Get Biosolids assurances in writing

Get Biosolids assurances in writing, OFA members told

By Nelson Zandbergen - AgriNews Staff Writer

CHESTERVILLE — If lawyer Donald Good had his way, the average farmer
wouldn’t allow companies to cover his land with industrial or municipal biosolids
without written assurances that they will cover him in court.

Good, whose Ottawa practice specializes in agricultural,
food and environmental law, presented his controversial
opinions to a skeptical group of farmers and industry

representatives attending a March 14 biosolids
information session organized by the Dundas Federation
of Agriculture.

If biosolids are indeed safe, he told the audience, then
the companies producing and applying the material
should have "no problem" signing indemnity agreements
with farmers. "If you are ever sued, the generator or
the applicator would cover your cost."

Speading currently happens without that extra bit of
legalese, as many farmers are happy to receive a
source of free fertilizer, and generators to get rid of it.

No farmer in Ontario has ever been sued for allowing
biosolids past the farm gate, and Good conceded the
risk of that happening was "relatively remote." But it’s
not a risk he is willing to overlook. Class action lawsuits
by groups of citizens against farms named on certificates of approval for biosolids
spreading are not out of the question in the future, he
suggested. "All we need is a Walkerton-type problem and they
(the public) will know what farms are the problem."

"Make sure you have a good quality indemnity agreement so it doesn’t come out of your
pocket. If there’s no problem, the companies should
have no problem giving you one. If they do have a
problem, then you have to ask yourself, why?"

He further cautioned, "How many people give away
valuable products for free?"

Good also raised the possibility that farm owners using
biosolids today might face extra red tape when they try
to sell their properties tomorrow. He already advises
prospective buyers to insist that all past certificates of
approval be disclosed by the vendor. In addition, he
forsees the day when buyers, as a matter of routine,
will insist that those owners pay for an Environmental
Study Report before farm sales are finalized.

"You could open yourself to problems for selling your
farm or even mortgaging your farm," he said of the
decision to apply biosolids.

Good started off his segment by noting an article he
had written for Country Guide that had first publicized
his opinion regarding farmer’s potential liabilities in the
disposal of municipal sewage on their land, which had
provoked a strong reaction. He estimated that 80 to 90
percent of the hundreds of calls he subsequently
received had praised the article. "They were mostly
neighbours to farms."

Saying he had no objection to the science behind
biosolids application, the soli-citor pointed out that,
rightly or wrongly, public opinion will play an ongoing
role in the legal risks assumed by farmers using the
material. "It’s a perception problem, but perception
sometimes becomes reality."

To illustrate a burgeoning public distaste, he noted an
incident near the City of Brantford, in which a group of
citizens lay down in front of a truck carrying biosolids
into a field that had been certified for spreading. Their
actions prompted Ministry of Environment officials to
scrutinize the paperwork. Irregularities were found and
the license was pulled. "If those people had not showed
up, the field would have been applied and nobody
would’ve given a damn."

In another case, a man dug and registered a number of
wells along his property line to increase the setback
distance from the sludge-spreading farmer next door.

The point is, some people are getting militant, and one
day, they may force farmers to defend themselves in
civil court. "Many farms are not in the position to chuck
out $20,000 or $30,000 in defense costs," he stated,
adding that farm insurance policies usually don’t cover
environmental issues. However, the companies that
produce biosolids may be in a better position to secure
such coverage, he said, allowing them to place farmers
under that umbrella by signing an indemnity agreement.

The solicitor made a comparison with a situation
currently involving an Ontario farmer who had allowed a
company to drill a 900-foot gas well on his land in 1989,
resulting in the accidental contamination of the local
aquifer with saltwater from down below. A large portion
of a neighbour’s herd died from salt poisoning. The
neighbour sued. The drilling company isn’t paying the
first farmer’s legal fees. Trial date has finally been set
for this October, after years of stress and expense for
the farmer. "You don’t want to be caught in the middle,"
he advised.

Questions arose about the actual level of legal risk. In a
pointed example, one man asked Good if tobacco
farmers had ever been sued for producing their product.
Good confirmed that not a single tobacco grower in
Ontario had ever been sued for playing a role in an
industry acknowledged as responsible for millions of
cancer deaths. However, he wasn’t about to change his
position that the legal risks associated with biosolids are
real.

Waste generators who attended the meeting gave
Good’s ideas a chilly reception.

Erik Apedaile, who runs Parmalat Canada’s biosolids
program at the Winchester milk-processing plant,
acknow-ledged that farmers "do accept some risk.

"Managing agriculture is managing risk. It seems to me if
you’re going to be sued, a neighbour is going to have to
prove they had some kind of damage," he said. "I have
a hard time understanding how a neighbour might prove
any kind of damage. The burden of proof is on the
person suing you."

Apedaile said generators can’t offer indemnification
agreements "when we don’t understand all the risks
associated with it." He added such agreements may not
be of much use "20 or 30 years down the road, when a
company may no longer exist."

George Velema, representing the Domtar pulp and paper
plant in Cornwall, said the generators rely on the
government and the Ministry of the Environment to
oversee biosolids application, instead of the legal
system. "From a generator’s point of view, we’d like to
stay away from this legal hocus pocus," he said, adding
it was a matter of reusing the resources produced by
society. "We need to get away from the legal fearmongering."

"You want the buck to stop with the farmer," Good
replied.

Velema said it was a matter of preven-ting "nebulous"
claims against the company, comparing it to the
controversy invol-ving genetically modified corn. "It’s
not a risk the generator can forsee or come good for."
He later asked Good to estimate the cost of future
indemnity – "What do I tell the corporate lawyer, to sell
him on it?" – but received no answer.

"If you’re going to get something for nothing, you’ve got
to assume some risk," interjected South Dundas Mayor
Johnny Whitteker.

In response to another question, Good said that the
Retail Sales Act makes it unnecessary for farmers to
seek indemnity agreements with fertilizer and pesticide
companies applying those products to the land.
However, he said, the Act wouldn’t cover biosolids
application even if farmers paid for the sludge.

Another man then argued that, far from paying for
biosolids, farmers should receive tipping fees to take
the companies’ waste, just like a landfill.
However, Michael Payne, a biosolids specialist with
OMAFRA, said the idea has been tried but is no longer
considered legal. Being paid amounts to waste disposal.
Receiving it for free, though, constitutes fertilization
of the soil.

One area of biosolids application is actually considered
disposal.

Septage from septic tanks, Payne said, is not subject
to the same spreading regulations as sewage taken
from municipal treatment plants. Compared to municipal
sludge, application of septage on approved sites is
subject to very few restraints.

It is expected this loophole will be closed when the
province passes Bill 81, the Nutrient Management Act.