• Frank Bergen v. Assistant Regional Waste Manager

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    Decision Date: June 4, 1998

    Panel: Toby Vigod

    Keywords: Pollution Prevention Order; manure; Best Agricultural Waste Management Plan; stay order; pollution of groundwater

    This was an application for a stay of the decision of the Assistant Regional Waste Manager issuing a Pollution Prevention Order to Mr. Bergen, pending the Board’s decision on his appeal. The Order was issued on the grounds that Mr. Bergen’s agricultural practices were in contravention of the Agricultural Waste Control Regulation and the Code of Agricultural Practice for Waste Management. The Order required Mr. Bergen to cease and desist all application of agricultural waste to land until the waste could be used as a fertilizer or soil conditioner and to develop and implement a Best Agricultural Waste Management Plan (“the Plan”).

    Mr. Bergen argued that to issue a Pollution Prevention Order there must be a breach of the Waste Management Act which he says there was not in this case. He also argued that the Order should be stayed, as summer is the most important time to apply manure and that there would be considerable costs to preparing and implementing the Plan. The Board found that there was a serious issue to be tried in the appeal. On the question of irreparable harm to the Appellant, the Board found that the Appellant would not suffer irreparable harm if a stay of the first part of the Order was not granted. As for the second part of the Order, the Board was prepared to accept that the Appellant would suffer some financial loss that would constitute irreparable harm. The Board found that the balance of convenience weighed in favour of granting a stay of the second part of the Order because the generous time lines provided in the Order itself (12 months for implementation of the Plan) detracted from the Ministry’s argument that there was some sense of urgency to the situation. The Board granted the stay for the second part of the Order.