A Quebec firm whose vegetable garden and lawn soils are contaminated with metals is increasing its appeal to the courts rather than complying with federal requirements.
Since 2021, the Englobe firm has been engaged in a legal standoff with the Canadian Food Inspection Agency (CFIA), after the federal agency detected concentrations above standards for three metals in two potting soils: molybdenum , selenium and nickel.
These three substances are part of the list of “metals of concern” monitored by federal authorities. According to the CFIA, “these metals can be harmful to human health and the environment if concentrations in products exceed the level necessary for plant growth.”
Englobe, a Quebec firm specializing in the environment, produces more than 100,000 tonnes of compost and potting soil each year from plant and food residues, bark and shavings as well as from sludge from wastewater treatment plants, called municipal biosolids.
According to the CFIA, “the manufacture of fertilizers and supplements by composting municipal biosolids is likely to result in elevated concentrations of metals and metalloids.”
Two notices of non-compliance
In May 2021, the CFIA took samples of potting soil produced by Englobe at its composting site in Saint-Henri-de-Lévis, a suburb of Quebec. Analyzes then demonstrate that samples of two products, St-Henri Vegetable Ground and St-Henri Multimix Lawn, display concentrations higher than federal standards for nickel, molybdenum and selenium.
The federal agency then allows Englobe to mix part of these soils with other soils in order to reduce the concentrations of these three metals. A new analysis, however, shows that the concentrations are still higher than the standards, and that these have even increased during the operation.
The CFIA then sent a new notice of non-compliance to Englobe on October 21, 2021, thus forcing the firm to suspend sales of the two potting soils. Six months later, Englobe is contesting the agency’s decision in court, in addition to contesting the results of its analyses. It even attacks the constitutionality of the Fertilizers Act.
In a decision rendered on December 12, Judge Sébastien Grammond of the Federal Court completely ruled in favor of the CFIA. The case was appealed by Englobe, which also filed another appeal in Federal Court, on 1er last December.
“It reassures me to see that the Agency [canadienne d’inspection des aliments] does this work,” declares from the outset Stéphanie Roy, professor of law at the University of Sherbrooke. The specialist in administrative law and environmental law says she also finds it “bizarre” that Englobe “does that, contests [la loi]rather than correcting the problem.
PHOTO TAKEN FROM THE UNIVERSITY OF SHERBROOKE SITE
Stéphanie Roy finds it “bizarre” that Englobe is contesting the law, rather than correcting the problem.
It’s expensive, it’s a legal choice that entails significant lawyer fees. They must have good reasons to do this, especially since from a pragmatic point of view, we might think that it would be simpler to correct the situation.
Stéphanie Roy, professor of law at the University of Sherbrooke
The CFIA says it welcomes “favourably” the court’s decision, “which confirms the validity of the clauses of the Fertilizers Act and its regulations. The Englobe firm refused to answer questions from The Pressbut his lawyer, Me Guillaume Lemieux, indicated that “in the coming months, a notice of constitutional question will be sent to the attorneys general of the provinces and an appeal brief will be filed in the court file.”
Multiple arguments
In court, Englobe also filed a report that questions the reliability of the CFIA’s results and asserted that Englobe’s products are safe.
However, when confronted with the evidence submitted by the CFIA, Englobe “abandoned” this argument, maintaining instead “that the Agency should have taken additional samples so that the results were more representative”.
“It is appropriate to underline the evolution of the arguments that Englobe puts forward to contest the detention notices,” mentions the magistrate. Initially focused on the validity of the analysis results, this dispute then focused on the merits of the standards […]then on the invalidity of the Law and the Regulation [sur les engrais] for reasons relating to constitutional law and administrative law. »
PHOTO EDOUARD PLANTE-FRÉCHETTE, LA PRESS
In court, Englobe filed a report that questions the reliability of the CFIA’s results and asserted that its products are safe.
According to Stéphanie Roy, the Court of Appeal could, however, contradict certain arguments put forward by Judge Grammond. This concluded in particular that “when it comes to environmental protection […]the state of scientific knowledge does not make it possible to predict with certainty the occurrence of harm, but only to evaluate, with more or less precision, the degree of risk.
According to the magistrate, the absence of a definition of what constitutes a risk Fertilizer Regulations does not make it invalid. But certain arguments from Englobe could nevertheless be accepted on appeal, believes Mme Roy. “It would require more precise regulations. There is a lack of precision on what poses a risk. An aspect that is not so difficult for the government to correct,” she mentions.
Read the Federal Court decision
Beware of metals in municipal sludge
PHOTO ALAIN ROBERGE, LA PRESSE ARCHIVES
Municipal sludge can contain contaminants harmful to the environment and human health.
Municipal sludge collected in wastewater treatment plants is increasingly used as organic matter to fertilize soils. However, they may contain contaminants harmful to the environment and human health.
In court, the expert retained by the CFIA, Professor Joann Whalen, of McGill University, recalled that the use of fertilizers and supplements can contribute to the accumulation of contaminants, notably metals and metalloids. , in the ground. “These substances are then likely to be absorbed into crops or contaminate adjacent waterways, eventually leading to their absorption by humans. The manufacture of fertilizers and supplements by composting municipal biosolids is likely to result in elevated concentrations of metals and metalloids. »
According to Jean-Philippe Bellenger, professor of chemistry at the University of Sherbrooke, the CFIA must take into account the accumulation of contaminants in the soil, as well as the fact that municipal sludge “is quite concentrated in different contaminants.”
Bellenger explains that potting soil with a certain concentration of metals can be beneficial or potentially toxic, depending on where it is applied.
PHOTO TAKEN FROM THE UNIVERSITY OF SHERBROOKE SITE
Jean-Philippe Bellenger, professor of chemistry at the University of Sherbrooke
A standard is not necessarily representative of a reality on the ground. This is a value considered safe. These standards are expected to evolve.
Jean-Philippe Bellenger, professor of chemistry at the University of Sherbrooke
When revising the Fertilizer Regulationsin 2020, the Federal Ministry of Agriculture had also specified in a summary of the regulatory impact study that “the use of by-products and industrial or organic waste […] as fertilizer and supplements […] also presents new risks due to the potential presence of biological and chemical contaminants. Therefore, the benefits of such materials must be carefully weighed against their potential dangers.”
Eleven metals under surveillance
According to the CFIA, “at low doses, metals such as molybdenum, nickel and selenium are essential to living things. However, these metals can be harmful to human health and the environment if metal concentrations in products exceed the level necessary for plant growth. CFIA standards were established to protect human, animal and plant health and the environment over the long term.”
The Agency monitors in particular 11 metals deemed “of concern”, namely arsenic, cadmium, chromium, cobalt, copper, mercury, molybdenum, nickel, lead, selenium and zinc. The maximum thresholds are established taking into account the cumulative additions of these metals to the soil over a period of 45 years.
Selenium, among others, has been identified by Environment Canada “as an element of concern for environmental quality”.
“All soils that contain a fertilizer load, whatever it may be (synthetic fertilizer, organic, compost, MRF or other), are subject to fertilizer regulations at the national level,” recalls Jean-Pierre Fortin, agronomist and advisor. in a greenhouse at the Quebec Institute for the Development of Ornamental Horticulture (IQDHO). “No matter the material, the presence of metals is an issue that must be controlled,” he adds.