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Here is the presentation by Meredith James on Farm Animals, Manure and Environmental Law for the Animal Law section of the OBA.
The presentation focuses on the manure produced by farm animals. In particular, the presentation looks at how manure is regulated and how violations of the acts governing nutrient management and discharges to the environment are enforced.
Recent case law in the area shows a number of trends in enforcement:
· Substantial fines
· - see e.g. R. v. van Boekel
A discharge to into waters or a shoreline impairing the quality of the water, is an offence under s. 30(1) of the OWRA and subject to a minimum fines on a first offence of $25,000, for corporations, and $5,000 for individuals. The fines imposed may, however, be significantly higher. In R. v. van Boekel two corporations were each fined $50,000 for discharging pig manure into two different water courses.
· Charges against Directors and Officers
R. v. van Boekel is also an example of the risk of Directors and Officers (D&O) liability under the OWRA. The director was fined $20,000 for failing to take reasonable care to prevent the discharge. Section 116 of the OWRA states that D&O must take reasonable care to prevent the corporation from: an unlawful discharge; failing to notify the MOE of such a discharge; hindering a provincial officer, including by providing false information; failing to install, maintain, operate, etc. equipment required by an approval; or contravening an order or direction under the OWRA.
· Charges against individuals
· - see e.g. R. v. Martin, 2013 CarswellOnt 18752
Mr. Martin had arrangement to use the manure produced by O&E Farm’s 1,500 pigs. He pumped approximately 100,000 gallons from an under barn storage tank to an earthen storage lagoon. The following day, the operator of the farm learned that there was manure in a nearby creek and, when he checked on the lagoon, he found that most of the 100,000 gallons was gone. The investigation found that a rodent, possibly a ground hog, had excavated a tunnel in the side of the lagoon. The tunnel allowed pig manure to reach a field tile and from there, a municipal ditch and the creek.
Mr. Martin failed to inspect the lagoon before pumping the manure. He plead guilty to a violation of s. 30(1) of the OWRA and was fined $15,000. The charges against the Farm were withdrawn.
· Charges against engineers and contractors
· - see e.g. R. v. Gillette Farms, 2008 CarswellOnt 10061 and R. v. Gemtec Limited
In the field of manure management, engineers play a number of important roles, including ensuring that manure lagoons are properly constructed. In R. v. Gillette Farms, a dairy farm hired a construction company to build a new earthen lagoon to store liquid manure. The lagoon was built to the specifications outlined in a sketch provided by a Director of Gillette Farms. Unfortunately, the lagoon leaked into a nearby river.
The construction company plead guilty to discharging or causing or permitting the discharge of the liquid manure to the river and was fined $30,000 – $5,000 more than the minimum. The farm plead guilty to constructing the manure lagoon without having it designed by a professional engineer and failing to have it inspected by a professional engineer upon completion. It was fined $5,000 for each count.
Dianne Saxe, Ontario Environmental Lawyer
Reprinted with permission from the Environmental Law and Litigation Blog.
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