Intervenor: Vol 24. No 4 October - December 1999

Case Work: Can agri-business take a hint from the Normal Farm Practices Protection Board?

In a rather remarkable decision, the Normal Farm Practices Protection Board agreed with a submission of the Canadian Environmental Law Association that it should look beyond the boundaries of Ontario to determine what, exactly, constitutes "normal farm practice". This has ramifications for farming operations in Ontario, which like the mushroom industry have a small number of producers.

The Ontario government is currently undertaking public consultation on intensive farming practices with the goal of gathering information to develop a plan to support the right to farm while at the same time not infringing on surrounding lands uses. We hope that the Province takes note of the Board's ruling.

THE STORY starts in 1994 when the Mushroom Producers' Co-operative opened its operation next door to Pat Gunby's home. Mushrooms are the second most valuable vegetable crop in Ontario with sales of $111 million in 1998. Some 25 farms in Ontario produce the entire crop. To achieve an economy of scale, five small producers formed the Co-operative to provide mushroom substrate, a composted material required to grow mushrooms.

Unfortunately for Pat's family, the process used by the Co-operative produced an extremely noxious odour. Some of the residents who testified at the hearing described the odours as "putrid", "pungent", "enough to make you gag", "like rotting animal carcasses", and "like rotting meat".

Their children were subjected to taunts when the school bus picked them up or dropped them off. It was impossible for them to entertain or enjoy their own backyard and some individuals had vomited as a result of the odours. Pat and her neighbour Mary Malcolm filed a complaint with the Normal Farm Practices Protection Board and sought CELA's help early in 1999.

Section 5 of the Farming and Food Production Protection Act permits any person directly affected by a disturbance from an agricultural operation to apply to the Board for a ruling on whether the disturbance is part of "normal farm practice". If the Board concludes that the disturbance is the result of normal practice, then the Board must dismiss the complaint. If it is not from a normal practice, the Board can order the operator to cease the practice that causes the disturbance or order the farmer to modify the practice in a way that is consistent with normal farm practice.

The Act defines "normal farm practice" to mean a practice that, "(a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar circumstances, or (b) makes use of innovative technology in a manner consistent with proper advanced farm management practices."

The Board was satisfied that the Gunbys' and other residents' "enjoyment of life has been substantially diminished by the operation of the mushroom composting facility". In effect, the Board found that the odours qualified as a "disturbance" as defined by the Farming and Food Production Protection Act.

The debate at the Board then became whether the way the Co-operative composted materials to produce the mushroom substrate was a normal farm practice. The Board was presented with expert evidence that, in Europe, the first phase (of the three-phase process) is kept indoors, as opposed to outside, as is the practice in Ontario. An aerated floor is used in Europe to keep the process of composting aerobic. In Ontario, less sophisticated handling of the compost often leads to an anaerobic process that produces persistent unpleasant odours which can travel off-site.

The Board also heard evidence that British Columbia has passed a regulation-requiring mushroom composting operations to install aerated floors and operate within an enclosed facility. In addition, British Columbia now requires these operations to also install biofilters to eliminate odours. The Board, however, noted the regulation was new and that the new facilities had not yet been build in accordance with the regulation.

The Board, at the conclusion of its decision states, "We have somewhat reluctantly concluded that the odours created by the [Co-operative] are consistent with normal farm practice.... However, the conventional Phase 1 process is only marginally acceptable in 1999.... We strongly urge the mushroom industry to expend the money that is necessary to develop aerated floors and biofilters in mushroom production in Ontario. Otherwise the entire industry may be adversely affected by a future ruling of this Board which may conclude that the standard of normal farm practice has shifted.... We anticipate the Board would be prepared to hear applications pertaining to the [Co-operative] or other mushroom facilities in the future and as technology develops, the Board may arrive at a different conclusion in the future if presented with similar facts."

Pat Gunby and Mary Malcolm have made presentations to MPPs Doug Galt and Toby Barrett who are leading the Ontario government's public consultation on intensive agricultural operations. CELA will also be filing submissions urging the government to take action to ensure that odours from mushroom composting operations are eliminated by imposing legislative requirements similar to those in British Columbia.

David McLaren is the communications coordinator at CELA