Kent County residents in court hoping to shut down plant over stench

Dozens of Kent County residents packed into a Moncton courtroom on Friday hoping that a judge would grant them an injunction shutting down a plant that they say is producing an unbearable stench in their community.

Lawyer Mike Murphy argued in Court of King's Bench that the "cumulative effect" of several affidavits and hundreds of complaints shows they have a strong case against Coastal Shell Products.

"We have a municipality, an area of New Brunswick, that increasingly feels like it's being held hostage by a corporation that says it's a farm," Murphy said.

The company responded to the application by asking Justice Christa Bourque to rule that she could not grant an injunction because the residents should have complained first to a provincial agricultural board.

Residents won a short-lived order closing the Coastal Shell Products plant in 2019, and earlier this year the province shut it down for two days after finding crustacean shells weren't properly stored. (Alexandre Silberman/CBC)

Coastal Shell Products says because some of what it produces is used as fertilizer, it is an "agricultural operation" that can't be blocked in court.

The complaints should instead be heard by the Farm Practices Review Board, said Ted Ehrhardt, the company's lawyer.

"The legislation has set up a board to deal with these questions," he told Bourque.

Bourque said she would not decide on that Friday.

Coastal Shell Products, represented in court by lawyer Ted Ehrhardt, says because some of what it produces is used as fertilizer, it is an 'agricultural operation' that can't be blocked in court. (Jacques Poitras/CBC)

If she agrees with the company, residents would have to complain to the board. If she finds for the residents, she can make a ruling herself.

The plant processes crustaceans shells into various products, including fertilizer and animal feed.

Maisie Rae McNaughton from the Kent Clear Air Action Committee said the plant does not appear on a list of fertilizer production companies and she hopes the judge will reject the motion.

"They are not. It's just a hard fact. They are not a fertilizer production company," she told CBC News outside the courtroom.

Despite not ruling on the issue, Bourque allowed lawyers to make their main arguments Friday in the injunction application.

Another lawyer for the residents, Vincent Savoie, was also in court on Friday. (Jacques Poitras/CBC)

They spent more than two hours sparring over the affidavits of several residents who claimed the smell was affecting their physical and mental health, their property values and, in one case, the reputation of their cottage rental business.

"It's one thing to say something bothers me," Ehrhardt said of one claim. "It's another thing to say this is adversely affecting my physical health and well-being."

Bourque struck out some of the claims that she ruled weren't supported by expert evidence but upheld others that another lawyer for the residents, Vincent Savoie, argued "would be considered personal knowledge."

The residents in the former village of Richibucto, now the municipality of Beaurivage, have been fighting to have the plant closed since 2017.

They allege the smell from the plant is so strong it has made some of them sick and has forced a local school to keep children indoors.

They won a short-lived order closing the plant in 2019, and earlier this year the province shut it down for two days after finding crustacean shells weren't properly stored.

But the company's operating licence was renewed in August.

That renewal included a condition that the company install new emissions technology by Nov. 30 or face the revocation of the licence.

Linda Robichaud lives on the same street as Coastal Shell Products and has been unhappy with the smell in her neighbourhood. (Alexandre Silberman/CBC)

Another condition is that the company install "odour control technology" by July 2024.

Ehrhardt said the company should be given the time to do that rather than be forced to close  — which would lead to potentially permanent job and financial losses.

"I've got a client who is going to do something," he said. "They can't do something if they're out of business."

But the hearing was told Friday the primary market for the plant is in Asia, where proteins and enzymes are extracted from the material.

That's why Murphy and Savoie argued that the plant wasn't an agricultural facility and did not come under the jurisdiction of the Farm Practices Review Board.

During his arguments Ehrhardt noted "page after page" of findings from provincial inspectors noting no "odour intensity" when they were in the community.

That's independent evidence, not from the company, he said.

Murphy argued the inspectors were there during the day even though the plant only operated from 8 p.m. to 8 a.m.

Bourque reserved her decision on the injunction application as well.