of the odours produced by GMF fundamentally changed the rural environment that the plaintiffs enjoyed before and that the practice was therefore not a normal farm practice.
On appeal to the Court of Appeal, the court stated:
"...the determination of what constitutes a 'normal farm practice' must be made in a proper context, and that, depending on the practice under review, the context may be broad indeed, involving the consideration of many relevant factors including the proximity of neighbours and the use they make of their lands."
"In my opinion, a broad approach, relating the inquiry to the specific circumstances pertaining to the site with a view to striking an appropriate balance between the rights of affected property owners and nuisance creating farm 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 1998 Acts, farming operations do not automatically gain statutory protection by showing that they follow some abstract definition of industry standards.
First, both statutes require that the "circumstances" be taken into consideration. This means that the same practice may qualify as a normal farm practice in one situation, but not in another where the circumstances are different. The definition of "normal farm practice" requires that the operation at issue be assessed with regard to the "customs and standards as established and followed by similar agricultural operations under similar circumstances" (emphasis added)."
"Second, the farming operation must also satisfy the tribunal hearing the case that, in the circumstances, the customs and standards are, in the words of the 1988 statute, "proper and accepted" and in the words of the 1998 statute, "proper and acceptable". The words "proper and acceptable" connote a qualitative, evaluative inquiry. The Shorter Oxford Dictionary (Oxford: Clarendon Press, 1993) defines "proper" as (inter alia) "of requisite standard or type; fit, suitable, appropriate; fitting, right" and "acceptable" as "worth accepting; likely to be accepted; pleasing, welcome, tolerable." These words qualify and limit the phrase "customs and standards as established and followed by similar agricultural operations under similar circumstances" I read this qualification as adding another important dimension to the inquiry."
The Court of Appeal dismissed the appeal finding that the trial judge had not erred in taking into consideration the severity of the disturbance suffered by the Plaintiffs and the fact the agricultural operation had changed the character of the neighbourhood in determining whether or not the Defendant was entitled to use the defence of normal farm practice.
(d) Is it a Normal Farm Practice?
Notwithstanding that the Respondent may come within the technical definition of "normal farm practice"; that is, that the use of a digester ancillary to a greenhouse is something that has been used before; or that it is innovative technology, there are overriding considerations as set out in the Court of Appeal decision in Pyke v. Tri Gro Enterprises Ltd. Although only the first part of the definition was considered in that case, it would be wrong to conclude that the same logic should not apply to the second part of the definition. For example, if a practice consistent with proper and acceptable customs and standards elsewhere was found not to be a normal farm practice at a specific location because of the severity of the disturbance experienced by the neighbours and the fact that it had changed the character of the neighbourhood, why would a practice based on innovative technology and creating the same results be allowed as a normal farm practice? The result would be incongruous.
We find the digester operation at Vandermeer not to be a normal farm practice. In doing so, we rely upon the Court of Appeal decision in Pyke v. Tri Gro Enterprises Ltd. and find, firstly, that the intensity and severity of the disturbances of odour and flies resulting from the Vandemeer operation have substantially interfered with the use and enjoyment of the Applicants' properties and created an intolerable situation for them. Secondly, we find that the character of the neighbourhood has changed from a peaceful, rural environment where the Applicants could enjoy working and relaxing outdoors, to one where they must shelter in their home to avoid the offensive odours and the numerous flies.
Notwithstanding that the Vandermeer operation may be in compliance with its Certificate of Approval, zoning, minimum distance separation requirements and site plan agreement, as we understand Pyke, there are other considerations, which in circumstances such as these, should prevail in order to provide a fair and just result.
It is clear to this Board that approvals for the construction of this facility in this location should never have been granted. The use of anaerobic digesters, especially those not located on a large farm far away from residences, is relatively new to Ontario. Mistakes will be made and have to be corrected. It is interesting to note that, as a result of complaints, the minimum distance separation requirements have increased and other regulations amended since the construction of the Vandermeer digester. That, of course, is of no solace to the Applicants.
E. CONSTITUTIONAL QUESTION
Following the hearing, but before written argument, the Applicants served a Notice of Constitutional Question impugning many of the definitions in the Act on the basis that they violated the constitutional division of powers. The Applicants allege that there are conflicts between various definitions in the Act and definitions in the Income Tax Act (Canada) relating to farming, which require the Board to severely limit the definition of "agricultural operation" using the doctrine of paramountcy. The argument advanced by the Applicants, if accepted, would basically deprive this Board of jurisdiction.
The Attorney General of Canada declined to intervene. The Attorney General of Ontario did intervene and filed written argument. The Attorney General of Ontario states that there is no true operational conflict between the definitions and that the purpose of each of the statutes is different and that the doctrine of paramountcy does not come into play. We agree with those submissions. The constitutional challenge is therefore dismissed.
F. REMEDY
The practice which the Respondent alleged was a normal farm practice is the digester operation ancillary to the greenhouse operation. Having concluded that it is not a NFP in these circumstances, the Board must consider whether the Respondent should cease the practice or modify it in such a way so as to be consistent with a NFP.
In his testimony, Mr. Riepma made several suggestions as to changes that could be made in the operation of the digester that might reduce odour and flies. These disturbances have existed since 2009. Many previous attempts have been made to improve the situation without complete success. We are not convinced that any of these suggestions, if implemented, would eliminate the problem or bring it below the threshold. The only solution, in the opinion of the Board, is that the digester must cease operation and be removed from the Vandermeer site.
G. FINDINGS
The Board therefore finds:
(a) That the Applicants, Richard and Judi Zirger, Ron and Charlene Quevillon and Mary Lavalle have met the threshold test for disturbances with respect to odour and flies;
(b) That they were directly affected by the disturbances;
(c) That the disturbances arise from an agricultural operation, namely the Vandermeer greenhouses and the ancillary digester operation;
(d) That the digester operation is not a normal farm practice in these circumstances; and
(e) That the digester operation must cease operation.
H. ORDERS
The Board therefore orders that:
(1) The digester system at Vandermeer Greenhouses, 2021 Four Mile Creek Road, Niagara-on-the-Lake shall commence to shut down effective immediately;
(2) Within 20 days of the date of this Order, all unused feedstock shall be removed from the storage bunkers and moved off of the Vandermeer site;
(3) If the site is still subject to a Certificate of Approval from MOECC, the Respondent shall, within 8 months of the date of this Order provide a Closure Plan to MOECC in accordance with Section 20 of the Certificate and the Board shall be provided with a copy at the same time;
(4) If the site is not presently subject to a Certificate of Approval from MOECC, the Respondent shall, within 8 months of the date of this Order provide to the Board a Closure Plan including, at a minimum, a description of the work that will be done to facilitate the closure of the site and a schedule for the completion of that work;
(5) The Closure Plan shall include the decommissioning and removal from the site of the bunkers for storage of feedstock, the anaerobic digesters and their contents, and the above and in ground storage containers for digestate and their contents;
(6) In accordance with subsection 4(2)(b) of the Act, the Respondent shall, upon request, provide to the agricultural engineer with the Ministry of Agriculture, Food and Rural Affairs assigned to the subject area the status of the closure process from time to time; and
(7) In accordance with subsection 4(2)(b) of the Act, the Board reserves the right to make further Orders as may be needed from time to time to ensure compliance with its decision.
DATE: November 8, 2018