APPEAL NO.92/12 - PESTICIDE


In the matter of appeals under s15 of the Pesticide Control Act, RS Chap. 322, 1979, on Pesticide Use Permit 214-013-93/94, issued by the Administrator, Pesticide Control Act, to the Canada Minister of Agriculture


BETWEEN Mr. F. Coffey APPELLANT 1
 Ms. L. Lloyd APPELLANT 2

AND Canada Minister of Agriculture RESPONDENT

BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD

Mrs. L. Michaluk Chairman
Ms. H. Michel Member
Dr. J. Smith Member

DATE OF HEARING March 9, 1993

PLACE OF HEARING Fulford Community Hall, Salt Spring Island

APPEARING For Appellant 1
 Spokesperson Mr. F. Coffey
Witnesses Ms. M. Doucet-Schoenfeld
Mr. D. Jason
Mr. M. McCormick
Mr. J. Wilcox

For Appellant 2
 Spokesperson Ms. L. Lloyd

For Respondent
 Spokesperson Dr. B. Frazer
Witnesses Mr. J. Bell
Dr. G. Cook


This was the hearing of 2 appeals against the issuance of a pesticide use permit authorizing the aerial and ground spray of Btk for eradication of european gypsy moth at Fulford Harbour, Salt Spring Island.
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EXHIBITS

A1-1 Submission of Merriam Doucet-Schoenfeld
A1-2 Submission of John Wilcox
A1-3 Draft report of Gail Richards and supporting documentation
A1-4 Submission of Frank Coffey
A1-5 Fax dated March 10, 1993, to Frank Coffey from Brian Baker, California Certified Organic Farmers re: Information on B.t.

A2-1 1993 Fulford Harbour, Salt Spring Island Gypsy Moth Information Summary (map)

R-1 Understanding the Gypsy Moth Threat, Proceedings of an information symposium, 5 November, 1985
R-2 Information submitted to B.C. Environmental Appeal Board, March 1993, by Agriculture Canada
R-3 Memorandum dated March 9, 1993, to Dr. R. Kobylnyk, Director, Pesticide Management Branch, from K.W. Chong, Director, Animal and Plant Health, re: Amendment to Pesticide Use Permit 214-013-93/94
R-4 Community Proposal - Salt Spring Island


APPEALS

The authority for the Panel of the Environmental Appeal Board to hear these appeals is found in the Environment Management Act, and in s15 of the Pesticide Control Act.

The grounds of Appellant 1 and Appellant 2 were based on health concerns in regards to growing food without the use of pesticides. In addition, the Appellants were concerned that the exercise of this permit could result in the potential for the public to perceive that organic growers on Salt Spring Island would not be regarded as producing organic produce.

The orders sought by the Appellants were that the permit be cancelled and alternative solutions be employed to deal with the gypsy moth.

Also considered during this Hearing were permit amendments sought by the Respondent which included: reducing the permit area; eliminating aerial application as an approved method; and reducing the permit duration from two years to one.


BACKGROUND

Gypsy moth specific pheromone bait traps have been placed on Salt Spring Island since the early 1980's as part of a Canada-wide monitoring program.

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Gypsy moths were first found in the Fulford Harbour area in 1991 when 3 male moths were found in a single trap. An intensive trapping program in 1992 resulted in 14 male moths trapped in the same general area.

On October 1, 1992, Agriculture Canada applied to the Ministry of Environment, Pesticide Management Branch for a three year permit to apply FORAY 48B [Bacillus thuringiensis var kurstaki (Btk)] by air and ground for eradication of european gypsy moth from the Fulford Harbour area of Salt Spring Island. The permit application was advertised in the local newspaper and forwarded to the Pesticide Review Committee. No comments were received from the public.

After reviewing the Committee comments, the Deputy Administrator granted a two year permit on January 6, 1993. This permit was appealed by 22 individuals and groups to the Environmental Appeal Board.

Many Appellants requested the permit be stayed until the appeals were heard and decided by the Board. After considering these requests and comments from Agriculture Canada, the Board decided in the public interest to stay the permit until the Board decision was issued, or until April 15, whichever came first.

As a result of an agreement reached between Agriculture Canada and a group of the Appellants, all but 2 abandoned their appeals. The Environmental Appeal Board conducted one Hearing for the two appeals. The Appellants were designated as Appellant 1 and Appellant 2 according to the date of filing the appeal.

Because the aforementioned agreement concerned permit modifications, Agriculture Canada requested certain permit amendments which were considered by the Panel as part of the Hearing.


ISSUES AND EVIDENCE

During the presentation of evidence, several issues were identified and addressed. The major issues raised follow in no particular order.

Issue 1. Gypsy Moth Presence

 The Appellants testified that they did not consider that the number of moths which had been trapped in this area constituted an infestation. Evidence was produced to show that the number of moths trapped had indeed increased, but so had the number of traps placed. Evidence was also
produced to show that due to the type of vegetation and
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 climate in this area, the moth would probably not be able to establish to the extent found in other parts of North America.

The Respondent introduced evidence to show that the moth is not only capable of eating deciduous vegetation, but also young conifer needles. The Respondent, therefore, considers that the moth could do quite well on Salt Spring Island. The Respondent also produced evidence to show that the increased number of moths trapped was not intended to suggest the population is growing. Evidence was produced to show that the normal trapping grid of approximately 1 trap per square mile provides information on moth presence. Once moths are found the trap density is increased to sixteen to sixty-four traps per square mile in an attempt to identify hatching sites, thus enabling a determination of the area most likely requiring treatment. Evidence was produced to show that as a result of the delimitation trapping program, the likely area of infestation had been determined and the program was being modified to address this specific area. Egg masses were also found in this area. The Respondent considered the presence of egg masses to prove that the moth was capable of overwintering and breeding in this area.

On the basis of the evidence presented, the Panel accepts that the moth is capable of establishing in this area, although to what extent is unclear.

Issue 2. Control versus Eradication Programs

 The Appellants contended that eradication programs were not required and that control programs would be sufficient. Testimony was provided to show that eradications programs would not be effective in any case given the constant threat of re-introduction from infested parts of Canada, such as Ontario.

The Respondent provided evidence to show that they have a mandate to prevent the spread of introduced pests such as the european gypsy moth. Evidence was also produced to show that if the moth becomes established here, British Columbia may face trade restrictions to areas which are considered gypsy moth free. The Respondent considers an eradication program successful when no gypsy moths are trapped in the treated area for three years following a treatment program. Evidence was produced to show that, given this definition, the Respondent considers that all eradication programs undertaken to date have been successful.
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On the basis of the evidence provided, the Panel accepts that eradication is preferable to control, and that the definition used by Agriculture Canada for defining eradication is reasonable.

Issue 3. Manual Methods versus Pesticide

 The Appellants produced evidence to show that gypsy moths can be controlled by means other than pesticide, such as manual egg mass search and destroy programs, intensive trapping programs, and the release of sterile moths.

The Respondent agreed that there are many methods by which gypsy moths can be controlled but reiterated that the present program is one of eradication and not simply control. Evidence presented showed the Respondent is using alternative methods, where practical, as part of an integrated pest management program.

The Panel accepts there is a difference between control programs and eradication programs and that, therefore, there will be a difference between the tools effective for those programs. The Panel also accepts that pesticides can form a part of an integrated pest management program.

Issue 4. Public Health and Safety

 The Appellants alleged that as the full formulation of FORAY 48B was not available to the general public or to those using the material, it was not possible to give assurances of safety. Evidence was also produced to show that as Btk contains the same haemolysin as B. cereus, a toxigenic organism of food poisoning, the safety of spraying living cells of Btk on people should be reexamined.

The Respondent produced evidence to show that the full formulation of FORAY 48B is registered for use in Canada for the purpose authorized by the permit under appeal. Testimony was also provided to the effect that although Bt and Bc share a haemolysin, there are many other aspects that the two organisms do not have in common, and, that there has been no evidence of Bt causing food poisoning.

The Panel accepts that the full formulation is registered in Canada, and that the Court of Appeal (Canadian Earthcare Society v Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 55 (B.C.C.A.) has ruled that the Environmental Appeal Board does not have the authority to deal with registration issues.



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The Panel also accepts, however, that the lack of disclosure of the full formulation of pesticides has caused many individuals discomfort. Comment on this issue may be found in the Comments section of this Decision.

Issue 5. Non-target Impacts

 The Appellants produced evidence to show that non-target lepidopterans would be affected by the use of FORAY 48B. The Appellants further contended that the reduction of caterpillars in the area would have a negative effect on birds as the spray would be conducted when birds are feeding young. There was also a concern expressed that the force of the ground spray could knock bird nests out of trees.

Evidence was produced by the Respondent to show that non-target lepidopterans would indeed be affected by FORAY 48B. Evidence was also produced to show that the effects of this would be slight as not all species of caterpillars would be in a susceptible stage at the time spraying occurred, Btk being effective only against young caterpillars. In addition, evidence was produced to show there would be little if any secondary effects on birds in the area. Evidence was produced to show that due to the gypsy moth's catholic and voracious appetite, bird nesting habitat and other caterpillars would be negatively affected through defoliation if the gypsy moth did establish.

The Panel accepts that non-target caterpillars would be affected by the use of Foray 48B, and that they would be affected if the gypsy moth establishes in this area. On the basis of the evidence presented, the Panel finds that any affects experienced by non-target lepidopterans through the use of FORAY 48B would not be unreasonable.

Issue 6. Drift

 Evidence was produced by the Appellants to show that aerial application of FORAY 48B will result in drift. Testimony showed there is a concern that organic produce could be contaminated through drift which could result in growers losing their organic status. In addition, the Appellants were concerned that the public would perceive that because Agriculture Canada had used pesticide on Salt Spring Island that produce was no longer organic. Although there is no standard which defines "organic" in British Columbia, evidence was produced to show that FORAY 48B is not approved for use by organic growers in the USA.

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 The Respondent agreed that drift could occur but testified it would be minimal. Evidence was produced to show that the British Columbia Association for Regenerative Agriculture considers liquid forms of Bt which do not contain xylene are allowed to be used in the growing of organic produce. The Respondent produced evidence to show that FORAY 48B does not contain xylene. In addition, the Respondent offered to consider testing the Appellants' produce to confirm the presence/absence of Btk should the spray program proceed. Evidence was produced to show that FORAY 48B is approved for general crop application in the USA and that such produce is sold in Canada.

The Panel accepts that FORAY 48B is registered for use on crops in the USA but notes it is not so registered in Canada. The Panel also notes that avoiding drift on adjacent fields is not listed as a precaution on the label.

Clearly the evidence shows that drift can be expected during applications of FORAY 48B and there does not appear to be concern with this from the manufacturer or regulator. The Panel noted that Agriculture Canada offered to test the Appellants' produce for Btk but it was not stated what would happen if the test results for Btk were positive.

Issue 7. Permit Amendments

 The Respondent had earlier applied to Pesticide Management Branch for certain permit amendments which resulted from an increased knowledge about the extent of the infestation and an agreement reached with former Appellants. The amendments concerned the area to the treated, the method of treatment and length of the permit. With regards to the size of the treatment area, amendments requested would decrease treatment area from 370.5 ha to 73.6 ha, of which 5 to 10 ha would actually be treated. The smaller area had been determined as the focal point for treatment following the delimitation trapping program. Due to the time required to process the data from this trapping program, this information was not known at the time the application for the pesticide use permit was made. As Agriculture Canada had decided to individually treat certain areas within this smaller area, aerial application was no longer contemplated, and they requested the permit be amended to reflect this intention. As a show of good faith, the Respondent requested that the permit duration be changed to one year to reflect the agreement reached with the former Appellants which included an intensified manual search and trap program.



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The Panel appreciates that the Respondent had not refined the area requiring treatment by the time the application for the pesticide use permit had to be made. The Panel is also of the opinion that non-target effects arising from the use of FORAY 48B can only be considered reasonable when treatment is restricted to those areas which have a demonstrated need to be treated.


DECISION

In making this Decision, the Panel of the Environmental Appeal Board has carefully considered all evidence and comments placed before it during the Hearing whether or not specifically reiterated here.

FORAY 48B is a full formulation pesticide which is federally registered for use in Canada. The regulating authority, Agriculture Canada, has determined the product will not pose health or environmental hazards if used within certain conditions. As previously discussed, registration issues are not within the mandate of the Environmental Appeal Board.

What the Panel must determine is whether the exercise of the permit under appeal will result in unreasonable adverse environmental impact. In so doing, the Panel must weigh any adverse effects associated with the use of the pesticide against the possibility of the moth becoming established.

The Panel has accepted that the moth could establish on Salt Spring Island and that this could result in adverse effects to other species and lepidopterans. There was no evidence to show that the use of FORAY 48B as allowed by the permit and the label would result in adverse effects on human or environmental health.

As there will be some non-target lepidopterans which could be affected by the spray program, the Panel is of the opinion that only those areas which truly require treatment should be treated. This would seem to support the Respondent's requests for decreasing the size of the treatment area and deleting the aerial application.

The Panel also supports the agreement reached between the former Appellants and the Respondent regarding the intensified use of alternative methods and respects the Respondent's request to decrease the term of the permit to one year as a show of good faith.

Therefore, although the evidence presented shows that the exercise of the permit as structured will not result in an adverse environmental impact, the Panel will grant the Respondent's amendment requests.
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Pesticide Use Permit 214-013-93/94 is amended as follows:

the completion date of pesticide use permit 214-013-93/94 is amended to 93/06/30.

Item 9, Application Method is deleted and replaced with:
Application by ground equipment, including a hose and gun operation elevated on a platform, possible tree climbing, a rotomist sprayer or normal hose and gun operated from the ground, or backpack equipment.

Treatment area is deleted and replaced with 73.6 ha. The Respondent is hereby ordered to submit to the Deputy Comptroller, within 5 working days of receipt of this Decision, a map showing the 73.6 ha within which FORAY 48B treatments will be undertaken.

Quantity is deleted and replaced with 500 BIU/application (40 litre product/application)

Item 4 Additional Information is deleted and replaced with:
A maximum of 4 ground treatments shall be applied to the treatment area. Quantity of pesticide reflects the intention to treat up to 10 ha within the 73.6 ha general area.

Therefore, it is the unanimous decision of the Panel that, subject to the foregoing amendments, the appeals are dismissed.


COMMENTS

There were issues identified in this hearing which are not within the jurisdiction of the Environmental Appeal Board on which the Panel offers comment.

Full Formulation of Pesticides

The fact that the full formulation of FORAY 48B is not disclosed to the public was an issue in these appeals. While it is possible to learn what the active ingredient is, it is not possible to learn what inerts also accompany the active ingredient.

Evidence was produced to show that 90 percent of FORAY 48B consists of water, Btk, the residual fermentation growth material and a food approved carbohydrate. The remainder of the formulation consists of ingredients which are used in food or food processing in Canada and the United States. FORAY 48B does not contain any volatile solvents.

The Panel has no reason to doubt this information. One must wonder however, given the apparently benign nature of the constituents, why the formulation is not released.
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The Panel recommends that Agriculture Canada consider requiring the release of the full formulation of any pesticide which is approved for use by way of aerial or ground application in urban areas.

Application of FORAY 48B to Fruit Trees

The Pesticide Control Act states pesticide use permits are required if pesticide is to be applied to public land. There is no authority for the Pesticide Management Branch to issue a permit which provides for the application of pesticide on residential or farm land. The authority for Agriculture Canada to apply pesticide on private property is found in federal legislation. Therefore, although Agriculture Canada has announced its intent to spray both private and public land, this permit covers only the applications which may occur on public land and only this aspect of the treatment is before the Panel.

The FORAY 48B label is not clear as to whether fruit trees on public land may be sprayed. The label provides for application to forest, woodlands, ornamental trees and shrubs and urban areas.

It would appear, then, that fruit trees in rural areas which are on public land and are not officially harvested could be viewed as ornamental trees and could, therefore, be sprayed. Fruit trees which are on public land in urban areas may be sprayed as they would fall within the broad "urban area" classification on the label.

If, however, there were fruit trees on public land which were officially harvested and thus were not ornamental trees, an argument could be made that those trees could not be specifically ground sprayed, but could be aerially sprayed if the area was
classified as "urban". Obviously, this label as presently worded could lead to some ridiculous and absurd conclusions.

For the purposes of this hearing, the Panel is of the opinion that as fruit from fruit trees on public land is not officially harvested, and as the trees are viewed as ornamental, that it is not a violation of the label for those trees to be sprayed.

While the issue of label clarity is not an issue over which the Panel has jurisdiction, the Panel brings it to the attention of those involved so a more thorough examination may be conducted by those with the appropriate jurisdiction.



Linda Michaluk, R.P. Bio.
Chairman
Environmental Appeal Board

April 8, 1993

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