Biosolids – Waste Transfer or Permitted Use?

AgriLaw: October 2010

When will the transportation, storage and spreading of various manufacturing by-products as “biosolid” fertilizer be restricted as waste transfer to the detriment of future agriculture land use? When will such use and application of non-agricultural organic waste material constitute a permitted agricultural use?

The Ontario Municipal Board (OMB) recently considered an appeal of a municipal zoning decision allowing for the storage of a meat processing by-product containing beef tissue residues in former turkey barns on a farm property for application to agricultural lands. The appellant neighbours objected to this proposed use on the basis that it constituted a waste transfer facility and not a permitted agricultural use within the meaning of municipal official plans, by-laws and provincial policy statements.

The OMB described the appellants’ concerns as follows:

“[The Appellant] expressed her concerns about the proposed use from an odour point of view, which is exacerbated by the prevailing winds that pass over the proposed waste storage barns and move toward her home. The turkey barns presented odour problems on an intermittent basis (2 to 3 times per year) when the barns were being cleaned out. The proposed use would, in her opinion, create on ongoing and persistent odour problem. [The Appellant] indicated there were a number of unresolved concerns that had not been adequately addressed by the statutory public meeting under the Planning Act or the C of A process under the Environmental Protection Act. The issues included odour, run off, rodents, traffic and the adequacy of the former turkey barns to house the waste material. The Appellants were also concerned about the impacts that the proposed use might have on land values in the area.”

These concerns related to the proposed use of the site:

“Each day a 30 tonne truck will deposit a load of DAF material on a concrete pad in front of one of the barns. The material will be pushed into each barn and deposited on the field from the rear of each barn. The piles will be 14 feet high and within 5 feet of the walls of the barns. Because weather conditions may delay shipments as much as 100 tonnes of material a day may be handled on the site. The storage buildings will handle eight months of material. The operation will run Monday to Saturday throughout the year from seven in the morning to seven in the evening. The material will be spread on farms within a three to four mile radius. The prime users of the material will be [the owner of the site] owned or leased land.”

The OMB rejected the Appellants’ description of the proposed use “as a waste transfer site using non-agricultural source material.” Instead, the OMB accepted the municipality’s use definition “as a storage site for an agriculturally related product not unlike fertilizer or manure.” In dismissing the appeal, the OMB commented as follows with respect to this alternate use characterization:

“To use [the Appellants’] analysis one would describe an automobile manufacturing plant – as a parts collection facility – the inputs – not the cars – the outputs. The outputs provide a more complete analysis of the nature of the use as an agriculturally related use similar to the storage and application of manure or fertilizer.

The Board finds … the agriculturally related use consistent with the PPS that encourages waste products to be diverted away from landfill sites and encourages agricultural uses …

The Board accepts that the conditions of the Certificate of Approval can deal with the odour and environmental concerns of the Appellants.”

Whether or not storage and application of processed organic non-agricultural materials constitutes waste transfer or a permitted agricultural use depends in large measure on whether the proposed use can be considered as similar to storage and application of agricultural manure or fertilizer. If so, the proposed use may be found consistent with municipal planning objectives and provincial policy.