APPEAL NO. 92/14 - PESTICIDE
In the matter of appeal under s15 of the Pesticide
Control Act, RS Chap. 322, 1979, on Pesticide Use Permit 214-026-93/94,
issued by the Deputy Administrator, Pesticide Control Act, to
the Canada Minister of Agriculture
BETWEEN Lower Mainland Appellant Group APPELLANTS
1-15
AND Canada Minister of Agriculture
RESPONDENT
BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD
Mrs. L. Michaluk Chairman
Dr. E. Keay Member
Mr. C. Palmer Member
DATE OF HEARING March 22, 1993
PLACE OF HEARING Capri Hall, Vancouver, B.C.
APPEARING For Appellant 1
Spokesperson Mr. D. Losito
For Appellant 2
Spokesperson Ms. R. Bundock
For Appellant 3
Spokesperson Mr. K. Johnston
For Appellant 4
Spokesperson Mr. R. Marining
For Appellant 5
Spokesperson Mr. S. Robinson
Witnesses *
Mr. J. Bell
Mr. K.
Chong
*
Mr. B. Vance
For Appellant 6
Spokesperson Mr. P. Hundal
For Appellant 7
Spokesperson Mr. F. Court
For Appellant 8
Spokesperson Ms. T. Halford
APPEAL NO. 92/14
PAGE 2
For Appellant 9
Spokesperson Ms. T. MacAdam
For Appellant 10
Spokesperson Ms. MacKenzie
For Appellant 11
Spokesperson Dr. S. Miller
For Appellant 12
Spokesperson Ms. O. Sairam
For Appellant 13
Spokesperson Ms. E. Chobotuck
For Appellant 14
Spokesperson Mr. G. Smith
For Appellant 15
Spokesperson Ms. N. Weaver
For Respondent
Spokesperson Dr. B. Frazer
Witnesses * Mr.
J. Bell
*
Mr. B. Vance
* In order to allow the proceedings to advance in a
timely fashion, it was agreed by those present that these witnesses
would be called initially by Mr. Robinson and later by the Respondent.
This was a hearing into the 15 appeals filed against PUP 214-026-93/94
authorizing aerial and ground applications of FORAY 48B
[Bacillus thuringiensis var kurstaki (Btk)]
in certain areas of Richmond, Vancouver and Burnaby.
APPEAL NO. 92/14
PAGE 3
EXHIBITS
A1-1 City of Vancouver Submission
A1-2 City Manager's Report to Standing Committee, December
23, 1992
A1-3 Photograph details
A2-1 Richmond Beekeepers Association Submission
A4-1 Society Targeting Overuse of Pesticide Submission
A4-2 Affidavit of Donald Lee Dahlsten prepared for presentation
in the Federal Court of Canada, Trial Division, between Dale Edwards
on Behalf of Citizens Against Aerial Spraying and Canada Minister
of Agriculture (1992)
A4-3 Honda, T. et al. 1991. Identity of hemolysins
produced by Bacillus thuringiensis and Bacillus cereus.
A6-1 FORAY 48B Label
A6-2 Honda, T. et al. 1991. Identity of hemolysins
produced by Bacillus thuringiensis and Bacillus cereus.
A6-3 Pesticide Regulation in British Columbia. Public Report
No. 11. March 1988. Ombudsman, British Columbia
A7-1 Package of newspaper clippings, March 14, 1993
A7-2 Newspaper clipping, March 17, 1993
A7-3 Package of correspondence dated March 2, 1993, from
Burnaby Cariboo RV Park Inc. to Mayor and Council of the City
of Burnaby, and to Agriculture Canada
A7-4 Affidavit of Donald Lee Dahlsten prepared for presentation
in the Federal Court of Canada, Trial Division, between Dale Edwards
on Behalf of Citizens Against Aerial Spraying and Canada Minister
of Agriculture (1992)
A7-5 Package of Novo Nordisk information
A7-6 Package containing information on Burnaby gypsy moth
eradication project and information from Novo Nordisk
A7-7 Letter dated February 22, 1993, from Dr. D. Cameron
to Honourable Cashore, regarding discussion of Noble et al.
manuscript
A7-8 Cost, Benefit and Possibility of Eradication of the
gypsy moth from British Columbia. Talk presented by Judith Meyers,
Zoology and Plant Science, U.B.C., February 11, 1993
A7-9 Graham, K. 1993. The Parade of the Gypsy Moths: An
Overview
A7-10 Excerpt from Organic Gardening Magazine, April, 1993
A7-11 Package of information consisting of permit applications
and maps
A8-1 October 1992 Health Action Newsletter entitled: Warning
of Future Btk Spraying of Populated Areas?
A8-2 Nichols, J. 1985. Continental Perspectives - Pennsylvania
and the Eastern United States. Extract from Understanding the
Gypsy Moth. The Proceedings of an information symposium held
5 November, 1985
A8-3 Package of material containing an Administrative Report,
March 19, 1992, to Vancouver City Council from Medical Health
Officer, and three affidavits
APPEAL NO. 92/14
PAGE 4
A8-4 One page of contract 01162-1-1644/01-XSB between Agriculture
Canada and Dr. R. Mathias
A9-1 Excerpt from Pimental, D. and L. Levitan. 1986. Pesticides:
Amounts applied and amounts reaching pests. BioScience Vol 36
No 2, February 1986. pgs 86-89
A9-2 Excerpt from Ecobichon, D.J. 1990. Chemical management
of forest pest epidemics: a case study. Biomedical and Environmental
Sciences 3. pgs 229-30
A9-3 Package of two articles from Journal of Pesticide Reform
Vol 7 No 4. pgs 6-9 and 24-25
A9-4 Excerpt from Working Group on Synergy in Complex Mixtures.
1986. Synergy: positive interaction among chemicals in mixtures.
Journal of Pesticide Reform. Summer 1986. pgs 11-12
A9-5 O'Brien, M. 1986. But what about the other half?
The fascinating tale of (non-)inerts. Journal of Pesticide Reform.
Summer 1986. pgs 6-7
A9-6 Package of information relating to effect of exposure
of the honey bee and insect orders and families to various varieties
and fractions of Bacillus thuringiensis
A9-7 Excerpt from Subramanyam, B.H. and L.K. Kutkomp.
1985. Moth Control in Stored Grain and the Role of Bacillus
thuringiensis: An Overview. pg 33
A9-8 Excerpt from Oshoki, R.O. and R. Macnaughtan. 1990.
Btk Preparation - Acute Inhalation Toxicity Study in Rats
- In support of registration of FORAY 48B. Summary. pgs 7-9
A9-9 Telefax dated 2/3/92 from Janet Overholt, Novo Nordisk
to Jon Bell regarding FORAY 48B Spray Program
A10-1 Excerpts from selected provincial and federal Acts and
Regulations
A10-2 FORAY 48B label
A10-3 Excerpts from Agriculture Canada Regulatory Directive 93-03
dated February 18, 1993. pgs 9, 13-15
A10-4 Unattributed sheet of questions regarding Bt and FORAY
48B
A10-5 Package of information regarding labelling and classification
of pest control products
A10-6 FORAY 48B: Inert Ingredients. Novo Nordisk
A10-7 Abstract from NIOSH Health Hazard Evaluation Report HETA
85-309-1739 Gypsy Moth Control Program, Eugene, Oregon.
A10-8 Excerpt from Noble, M.A. et al. 1992. Microbiological
and Epidemiological Surveillance Programme to Monitor the Health
Effects of FORAY 48B Btk Spray. pg 5
A10-9 Letter dated October 18, 1991, from Ms. C. Chaffey, Health
and Welfare Canada, to Ms. M. Edwards, Agriculture Canada, regarding
health concerns - Bacillus thuringiensis Insecticides
A10-10 Unattributed information marked page 4
A10-11 Package of letters between Dr. F. Cedar, Agriculture
Canada and Ms. C. Rubin, BC Coalition for Alternatives
to Pesticides
APPEAL NO. 92/14
PAGE 5
A10-12 Excerpt from Handbook of Pesticide Toxicology. Volume
2, classes of Pesticides. Ed. W.J. Hayes, Jr. and E.R. Laws,
Jr. page ?26
A10-13 Excerpt from American Journal of Ophthalmology, February,
1983. page 260
A10-14 Warren, R.E. et al. Bacillus thuringiensis
var israelensis: protoxin activation and safety. Letter
to the Editor, Lancet, March 24, 1984. pgs 678-9
A10-15 Unattributed information dated Sept 20, 1988, bearing heading:
A.Jin Human Pathogenicity of B.t.kurstaki
A10-16 Excerpt from Ecobichon, D.J. 1990. Chemical management
of forest pest epidemics: a case study. Biomedical and Environmental
Sciences 3. pgs 229-30
A10-17 Excerpt from Green, M. et al. 1990. Public health
implications of the microbial pesticide Bacillus thuringiensis:
an epidemiological study, Oregon, 1985-86. pg 852
A10-18 Excerpt from Honda, T. et al. 1991. Identity of
hemolysins produced by Bacillus thuringiensis and Bacillus
cereus. pgs 205, 208
A10-19 Undated memorandum from W.S. Woodrow, EPA Hazard
Evaluation Division to A. Castillo, EPA Registration Division,
to R. Engler, EPA Hazard Evaluation Division regarding Bacillus
thuringiensis registration standard
A10-20 Affidavit of Michael Mandl prepared for presentation in
the Federal Court of Canada, Trial Division, between Dale Edwards
on Behalf of Citizens Against Aerial Spraying and Canada Minister
of Agriculture (1992)
A10-21 Unattributed information from EPA
A10-22 Excerpt from Novo Nordisk Study No 90135. Eye Irritation
Study in Rabbits with the End Product FORAY 48B, batch BBN 6057.
pg 9
A10-23 Excerpt from Berg, N. 1990. Bacillus thuringiensis
var. kurstaki, batch BBB 0073. Acute Intravenous
Toxicity/Pathogenicity Study in Rats. In support of registration
of FORAY 48B. Summary. pgs 14-16
A10-24 EPA action notes, 2 pgs
A13-1 Submission of Second Street Subcommittee of the Second
Street Community Council
A13-2 Blank petition circulated by Second Street Community regarding
Aerial spraying of European Gypsy Moth
A15-1 Submission of Ms. N. Weaver consisting of 27 separate packages
R-1 Submission of Agriculture Canada consisting of 2 packages
R-2 Additional information consisting of 12 separate packages
R-3 Package of media releases and newspaper articles
R-4 Package of information consisting of two letters and
attachments
In addition, written closing statements were received from Appellants
2, 9, 10, 12, 13 and 14.
APPEAL NO. 92/14
PAGE 6
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 for appeal of the Appellants concerned such things
as the health and environmental effects of FORAY 48B, the need
for the eradication program, violations of the FORAY 48B label
pertaining to number and area of applications, violations of the
Pesticide Control Act Regulation, and certain permit conditions
such as the method of application and duration.
The order sought is that the Environmental Appeal Board cancel
the permit or, if upheld, rescind approval for aerial application
and limit Btk use to focused ground-spray application.
In addition it was requested that Agriculture Canada provide
written assurance that fair compensation will be made for losses
suffered from the effects of the spray.
The Panel notes that not all Appellants presented all grounds
nor requested all of the orders presented here. A list of the
Appellants and the original notices of appeal as provided by the
Appellants at the time of filing the appeal form Appendix A and
B respectively of this Decision.
BACKGROUND
The gypsy moth was introduced to North America in the 1800's
in the United States. Gypsy moth presence in various locations
in British Columbia has been confirmed since the 1970's. Its
diet consists primarily of certain deciduous trees although lab
experience has shown it will eat the young growth of conifers.
FORAY 48B is a full formulation pesticide with Bacillus thuringiensis
var kurstaki (Btk) as its active ingredient.
FORAY 48B is specific to lepidopteran larvae and is most effective
against young caterpillars.
In 1991/2 Agriculture Canada applied for and received a pesticide
use permit to undertake an asian gypsy moth eradication program
in the Vancouver area using aerial and ground applications of
FORAY 48B. Appeals against the issuance of this permit were filed
with the Environmental Appeal Board. For various reasons, an
emergency was declared by the Lieutenant Governor in Council under
Section 2 Pesticide Control Act and the spray program was
authorized to proceed without a permit. This had the effect of
cancelling the previously granted permit and, as a result, the
Board was not in a position to hear the filed appeals.
APPEAL NO. 92/14
PAGE 7
In 1992/3 Agriculture Canada applied for and obtained a permit
for the eradication of european gypsy moths. The permit, which
was granted on January 6, 1993, authorized the application of
FORAY 48B by aerial and ground methods to certain areas of Burnaby,
Richmond and Vancouver.
This permit was appealed to the Environmental Appeal Board by
15 separate Appellants. A single hearing was held in Vancouver
March 22-26, 1993, during which all appeals were heard.
Many of those appealing requested the permit be stayed until after
the appeals were heard and decided by the Board. After considering
these requests and the comments from the Respondent, the Board
decided, in the public interest, to stay the permit until the
Board Decision was issued or until April 15, whichever came first.
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. Evidence of infestation
Appellants alleged there was no evidence of an infestation
and contended that, given the climate and vegetation of the permit
area, the european gypsy moth could not establish here in great
numbers.
The Respondent produced evidence to show that if moths
are detected during the standard pheromone trapping program of
one trap per square mile, a delimitation program of sixteen to
sixty-four traps per square mile is initiated. This narrows the
focus for egg mass searches and assists in further refining the
affected area. If it is determined that the moths are reproducing,
an eradication program is initiated. Eradication is deemed successful
if no moths are trapped in the treatment area for three consecutive
years following treatment. Evidence was produced to show that
gypsy moth populations have overwintered in the Vancouver, Burnaby
and Richmond areas. The evidence also showed that information
from the delimitation program has resulted in the 1993 treatment
areas being reduced from roughly 5300 to 430 ha in Richmond and
from 230 to 40 ha in Burnaby. An aerial application is not contemplated
for Vancouver in 1993; ground-based application may be required
in the Sunset tree nursery (City of Vancouver street tree nursery).
APPEAL NO. 92/14
PAGE 8
On the basis of the evidence presented, the Panel accepts that
the gypsy moth has overwintered in the permit area and, therefore,
may be capable of establishing here.
Issue 2. Eradication versus Control
Appellants stated that eradication was not achievable
given the Respondent's contention that european gypsy moths are
continually being reintroduced from other areas. As such, the
Appellants contend the use of tax dollars for this program is
irresponsible. Evidence was provided to show that european gypsy
moth eradication programs had coincided with the implementation
of the pheromone trap in the 1970's. Many Appellants opined that
there was no reason to believe that the european gypsy moth had
not been present before the trap was used and that this was evidence
that the european gypsy moth has been here for some time and has
failed to thrive.
Testimony was given by a witness for the Respondent as
to the nature of the federal Plant Protection Act and Plant
Quarantine Regulations, and to the International Plant Convention
of which Canada is a signatory. Evidence was also provided to
show that if British Columbia is considered to have a resident
population of european gypsy moth, British Columbia would be unable
to export certain trade goods to states such as Washington, Oregon
and California which are deemed to be gypsy moth free. Testimony
was given to show that Ontario faces trade embargoes because of
its european gypsy moth problem.
The Panel accepts that various statutes give Agriculture Canada
the responsibility to prevent gypsy moth infestations and enter
into eradication programs. The Panel also accepts that because
of the possibility of trade embargoes, Agriculture Canada should
continue to pursue european gypsy moth eradication programs rather
than attempt to simply control the population.
Issue 3. Effects of FORAY 48B on Human Health
Appellants produced evidence to show that past use
of Bt has resulted in people being affected. Testimony
showed that during the Vancouver 1992 FORAY 48B spray program
many people felt nauseated, dizzy, and suffered various sinus
complaints and rashes. There was also the suggestion that some
individuals may have died as a result of the program. Evidence
was provided to show that there are portions of the human body
which are alkaline and which may therefore be capable of providing
the specific requirements for activation of the Btk spore.
Evidence was also produced to show that the workers involved
with the 1992 program.
APPEAL NO. 92/14
PAGE 9
experienced discomfort. Many of the Appellants, through
testimony and evidence, challenged the validity of the health
surveillance program undertaken during the Vancouver spray program.
Evidence was produced to show that
because Bt contains the same haemolysin as B.cereus,
a toxigenic organism of food poisoning, Bt should be reexamined
with respect to its human safety. Appellants were also concerned
with the lack of disclosure of the full formulation of FORAY 48B.
The Respondent introduced evidence to show that the 1992
Vancouver FORAY 48B spray program did not result in an increase
of people attending hospital emergency departments and that no
cases of infection caused by Btk in persons, immunosuppressed
or otherwise, resulted from the spray. Evidence produced showed
that a survey of the family practices of sentinel physicians found
no incidence of illness due to the 1992 spray program. The evidence
showed that ground spray workers experienced transient effects
such as eye, nose and throat irritation, dry skin and chapped
lips, although these complaints were more likely to develop in
individuals with a prior history of allergies. These complaints
were thought by the Respondent to be due to either the acidic
nature of FORAY 48B or because the spray program occurred during
hay fever season. It was also noted that the ground spray workers
had exposure 500 times greater than that which the public would
have experienced if they had been directly exposed during an aerial
application. The evidence showed that although Btk was
found in nasal passages of the ground spray workers, there was
no indication that Btk presence resulted in ill effects.
With regard to the existence of alkaline sites within the human
body, the Respondent testified there were no sites which approached
the pH required for Btk spore activation. In response
to the points made concerning similarities between Bt and
Bc, the Respondent stated that while the haemolysin is
the same, there are many other components which the two organisms
do not share. The Respondent testified they are not aware of
any evidence to show that use of FORAY 48B has resulted in food
poisoning. Additional evidence was produced to show that the
caterpillar itself can cause discomfort to people through the
histamine contained on the caterpillar's spines which break off
and are distributed by wind. With regard to the lack of disclosure
of the full formulation, the Respondent testified they too would
like to know what is in the product, although they are not aware
of any evidence to show that the product as presently formulated
and registered had caused serious harm to people.
APPEAL NO. 92/14
PAGE 10
The Panel accepts that FORAY 48B is registered for use 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 challenge federal registration. Given
the fact that the regulatory arm of Agriculture Canada has determined
that the use of FORAY 48B will not pose health hazards if used
within certain conditions, and, on review of the evidence presented
at the hearing, the Panel finds no evidence to show that the application
of FORAY 48B according to label and permit restrictions will adversely
affect people. The Panel does have comments to offer on the
issue of full formulation which are found in the Comments section
of this Decision.
Issue 4. Effects of FORAY 48B on the Environment
Testimony and evidence were produced by Appellants
to show that Bt can have effects on non-target organisms
such as other lepidopterans, birds, bees, beetles, earthworms,
fish and small mammals. Evidence was also provided to show that
Btk can persist in soil and water for prolonged periods.
The Respondent introduced evidence to show that FORAY
48B as used according to label instructions will not result in
unreasonable adverse effects. The Respondent confirmed that FORAY
48B will kill non-target lepidopterans, though, as not all caterpillars
will be at a susceptible stage when the spray is applied, not
all caterpillars will be affected. Evidence was produced to show
that defoliation from european gypsy moth caterpillars will not
only affect other caterpillars but will also result in loss of
bird nesting habitat. Evidence was also produced to show that
Btk, unlike earlier Bt strains does not produce
the exotoxin responsible for mammalian toxicity and mutagenicity.
The Respondent contended that although Btk can persist,
there was no evidence to show this would in any way cause a problem.
Evidence was produced to show that Btk has been used for
many years with no evidence of adverse effect.
The Panel accepts that non-target lepidopterans will be affected
by the use of FORAY 48B, and, that they would also be affected
if the european gypsy moth becomes established. There was no
evidence to show that other non-target species will be affected.
The Panel finds, on the basis of the evidence presented, that
the impact on non-target species is not unreasonable.
APPEAL NO. 92/14
PAGE 11
Issue 5. Alternative Methods of European Gypsy Moth
Treatment
Evidence was presented by Appellants to show that
there are other methods available to control the european gypsy
moth. These methods included european gypsy moth egg mass search
and destroy, sterile release, introduction of a specific fungus
and enhanced pheromone trapping programs. Evidence was produced
to show that Ontario has changed its position regarding the use
of Btk for european gypsy moth control as it has been learned
the Btk program was not effective.
The Respondent confirmed there are alternative methods
available for control programs. The Respondent testified that
while they use some of these methods where practical, on their
own they are not effective as eradication programs. Evidence
was produced to show that neither the pheromone traps nor the
fungus were registered for use in Canada for eradication purposes.
Evidence was also produced to show that while the Ontario provincial
government has discontinued funding for Btk programs, the
programs are ongoing. It was also pointed out that Ontario has
a control program rather than an eradication program. Evidence
was produced to counter the argument that the Ontario program
was not effective.
The Panel accepts that while the alternative methods are used
in control programs and can and do form part of an integrated
pest management program, they are not effective in conducting
eradication programs.
Issue 6. Legality of Aerial Application to Urban Areas
Appellants contended that FORAY 48B was never intended
to be used in populated urban areas. The FORAY 48B label was
introduced as evidence to support this contention, as was additional
material surrounding requirements for registration.
The Respondent testified that they considered the label
authorized the aerial application of FORAY 48B in the manner approved
on the permit.
The FORAY 48B label provides as follows:
FORAY 48B may be used for aerial application on woodland
and urban sites by both fixed wing and helicopter aircraft.
Section 4 of the same label provides:
APPEAL NO. 92/14
PAGE 12
FORAY 48B may be used for aerial application in urban
areas for treatment of residential, industrial and municipal recreational
areas (including parks, parkland, vacant lots, shelterbelts and
rights of way under municipal jurisdiction).
It has been argued before the Panel that this section restricts
the spraying of FORAY 48B to recreational areas within the municipality
whether they be "residential recreational" areas, "industrial
recreational" areas or "municipal recreational"
areas. This interpretation not only creates an absurdity when
areas such as "industrial recreational" are considered.
A second argument centered around the Precaution statement on
the label which is as follows:
Avoid inhalation or contact with eyes and skin.
While it was argued at the Hearing that the precautionary statement
applied only to users of the product, evidence was presented to
show that Health and Welfare Canada stated that bystanders should
also avoid exposure.
In the opinion of the Panel the precaution statement does not
restrict the aerial spraying to non-populated areas. The precautions
are simply advice with respect to the application of the product.
The precaution and the sections on how to apply the product must
be read in the context of the label as a whole. When this is
done, it is clear that aerial application is mentioned many times
on the label. This precaution then should not be viewed as restricting
the clear intent to authorize application by aerial means.
Issue 8. Aerial versus Ground Based Applications
Appellants contended that application of FORAY 48B
by air would result in disruption and anxiety to many individuals.
While most Appellants were opposed to the use of FORAY 48B, some
felt that if the project must proceed the aerial application method
should be deleted from the permit.
The Respondent testified that ground application often
results in greater disruption than does aerial application due
to road closures and the longer period of time required to complete
the program. The Respondent testified that ground spray programs
are not always possible as they require ground access and are
adversely affected by tall and dense vegetation. Evidence presented
showed that aerial programs are more efficient in terms of resource
expenditure and length of time required to conduct the application.
APPEAL NO. 92/14
PAGE 13
Evidence showed drift could be expected to accompany either
aerial or ground programs.
The Panel finds that on the basis of the evidence presented, there
is no technical reason to delete the approval for aerial application
from the pesticide use permit.
Issue 9. Advertising and the Regulations
Evidence was produced to show that the map pertaining
to the Burnaby spray area which accompanied the newspaper advertisement
was unintelligible and contained incorrect street names. Appellants
contended that as Section 16(4)(e) Pesticide Control Act
Regulation was not complied with the permit should be rescinded.
The Respondent testified they received their permit after
completing the application process and they would have expected
that if they had not complied with the Regulation that the Pesticide
Management Branch would not have granted the permit.
The Deputy Administrator of the Pesticide Control Act
testified he considered substantial compliance had been achieved
by Agriculture Canada in the permit process. He considered that
although the terms of Section 16(4)(e) may not have been strictly
met, the media attention directed to the matter resulted in many
additional people being informed as to the possibility of a pesticide
program in this area. He also considered that if he cancelled
the permit, there would not be sufficient time to repeat the process
and leave time for an appeal against the permit issuance. The
Deputy Administrator stated that the public must have realized
there was a pesticide use permit which pertained to Burnaby as
that portion of the permit was specifically appealed.
In the matter at hand the advertisement for the permit application
contained errors: the map for the Burnaby portion contained inaccuracies
in the internal street names; and, the area for the Richmond treatment
was listed as 12.3 Km2 rather than 53 Km2.
The Panel agrees that the errors contained in the advertisements
may constitute a technical defect. The Panel, however, must consider
if this defect constitutes a denial of natural justice. In particular,
the Panel must decide if this defect amounts to a denial of the
requirement of notice as specified in the Pesticide Control
Act Regulation.
APPEAL NO. 92/14
PAGE 14
Mr. Justice Davies in Nisga's Tribal Council v. Environmental
Appeal Board (1988), 32 Admin L.R. 319 (B.C.S.C.) considered
the question of what constitutes effective notice in the context
of the Pesticide Control Act Regulation. Although the
Regulation has changed since the Nisga decision and Davies,
J. was not faced with the same specific question as this Panel,
the decision is helpful in determining what notice requirements
are needed to meet the principles of natural justice.
In Nisga an advertisement announcing that a pesticide use
permit for the use of a pesticide in an area inhabited by the
Nisga Indians was placed in the Smithers newspaper. The Regulation
in place required that the permit be published in one or more
newspapers with "local distribution". There were no
newspapers distributed to the Nass Valley where the Nisga reside.
The publication was not placed in the Terrace newspaper. Terrace
is located much closer to the Nass Valley than Smithers. The
Nisga knew of the issuing of the permit and launched a timely
appeal. The court found that the publication should have been
placed in the Terrace newspaper. Davies, J. found that the Nisga
were not given "effective notice". In the course of
his reasons Davies, J. states at page 326:
In his testimony before the board, Dr. Kobylnyk conceded
that he left the selection of the newspaper in which the notice
was to be published to the discretion of Westar and assumed they
would choose a newspaper that had "local distribution".
He further conceded that he was not aware that there were no
newspapers distributed within the Nass Valley. I believe this
indicates an indifference as to whether effective notice was given
to the residents to the Nass Valley of the proposed spraying.
In my judgement this is a defect that goes beyond the technical
defect. It is a breach of natural justice. The intent of the
section is that effective notice be given.
Therefore, Davies, J. considered that a technical defect in itself
was not sufficient to constitute a denial of natural justice.
The intent of the section must be recognized.
It is the opinion of the Panel that in these circumstances effective
notice was given. Section 16(4)(e) requires that the advertisement
contain "the location and area of the treatment site".
Further, section 16(4)(h) requires that the advertisement inform
readers where to go to view copies of the permit and maps of the
treatment area. The fact that section 16(4)(h) provides that
the public must be informed of where to obtain specific information
sheds some light on what must be meant by section 16(4)(e). The
words "location and area" as used in section 16(4)(e)
must related to the general location and area of the treatment
site. The advertisement must provide enough information for the
public to determine if they want to obtain further specific information.
APPEAL NO. 92/14
PAGE 15
The advertisement in question did notify the public as to the
general location and area of the treatment site as maps with headings
and boundary information were provided. It is clear to the Panel
that reasonably informed residents of Burnaby and Richmond could,
from the maps provided in the advertisement, determine the general
location and area of the treatment site. Further, reasonably
informed residents would be able to tell from the advertisement
whether their land was generally within the treatment site. Further,
the public was informed as to where they could obtain additional
information.
Issue 10. Number of Applications
The permit as presently structured allows for up to
4 aerial and up to 4 ground applications per annum. Appellants
alleged that this contravenes the label which authorizes one or
two applications. The Deputy Administrator testified that he
was under the impression that there were no areas which would
receive both aerial and ground-based treatments.
The Respondent testified that the label did not preclude
more than two applications and that their program as structured
did not contravene the label. In addition, testimony stated there
had been occasions in past spray
programs when a single area had received both ground and
aerial treatments. There were no occasions when an area received
8 treatments.
The FORAY 48B label states:
Treat when most larvae are 2nd and 3rd instar and when
leaf expansion is at least 40-50 percent; single applications
should be at a minimum dosage of 40 BIU/ha (3.2 L/ha); unless
egg hatch is extended, single high dosage applications are recommended
over lower dosage rates in 2 applications.
It is the opinion of the Panel that this section of the label
does not prohibit repeat applications. The fact that this section
refers to timing of applications from the perspective of plant
and caterpillar development means this section refers to efficacy
rather than safety concerns. This section provides information
on how the product can be used to gain greatest effectiveness.
The evidence provided at the Hearing showed the gypsy moth caterpillars
can be expected to hatch over an extended period. The fact that
the product is most effective against young caterpillars means
that the product will also have to be applied over an extended
period. In the opinion of the Panel, there is nothing on the
label to preclude this. The Panel also accepts there may be occasions
when, due to canopy or other restrictions, an area may require
treatment both by air and ground.
APPEAL NO. 92/14
PAGE 16
DECISION
In making this Decision, the Panel of the Environmental Appeal
Board has carefully considered all evidence and testimony provided
during the hearing whether or not specifically reiterated here.
FORAY 48B is a full formulation pesticide which is federally registered
for use in Canada. As stated earlier, the regulatory arm of Agriculture
Canada has determined the product will not pose health or environmental
hazards if used within certain conditions. The Court of Appeal
(Earthcare) has ruled it is not within the mandate of the
Environmental Appeal Board to challenge pesticide registration.
What the Board must determine is whether the exercise of the permit
under appeal will result in unreasonable adverse environmental
impact. In so doing, the Board must weigh any
adverse effects associated with the use of the pesticide against
the intended benefit. Only by making a comparison of the risk
and benefit can the Board determine if an anticipated risk is
unreasonable.
While there was a significant amount of evidence presented by
the Appellants, the Panel finds, on review, that the majority
of it did not address the use of FORAY 48B as authorized by this
permit.
There was also a significant amount of opinion tendered which
supported the view that the use of aerial application methods
would result in unreasonable anxiety and disruption. Much of
this arose from last year's experience when DC-6 aircraft were
used to apply the product. The Panel accepts that the sudden
appearance of such an aircraft over one's home and the accompanying
noise, vibration, etc. would no doubt be cause for alarm in a
number of people.
The Panel must, however, consider the evidence presented during
the Hearing. The evidence clearly shows there is disruption accompanying
a ground application. In addition, the ground program takes significantly
longer than does the aerial application and as a result is not
as closely controlled.
The length of time required for a total ground application program
causes the Panel some concern. The evidence shows there is a
limited window of effectiveness for FORAY 48B applications and,
therefore, the timing of applications is very important. The
estimated time required for an aerial application of the permit
area was roughly 1/2 hour whereas to treat the same area by ground
would take a number of days. When time is of the essence, it
would seem prudent to use the most efficient method of application.
APPEAL NO. 92/14
PAGE 17
The length of time required for the applications was also of concern
to the Panel when the evidence concerning human susceptibility
and allergies was considered. The permit presently requires the
aerial applications to be completed before 0730 hrs. There is
no such requirement for the ground spray, nor
would such a restriction be practicable. The fact that the
ground spray is going to take a number of days to complete and
will be conducted throughout the day means there is a much greater
chance of people coming into contact with the spray. It would
appear preferable to limit the time the activity is actually occurring
so those who consider they could be affected could take appropriate
action. This would appear difficult to do if the program was
being conducted by ground spray. The Panel
accepts there may be those areas where ground spray is the most
appropriate method of treatment just as there may be those more
appropriately treated by air.
The size of the treatment areas as specified on the permits appears
to be excessive. The Panel accepts that at the time the Respondent
applied for the permit, the larger areas were necessary to ensure
that the appropriate area was included for treatment. The analysis
of the delimitation program has allowed a more exact determination
of the area requiring treatment.
As a result of reviewing the evidence presented, the Panel has
concluded that the use of FORAY 48B will result in the death of
some, not all, non-target lepidopterans. The Panel has also concluded
that given the nature of the european gypsy moth this is not unreasonable.
Therefore, it is the unanimous decision of the Panel that the
permit be amended in the following manner:
replace the locations of the intended applications as
presently contained on the permit with the smaller areas as presented
at the hearing (Vancouver 30 ha; Richmond 430 ha; Burnaby 40 ha)
(Treatment Areas).
Section E is deleted and replaced with 500 ha.
Section F is deleted and replaced with 2000 L/application.
The Respondent is ordered to, within 5 working days, provide the
Deputy Administrator with a map detailing the "Treatment
Areas", those being the revised areas which resulted from
the delimitation trapping program and which were presented at
the Hearing into these appeals.
Subject to the foregoing amendments, the appeals are denied.
APPEAL NO. 92/14
PAGE 18
COMMENTS
There are several areas on which the Panel offers comment
which are outside of the mandate of the Environmental Appeal Board.
Full Formulations of Pesticides
The Panel is aware that the public has long been concerned
with the lack of disclosure of the full formulation of pesticides.
It was, therefore, completely understandable, given that this
application will take place over a populated urban area that people
would be even more concerned than usual with this particular aspect
of pesticides.
The Panel is aware that in order to be registered in Canada certain
tests must be carried out on the full formulation and that the
manufacturers of pesticides need not disclose the ingredients
of these pesticides to the public.
The Panel notes there is discussion taking place between the manufacturer,
Novo Nordisk, and provincial and national health officials whereby
the formula of FORAY 48B would be released to a qualified physician,
under a confidential agreement of non-disclosure so other physicians
who have reason to believe their
patients have been affected can gain the necessary information
for treatment (Exhibit A7-5). The Panel is of the opinion
that such an agreement would provide some degree of comfort to
both patients and concerned physicians and hopes it is in place
prior to the 1993/94 program.
The Panel is also of the opinion, however, that Agriculture
Canada reconsider regulations pertaining to the publishing of
full formulations of pesticides. The Panel recommends that the
full formulation of those pesticides registered for aerial application
in urban areas should be publicly disclosed.
Information to Physicians
The Panel encourages Agriculture Canada to prepare and distribute
information on FORAY 48B, including the symptoms experienced by
the ground spray workers, to physicians and clinics in the greater
Vancouver area. The Panel appreciates the 1992 survey used
the services of sentinel physicians and suggests the scope be
widened to all physicians in the spray and drift area.
Advertising
One of the areas of focus in these appeals was the advertising.
The Panel encourages the Pesticide Management Branch to suggest
that future pesticide permit applications be not only advertised
APPEAL NO. 92/14
PAGE 19
in the Province and the Sun, but also in the local papers which
are distributed free of charge. Consideration should also be
given to placing the information on local community cable television.
In addition, the Pesticide Management Branch may wish to consider
guidelines concerning the use of maps in advertisements, specifically
requiring any maps published to include north arrows, scale, etc.
On-Going Public Information Programs
This permit is valid for two years. If it becomes apparent
that it is necessary to exercise the second year of the permit,
the Panel recommends that Agriculture Canada implement on-going
public information sessions including such things as egg mass
and moth identification. Perhaps a bounty system could be considered
for in-tact, in-situ egg masses.
Agriculture Canada may also wish to revisit the format used
for their 1993 public information sessions.
Label Issues
During the Hearing, it was contended by the Appellants that
Agriculture Canada had changed the precaution section on the label
prior to last year's spray program so the program could proceed.
Pesticide labels are in effect part of the registration process
and are as such outside of the Board's mandate. The Panel notes,
however, that while the timing of the label change may seem a
fortuitous coincidence, there was no evidence presented to show
that Agriculture Canada was involved in requesting the label change.
Another label issue concerned the lack of clarity on application
of FORAY 48B to certain types of 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.
APPEAL NO. 92/14
PAGE 20
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.
FORAY 48B and Honey Bees
During the appeals, a suggestion was made by one the Appellants,
the Richmond Beekeepers Association, that a study hive be specifically
sited in one of the treatment areas and monitored during and after
the spray program.
Although there was no evidence presented to show that FORAY
48B would adversely affect honey bees, the Panel recommends that
Agriculture Canada consider pursuing this suggestion.
Effect of FORAY 48B on Ground Spray Workers
The evidence showed that some ground spray workers did experience
transient irritative effects during the spray program. Because
of the sample size, it was not possible to discern if these effects
could have been lessened if the workers had worn protective equipment
such as masks.
APPEAL NO. 92/14
PAGE 21
The Panel recommends that ground spray workers involved
in the exercise of this permit be made aware of the results of
last year's study.
Linda Michaluk, R.P.Bio.
Chairman
Environmental Appeal Board
April 8, 1993
Appendix A
The following is a complete list of the 15 Appellants
in the matter of appeal against the issuance of PUP 214-026-93/94.
The numbers assigned to the Appellants represent the order in
which the Board received the appeals. Where appeals were received
on the same day, the appellant order was determined alphabetically.
Appellant 1 Vancouver City Council (Domenic Losito)
Appellant 2 Richmond Beekeepers Association (Rosemarie Bundock)
Appellant 3 Burnaby City Council (Ken Johnston)
Appellant 4 Society Targeting Overuse of Pesticides (Rod Marining)
Appellant 5 Svend Robinson
Appellant 6 Society Promoting Environmental Conservation
(Paul Hundal)
Appellant 7 Fred Court
appellant 8 Thais Halford
Appellant 9 Health Action Network Society (Thelma
MacAdam)
Appellant 10 Margaret MacKenzie
Appellant 11 Dr. Saul Miller
Appellant 12 Mrs. Om Sairam
Appellant 13 Second Street Subcommittee (Beth Chobotuck)
Appellant 14 Grant Alexander Smith
Appellant 15 Nonna Weaver
APPENDIX B
The 15 appeals filed by groups and individuals from
the Lower Mainland area follow.
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