Hoy Fong Foods, the maker of popular hot sauce Sriracha, has come under criticism from its neighbors who claim that its factory in California is emitting an unpleasant odour. Is this a case of NIMBYism or a legitimate complaint? Perhaps a more pressing question for Ontario business owners is whether or not something similar could happen here?Recently a lawsuit was filed against Huy Fong Foods, the company producing Sriracha, the world renowned hot sauce with the rooster and green capped bottles. The lawsuit sought an immediate injunction to halt the production of the famous sauce because of the complaints filed by the residents in the area who claim that the odour coming from the Huy Fong Foods factory burns their eyes and throats and gives them headaches.
The residents sought an emergency injunction to shut down the company until it no longer produces the alleged “strong, offensive chili odour.” A Los Angeles judge refused to order the residents’ request for an injunction to immediately halt production of the sauce. The judge indicated that he did not have enough time to consider the case and proceeded to schedule a November 22nd hearing to consider the residents’ request for a preliminary injunction.
The residents started complaining to the City about the odour in September shortly after jalapeno harvest began. However, the harvest season is only a couple of months in duration and will be done prior to the November 22nd hearing date. The company stores and processes the chili sauce on an annual basis between September and December. The company has advised that it is working on upgrading its filtration system which will result in the elimination of odours by next year.
Could this happen in Ontario? The short answer is yes. There are numerous cases where odour complaints have resulted in the issuance of an Order by the Ministry of the Environment (“MOE”). An MOE Order can either require that abatement measures be taken to reduce the odour emissions, or, if the company refuses to reduce its odour emissions and work cooperatively with the MOE, the MOE can suspend or revoke the company’s environmental approval resulting in the company having to cease its operations.
The Municipal Act also gives a municipality the ability to seek an order from the Court requiring that all or part of a premise be closed to any use for up to two (2) years. This section has been used by municipalities where odour impacts from a facility have resulted in unbearable conditions.
While it is no long necessary to segregate what was once noisy, smelly or potentially toxic industrial activity from residential areas, many people are unwilling to accept any type of impact on their neighbourhood. Mixed use developments are becoming increasingly more common and supported by environmentalists as they often significantly reduce our dependence on the car. Urban intensification and infill development is also being promoted which often results in industrial/commercial activities being located next to residential uses. However, if a company is unwilling to invest in appropriate noise, odour and other abatement measures the impacts on the surrounding residents can be unbearable. In Ontario residents can contact the MOE Spills Action Centre to advise of any complaints.
We recommend that companies work cooperatively with the surrounding community and be proactive in resolving any complaints from the area residents about their operations. It is however important to distinguish the not-in-my-backyard syndrome (“NIMBY”) from valid concerns. We also caution companies to not give the MOE carte blanche access when they attend the facility to conduct an investigation or inspection. In these scenarios we do recommend that legal advice be sought to deal with the MOE and ensure that they do not overstep their authority.