APPEAL NO. 92/13 - PESTICIDE


In the matter of appeal under s15 of the Pesticide Control Act, RS Chap. 322, 1979, against Pesticide Use Permit 214-014-93/94, issued by the Deputy Administrator, Pesticide Control Act, to the Canada Minister of Agriculture.


BETWEEN Citizens Association to Save APPELLANT 1
 the Environment (CASE)

Ecological Health Alliance APPELLANT 2

 Sierra Club - Victoria Group APPELLANT 3

AND Canada Minister of Agriculture RESPONDENT


BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD

Mr. H.D.C. Hunter Chairman
Mr. C. Palmer Member
Dr. J. Smith Member

DATE OF HEARING March 17, 1993

PLACE OF HEARING Braefoot Athletic Centre, Victoria, B.C.

APPEARING For Appellant 1
 Spokesperson Mr. D. Mallard
Witness Dr. J.B. Tatum

For Appellant 2
 spokesperson Ms. K. Young

For Appellant 3
 Spokesperson Mr. M. Najari

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

This was the hearing of 3 appeals against the issuance of a pesticide use permit authorizing the aerial and ground application of FORAY 48B for the eradication of european gypsy moth in Saanich.

Mr. R. Heath, Regional Manager, Pesticide Management Branch, was present throughout the hearing but was not called upon to speak as a witness.
APPEAL NO. 92/13 PAGE 2



EXHIBITS

1A-1 Four sheets relating to the butterfly count
1A-2 Submission of CASE to the Board
2A-1 Submission supported by following documents
2A-1.1 Page from Canadian Journal of Forestry on survival of Bt spores
2A-1.2 Page from report of R.E. Lee on spray drift
2A-1.3 Extract of article by Doris Rapp, M.D.
2A-1.4 Extract from Time magazine on allergies
2A-1.5 Extract from Time magazine on Asthma.
2A-1.6 Report by Capital Regional District (CRD) medical health officer on environmental illness
2A-1.7 CD summary report from Oregon on exposure to Bt
2A-1.8 Extract of 1992 Colwood appeal decision
2A-1.9 Letter from D. Foley of SPEC to Regional Manager, Pesticide Management Branch
2A-1.10 Extract of Oregon report 1985-87 survey
2A-1.11 Affidavit of A. Edamura
2A-1.12 Fax of letter from B.C.M.A. Council on Health Promotion to Dr. Cameron and the Honourable John Cashore
2A-1.13 Letter from Dr. Cameron to Dr. Blatherwick
2A-1.14 Letter from Dr. Cameron to Premier Harcourt
2A-1.15 Data sheet on Foray 48B from Novo Nordisk
2A-1.16 Fax Jon Bell to Novo Nordisk
2A-1.17 "Green report" on Oregon study 1985/87
2A-1.18 Fact sheet on Btk
2A-1.19 Agriculture Canada memo on Foray 48B
2A-1.20 Foray 48B information
2A-1.21 Transcript of part of "Market Place" program
2A-1.22 Chapter from "Silent Spring"
2A-1.23 Ontario Natural Resources news release
2A-1.24 Article on gypsy moth by Dr. K. Graham
2A-1.25 Talk by J. Myers on cost-benefit analysis of gypsy moth eradication program
2A-1.26 Dr. Cameron critique of Vancouver 1992 report
2A-1.27 Extract of article on Bt by M.H. O'Brien
2A-1.28 Article by B.C. Ministry of Health on Bt
2A-1.29 Article by Dr. R. Ellis on Btk
2A-1.30 1992 report on health surveillance study of Vancouver spray program
2A-1.31 Extract of CRD report to reduce air pollution
2A-1.32 Submission
2A-2 Extract of unsigned article on pesticide regulation
2A-3 CRD environmental illness health survey
2A-4 Final submission

APPEAL NO. 92/13 PAGE 3



3A-1 Article by Pimental and Levitan on effectiveness of pesticides
3A-2 Extract of report on drift
3A-3 Article in Journal of Pesticide Reform on inerts
3A-4 Extract of article on Btk on beet armyworm
3A-5 Extract of article on Bt
3A-6 Article in Alternatives on forest spraying with Bt
3A-7 Article by B.C. Ministry of Health on Bt
3A-8 Extract of article on resistance to Bt in gypsy moth
3A-9 Extract of article on resistance to Bt in Indianmeal moth and almond moth
3A-10 Extract of article on resistance of Bt in Diamondback moth
3A-11 Extract of article on tobacco budworm
3A-12 Extract of article on distribution of Bt in soil
3A-13 Extract of article on Bt in water
3A-14 Extract of article on Bt on fir and spruce
3A-15 Extract of article on development of Bt use
3A-16 Extract of article on survival of Bt spores in soil
3A-17 Affidavit of D.L. Dahlsten
3A-18 Report by Dr. Graham to Vancouver City Council
3A-19 Affidavit of J. Myers
3A-20 Affidavit of A. Edamura
3A-21 Report on ocular infection
3A-22 Article in EMS Microbiology Letters
3A-23 Extract of article on comparison of Bc and Bt
3A-24 Extract of article on Bc and Bt
3A-25 Article in Vancouver Sun
3A-26 Article in Vancouver Sun
3A-27 Extract of forestry statistics
3A-28 Federal news release
3A-29 Discussion paper on gypsy moth

R-1 Book of information submitted by Respondent
R-2 Proceedings of information symposium on gypsy moth, 1985
R-3 Results of bioassay of Btk in Vancouver, 1992
R-4 Canada gazette, March 1993
R-5 Results of gypsy moth questionnaire, Victoria, 1993
R-6 "Green Report" on Oregon study, 1985/86
R-7 Memo from J. Irvin to N. Kummen
R-8 Extracts of 1912 and 1913 reports on gypsy moth
R-9 Table of occurrence of gypsy moth in B.C.
R-10 Letter from Dr. T. Johnstone to S. Sela
R-11 Departmental environmental assessment form
R-12 Map of spray area
APPEAL NO. 92/13 PAGE 4



BACKGROUND

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

The Three Appellants filed appeals against Pesticide Use Permit (PUP) 214-014-93/94 which permits the spraying, by aerial or ground means, of FORAY 48B over some 80 hectares of suburban lands in Saanich in order to eradicate gypsy moth. The grounds of appeals were as follows.

Appellant 1's grounds were that the spray would kill or seriously damage other lepidoptera than the target species and would consequently impact birds which feed on lepidoptera.

Appellant 2's grounds were that the contents of the FORAY 48B cause illness in some humans.

Appellant 3's grounds were that:

1. the trapping of 10 moths did not justify the indiscriminate use of aerial spraying;
2. there has been no environmental impact assessment;
3. aerial spraying is inefficient and results in the overuse of the spraying agent;
4. the spray would eliminate other lepidoptera and there may be endangered species in the area; and
5. scientists have warned of possible poisoning by Bt.


EVIDENCE

The evidence produced by all the Appellants consisted almost entirely of extracts from publications. In many cases these were of only parts of the reports and their origins varied from well-known scientific journals to Time magazine. Mr. Mallard said that CASE has begun and is developing a count of butterflies in the whole area. Counting moths is very difficult because they are almost all nocturnal. No evidence was produced of any count in the proposed spray area. Dr. Tatum agreed that most species would be able to recolonise the area quickly, with the possible exception of the Hairstreak butterfly which did not move around freely. He was not sure, however, whether this species was actually present in the proposed spray area.

The second Appellant alleged that "hundreds" of people had been harmed in the Vancouver spraying of 1992. No evidence of this allegation was produced and it appeared to be based on a distrust of the medical study conducted of this program. Evidence was
APPEAL NO. 92/13 PAGE 5



given of a study in Oregon where some 120,000 persons lived in an area sprayed from the air. Three persons were considered as possibly having been affected; but, as they all had prior medical problems, the report said that the evidence was inconclusive as to whether they were affected by the spray. Dr. Cook was one of the doctors who conducted the intensive study into the health effects of the Vancouver spray program. His evidence was that they had not found a single person affected by the spray, other than ground applicators who had experienced some skin irritation.
The third Appellant also relied on extracts of scientific reports and on evidence given by the Respondent.

Both the first and third Appellants had been Appellants against a similar permit granted in 1992 to spray an area of Colwood, a suburb near Victoria. Neither Appellant produced any evidence whatsoever of any ill effects to humans or lepidoptera or birds in anyway connected with the Colwood spray.

The Respondent's evidence indicated that there was a risk of mass or masses of egg clusters in the proposed spray area and if these hatched uncontrolled there was a serious risk of the infestation getting out of control. In Eastern Canada and Eastern United States the moth had got totally out of control and was causing extensive damage. More significantly for this application was the risk that, if the moth were thought by others to be uncontrolled, a quarantine would be imposed on B.C. which would have a very damaging effect on many exports, particularly lumber.

There was no requirement for Agriculture Canada to prepare an environmental impact study other than for departmental use and this had been done and was produced in evidence.

It was admitted that there would be some drift from the spray; however, it would be less from aerial spraying than from ground spray. Aerial spray would persist for a few hours at most, but ground spraying would have to continue for days.

All three Appellants suggested that volunteers could search and destroy egg masses and thus avoid the need for spraying. The Respondent said that this had been tried and had not worked. A contract has been made with persons on Salt Spring Island to do manual work, but the physical characteristics of the areas were very different and the volunteers were well organized. The Appellants had no firm plan in mind and could not offer any firm commitment.

At the end of the hearing, the Respondent made a closing address orally, but the Appellants were all permitted to submit their closing statements in writing by Friday, March 26, 1993.
APPEAL NO. 92/13 PAGE 6


Final submissions were received from the first and second Appellant, but not the third.


DECISION

The Board heard no evidence to convince them that the use of FORAY 48B, either by aerial spray or ground spray, will cause any significant damage to the environment. Some lepidoptera other than the target gypsy moth will probably be killed and there may be a slight reduction in the food supply for some birds but there was no evidence of any endangered species in the area and native species of lepidoptera will quickly recolonize the area. On the other hand the evidence was convincing that if the gypsy moth spreads it will quickly get out of control. If this happens there is a grave risk to the local vegetation and the certainty of significant costs in seeking control, as opposed to the present attempt to eradicate the moth, and the grave risk of the whole region being placed under quarantine. Such a quarantine would cost the economy millions of dollars.

Therefore, it is the unanimous Decision of the Panel to reject the three appeals and uphold the permit as issued.


COMMENTS

The permit is for two years. If it appears that complete eradication has not been achieved after the completion of this year's spray program, the Respondent is urged to contact the Appellants as soon as possible to review the possibility of using volunteers to conduct a seek and destroy program and so avoid the need for further spraying.




H.D.C. Hunter
Vice-Chairman
Environmental Appeal Board


April 8, 1993

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