Mushroom Composting Facility Accident Investigation Redux

A 3-D animation depicting the sequence of events that occurred at a mushroom composting facility in Langley, B.C. on September 5, 2008.  

✔ Sadly a similar scenario is possible in Ashburn, Ontario in the Oak Ridges Moraine and the overspill (including toxic e coli levels equivalent to raw feces) from GMF can be found after any/every heavy rain entering the local stream, which coincidentally is at the top of the water aquifer. It certainly raises some environmental and political questions when the Province of Ontario completely ignores their own evidence of toxic E Coli levels in the Oak Ridges Moraine’s water aquifer. Especially when it is at a higher elevation to, and entirely supports the City of Toronto’s (GTA) drinking water needs. 

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Stop Industrial Farming in the Oak Ridges Moraine

Who will police the Police? Ashburn Ontario's Fight for the Environment

As farms increase in size and become increasingly industrialized, it’s clear the problem of agricultural pollution is gaining urgency across Canada. The response from most environmentalists and provincial governments is to push for more centralized regulation.

The results? The detrimental effects of such regulatory changes have proven to actually exacerbate, rather than curb, pollution. Specifically related to the Hamlet of Ashburn’s ongoing struggle with GMF Mushroom Farms - - the nonsensical “right-to-farm” laws (passed by every Canadian province in recent decades) have essentially freed farmers from common-law liability for the nuisances they create. Moreover, these “right-to-farm” laws have made possible an unsustainable intensification of agriculture causing Ashburn residents to question many common assumptions about environmental regulation and human rights (or lack thereof in this case.)

Over ten years ago when this all started, Ashburn residents believed the Province would step in and rectify the situation due to the deaths in Walkerton, Ontario (water-related E Coli poisoning) and the publics increasing appetite for environmental protection. But don’t take the residents of Ashburn’s word for it. Toxic E Coli levels were found by a government agency in Ashburn, Ontario that were directly attributable to GMF Mushroom Farms. It certainly raises some environmental and political questions when the Province of Ontario completely ignores their own evidence of toxic E Coli levels in the Oak Ridges Moraine’s water aquifer. Especially when it is at a higher elevation to, and entirely supports the City of Toronto’s (GTA) drinking water needs.

Greener Pastures: Decentralizing the Regulation of Agricultural Pollution

Read exert on the Hamlet of Ashburn’s ongoing struggle with GMF Mushroom Farms (Ontario, Canada) in Elizabeth Brubaker’s book “Greener Pastures: Decentralizing the Regulation of Agricultural Pollution‬”.

GREENWOOD MUSHROOM FARMS - FALLOUT

Making a case for Social Justice...

LOVE THY NEIGHBOUR? THE RESIDENTS OF ASHBURN, ONTARIO AND GREENWOOD MUSHROOM FARMS (GMF)

Since GREENWOOD MUSHROOM FARMS set up operations more than a decade ago, it has plagued its neighbors with more than just foul odors. The odors – a dense fog produced by the composting of the substrate in which mushrooms are grown – have sickened some nearby residents, burning their eyes, noses and throats and making breathing difficult. (See pictures below)

[Ashburn Unknown Toxic Fog SE | Early Evening]


[Ashburn Unknown Toxic Fog N | Early Evening]


The residents of Ashburn, who once enjoyed the peace and tranquility of country living in the Oak Ridges Moraine, now talk of coughing, shortness of breath, wheezing and chest pain. When the wind is blowing from GREENWOOD MUSHROOM FARMS, even simple things like eating outside, working in the garden, or hanging clothes on a line are out of the question. Local residents must close their windows, even in the hottest summer weather. Local residents only want GMF to find another, more appropriate, site for its substrate preparation. Alternatively, they would like GMF to enclose its composting operation to attempt to confine its odours. Whatever the means, their ends are clear: The citizens of Ashburn are requesting an injunction ordering GMF to not discharge noxious, toxic emissions.

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CREATING AN ‘UNDEVELOPED LANDS PROTECTION ACT’ FOR FARMLANDS, FORESTS, AND NATURAL AREAS

SUMMARY
Under nuisance law, bothersome activities conducted on farmlands, forests, and natural areas are being enjoined. The cessation of activities on these lands is sometimes detrimental to the ecology of an area or the continued economic viability of agronomic pursuits. As a result, some of our nation’s farmlands, forests, and natural areas are unnecessarily being lost to development. Because positive attributes of undeveloped areas are undervalued, the environmental community might lend support to owners of these lands in the form of a more forceful defense against nuisance lawsuits.

Drawing upon an economy of nature, new legislation called an “Undeveloped Lands Protection Act” is proposed. Ecological and civic-societal objectives are incorporated in a legislative proposal that would offer owners of undeveloped lands greater protection against nuisance lawsuits. The anti-nuisance legislative response is intended to foster a debate that will lead to greater protection for our natural resources.

[Read Full Report]

INVASIVE AGRICULTURE

August 21st, 2004 | ASHBURN, ONTARIO

Last month, 150 residents of Ashburn, Ontario, filed a civil lawsuit against Greenwood Mushroom Farms (GMF,) claiming the stench from the farm has created a nuisance.

Thanks to a provincial law designed to promote agriculture, the Judge hearing the case will have to consider not whether GMF's operations are "harmful" but whether they are "normal" – a standard that defies economics and undermines the property rights of all rural residents.

Since GMF's establishment a decade ago, it has plagued its neighbours with foul odours. The odours – produced by the composting of the substrate in which mushrooms are grown – have sickened some nearby residents, burning their eyes, noses and throats and making breathing difficult. They have disrupted lives in countless other ways, as well. No longer can those living near the farm plan on eating outside, hanging clothes on their lines or working in their gardens. When the odours are strong, they must close their windows, even in the hottest weather. Their dogs pick up the odours and bring them inside. Their clothes pick up the odours and take them to work. Colleagues comment. Friends and relatives stay away.

Local residents, many of whom have lived on and farmed their land for decades, have nothing against the odours associated with traditional farming operations. But these are no ordinary odours. Neighbours liken them to the smells of ammonia, rotten eggs, decaying cabbage and fecal material. They describe them as noxious, rancid, foul and horrendous. At times, they say, they have made living in the vicinity unbearable.

GMF's new "neighbours" want GMF only to find another, more appropriate, site for its substrate preparation. Alternatively, they would like the farm to enclose its composting operation to attempt to confine its odours. Whatever the means, their ends are clear: They are requesting an injunction ordering GMF to not discharge noxious emissions. They are also asking for more than $10-million in damages.

The residents of Ashburn, Ontario have a classic nuisance claim: Greenwood Mushroom Farms (GMF) has violated their common law property rights by interfering with the use and enjoyment of their properties. Until 1988, their recourse would have been straightforward. If they could have convinced the court of the nuisance, they would have been entitled to damages and an injunction.

But things are no longer so simple. In 1988, the Ontario government severely undercut property rights by limiting farmers' liability for the nuisances they created. It passed the Farm Practices Protection Act, which specified that as long as a farmer did not violate one of several statutes, he would not be liable in nuisance for any odour, noise or dust resulting from a normal farm practice.

A decade later, under the new Farming and Food Production Protection Act (FFPPA), the government expanded the list of protected disturbances to include flies, light, smoke and vibrations. It also broke the link between compliance with statutes and protection from civil liability. As of 1998, any farmer – not just one who complies with statutes – "is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice."

The FFPPA defines a normal practice as one "conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances" or, alternatively, as one that "makes use of innovative technology in a manner consistent with proper advanced farm management practices." The Ministry of Agriculture offers this test of normalcy: "Would a farmer with average, to above average, management skills use this same practice on his/her farm under the same circumstances?"

This isn't the first time either. GMF's practices have been debated in the courts before. Almost nine years earlier, 19 neighbours sued GMF for disrupting their lives and the use of their properties. In 1999, trial judge Donald Ferguson determined that odours from the farm's composting process did indeed constitute a nuisance. He acknowledged that the mushroom farmers had taken "all the reasonable precautions possible in the current state of the art of mushroom composting." However, he concluded, "the use of the defendants' land for composting is unreasonable having regard to the fact that they have neighbours."

Justice Ferguson had no trouble deciding that GMF's practices were not "normal", in part because the farm operated "in an area where the nuisance it produced was completely out of character." The intensity and frequency of the nuisance, he found, had "fundamentally changed the rural environment the plaintiffs had enjoyed before." He awarded $263,500, plus interest, in damages.

In 2001, the Court of Appeal upheld the decision. The following year, the Supreme Court refused GMF leave to appeal. Usually, it isn't the courts that decide whether a farming practice is normal, and therefore acceptable. That determination generally falls to the government-appointed Normal Farm Practices Protection Board (NFPPB). The board holds hearings into complaints. If it finds that the disturbance complained of results from a normal farm practice, it dismisses the application.

Despite the earlier court rulings, the NFPPB is currently conducting its own investigation into Greenwood Mushroom Farms. The board has insisted that it is not bound by Justice Ferguson's decision and has hinted that its conclusion might be different: "Even though normal farm practices may cause 'discomfort and inconvenience' to other persons, those discomforts and inconveniences are the price which may have to be paid if the Province of Ontario chooses to maintain viable agricultural businesses."

In the past, the NFPPB has shown considerable sympathy for mushroom farmers. In a 1999 decision concerning the Mushroom Producers' Co-operative in Burford Township, the board "somewhat reluctantly" concluded that conventional substrate composting was consistent with normal farm practices. It acknowledged that the process created extremely unpleasant odours – odours so unpleasant that they made some nearby residents vomit. It expressed its sympathy, saying "there is no doubt that their enjoyment of life has been substantially diminished."

The board admitted that mushroom farmers in three other provinces and in several European countries used less offensive methods of substrate production. But it decided that the use of such alternatives remained at an experimental stage in Ontario, and could not yet be considered custom or standard. Because conventional composting methods remained standard in the industry, they would be protected as normal practices under the FFPPA.

A system that permits farmers to harm their neighbours with impunity, as long as they do so using normal practices, strikes many as unjust. Justice Ferguson admitted to being troubled by the act, explaining, "From the plaintiffs' point of view it does not seem just that the neighbour should suffer a serious loss without compensation in order that the whole community can benefit from the production of agricultural products."

Writing for the Court of Appeal in the same case, Justice Robert Sharpe expressed similar reservations: "This Act represents a significant limitation on the property rights of landowners affected by the nuisance it protects. By protecting farming operations from nuisance suits, affected property owners suffer a loss of amenities, and a corresponding loss of property value. Profit-making ventures, such as that of the appellants, are given the corresponding benefit of being able to carry on their nuisance-creating activity without having to bear the full cost of their activities by compensating their affected neighbours. While the Act is motivated by a broader public purpose, it should not be overlooked that it has the effect of allowing farm operations, practically, to appropriate property value without compensation."

No one understands this better than Greenwood Mushroom Farm's neighbours. Back in 1996, Patricia Pyke, who has since fled the neighbourhood with many others, wrote in her journal about a rare respite from the mushroom farm's stench:
"I stood outside this morning, it was pouring rain and I just drank in the smells of this beautiful spring morning. How precious smells can be. The smells of the earth, the rain, were indescribably wonderful. How wrong it is that [GMF] could just move in and take all this all away from us." Where's the justice?

LAWSUIT LAUNCHED AGAINST GREENWOOD MUSHROOM FARMS (GMF) IN PROVINCE OF ONTARIO

July 9, 2004 | Press Release

ASHBURN, ON - A lawsuit claiming more than $10 million in damages and a private prosecution under the Ontario Provincial Offences Act were both filed yesterday against one of Ontario's largest mushroom producers, Greenwood Mushroom Farms (GMF.)

The lawsuit is being brought by 150 residents of Ashburn, a hamlet in the Oakridges Moraine in the Town of Whitby about 30 kilometers north-east of Toronto. Since 1994, many have had to endure what records show are horrific odors, likely being caused by outdoor composting of large quantities of raw manure used to make mushroom bedding substrate. This activity is often conducted at sites well away from development, but Greenwood continues the practice within a few hundred metres of some residents' homes.

In 1999 detailed log books and testimony identified the frequently overpowering stench as "putrid, rancid" and "nauseating." This evidence was sufficient enough to persuade an Ontario Provincial Judge (Ferguson) to award 16 local residents under $300,000 in damages.

That decision was unsuccessfully appealed by Greenwood Mushroom Farms (GMF) to the Supreme Court of Canada level.

"We've been appalled that the problems didn't just stop right there," said Ken Giles, one of the original claimants. "Especially as the Oakridges Moraine is the aquafir that feeds the GTA (Greater Toronto Area.)" "You'd think that we'd have learned our lesson from the Walkerton tragedy" he furthered. "One might wonder what the mandate and responsibilities of the Ontario Clean Water Agency are, as independent testing has repeatedly identified similar ecoli levels."

Greenwood Mushroom Farms (GMF) then claimed to have exercised due diligence and spent significant amounts to improve their practices. However, further testing by independent-entity CANADIAN ORTECH ENVIRONMENTAL (the former Ontario Research Foundation) clearly seems to establish the opposite.

"The Ministry of Environment's (MOE) guideline is one odor unit. It’s understandable for residents to get quite concerned when readings are at four or five. After three weeks of controlled testing, ORTECH measured more than 300 units at one family's home and over 400 units beside the site itself!”

The Ministry of Environment's (MOE) identified ORTECH that Greenwood Mushroom Farm is “one of the worst odor situations they've encountered anywhere in the past 30 years" said Tom Burnett, a retired chemical engineer who lives in the area. ORTECH has further cited that “when it stinks, it can be very, very bad."

In addition to claiming damages in the lawsuit, a private prosecution under the Ontario Provincial Offences Act has also been commenced.

"ORTECH's scientific evidence appears to conclusively establish that on specific occasions, Greenwood Mushroom Farm (GMF) is causing an 'adverse effect' which violates the Environmental Protection Act. With these extraordinary high and potentially toxic odor levels, combined with high traces of ecoli at levels equivalent to raw feces in the aquifer being found, it seems very difficult for Greenwood Mushroom Farm (GMF) to claim they've exercised proper due diligence.”

“Given that no other independent testing appears to have been performed anywhere near the area, there is likely NO evidence that can contradict these findings" said legal counsel for the residents' group Environment Durham. “The odours are also being investigated by the Normal Farm Practices Protection Board." That investigation is ongoing. However, the Ontario Court of Appeal has already ruled that it's a separate process without power to award, for example, financial damages. The Board also does not have the power to consider Provincial Offences Act charges, so that's clearly separate as well."

If convicted, Greenwood Mushroom Farms (GMF) owners face potential fines and the possibility of imprisonment.

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