APPEAL NO. 93/03 - PESTICIDE


In the matter of appeal under s15 of the Pesticide Control Act, RS Chap. 322, 1979, on Pesticide Use Permit #102-567-93/95, issued by the Deputy Administrator, Pesticide Control Act, to British Columbia Ministry of Transportation and Highways.


BETWEEN Thompson Watershed Coalition APPELLANT

AND D/Administrator, Pesticide Control Act RESPONDENT

AND Ministry of Transportation & Highways THIRD PARTY

BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD

Mr. H.D.C. Hunter Chairman
Mr. H. Higgins Member

DATE OF HEARING September 9 & 10, 1993 and
October 18 & 19, 1993

PLACE OF HEARING Dome Motor Inn, Kamloops, British Columbia

APPEARING For Appellant
 Spokesperson Ms. B. Boulton
Witnesses Mr. D. Kehler
Mr. B. Vosdet, P.Eng.

For Respondent
 Spokesperson Mr. S. Craig
Witnesses Mr. W.E. Hamer, Ministry of Transportation & Highways
Mr. D. Labrie, Thompson-Nicola Regional District

For Third Party
 Spokesperson Mr. R. Fyfe, Counsel
Witnesses None
APPEAL NO. 93/03 PAGE 2


EXHIBITS

A-1 Curriculum Vitae of Mr. Vosdet

A-2 Book of documents referred to by Appellant

A-3 Reconnaissance Study of Roadside - Tree Injury and Decline at 17 Sites in Interior B.C. - March 1992

R-1 Copy of permit as issued with conditions

R-2 Sample of work records of High Country Forestry & Fire Services

R-3 Complete label for ROUNDUP

R-4 Label for TORDON 22K

R-5 Fact sheet for TORDON 22K, 1992

R-6 Fact sheet for ROUNDUP, 1992

R-7 Pesticide Control Act

R-8 Pesticide Control Act Regulations

R-9 October 16, 1991, letter appointing Mr. C. Craig, Deputy Administrator, Pesticide Control Act

R-10 Application form for pesticide use permit (blank)

R-11 January 20, 1993, application of Ministry of Transportation & Highways

R-12 Acknowledgement of application and order to advertise

R-13 Guide to applicants

R-14 Advertisement in Kamloops This Week dated February 5, 1993

R-15 Advertisement in Kamloops Daily News dated February 8, 1993

R-16 March 2, 1993, letter from Mr. Hamer to Regional Manager, Pesticide Management Branch

R-17 January 5, 1993, letter to Ministry of Transportation & Highways denying permit

R-18 Copies of comments from the Pesticide Review Committee
APPEAL NO. 93/03 PAGE 3



R-19 Letter dated April 1, 1993, to Thompson Watershed Coalition with copy of permit

R-20 Copy of Service Licence issued to High Country Forestry and Fire Services

R-21 List of Certified Applicators

R-22 Copy of Weed Control Act

R-23 Copy of Weed Control Act Regulations

R-24 December 10, 1992, letter from Thompson Watershed Coalition to the Environmental Appeal Board

R-25 December 11, 1992, letter from the Environmental Appeal Board to the Thompson Watershed Coalition

R-26 July 20, 1993, letter from Thompson-Nicola Regional District to Mr. S. Craig

R-27 List of priority treatment areas (undated)

R-28 Ministry of Transportation & Highways priority list, May 1993

R-29 Ministry of Transportation & Highways priority list, July 1993

R-30 Ministry of Transportation & Highways noxious weed control checklist, May 1993

R-31 Summary report, "Forest Sciences", February 1993

R-32 Knapweed Control Function

R-33 Invitation to tender by Thompson-Nicola Regional District

R-34 List of interview questions

R-35 Company reference chart

R-36 List of company employees

R-37 Example of Applicator's records

R-38 Environmental Appeal Board Annual Report 1991/92

R-39 Photocopy of an inspection report
APPEAL NO. 93/03 PAGE 4


BACKGROUND

The Panel of the Environmental Appeal Board convened to hear this appeal consisted of Mr. H.D.C. Hunter, Mr. H. Higgins and Dr. J. Smith. Although Dr. Smith was present for the first portion of the hearing on September 9 and 10, 1993, illness prevented him from attending on October 18 and 19, 1993. The Environmental Appeal Board Procedure Regulation, Section 5(2) provides that the panel Chairman plus one other member constitutes the quorum for a panel of three; the Chairman and Mr. Higgins, therefore, continued the hearing as a panel of three with one member absent. Dr. Smith took no part in making the Panel's decision.

At the opening of the hearing on October 19, Mr. Craig requested the Panel suspend the hearing to enable him to investigate apparent breaches of the permit which had been disclosed in evidence on October 18. The Panel declined this request partly on the ground that the appeal was against the permit as issued and a stay at this time of year was unnecessary. Mr. Craig then stated that he had suspended the permit to allow him to make investigations and he agreed to the continuation of the hearing.


APPEAL

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.

This is an appeal by the Thompson Watershed Coalition against the issuance of Pesticide Use Permit 102-567-93/95 (permit) to the Ministry of Transportation & Highways (MOTH). This permit authorizes the spray application of TORDON 22K and ROUNDUP by power hose nozzle or backpack sprayer on highway verges in a portion of the Thompson-Nicola Regional District (TNRD).

The grounds of appeal were listed in fourteen paragraphs and fall into two categories: errors in procedure by the Pesticide Management Branch in issuing the permit; and the dangers to the environment in using the permitted pesticides.

The evidence did not reveal any error by the Branch in issuing the permit. There were misunderstandings of the procedure by the Appellant and Mr. Kehler, the witness. MOTH applied for a permit in November, 1992, which was advertised. The Appellant wrote a letter objecting to it. This letter was addressed to the Environmental Appeal Board and not to the Branch, although a copy was sent to both the applicant and the Branch. This application was denied by the Branch because of errors in advertising and MOTH immediately reapplied in exactly the same terms. This was re-advertised, apparently correctly, but the Appellant did not write further, assuming that its earlier letter would suffice and be dealt with.
APPEAL NO. 93/03 PAGE 5


The Appellant was not contacted by either MOTH or the Branch until the permit was issued and a copy was sent to the Appellant.
The Regulation and the required advertisement invite the public to "contribute information about the site for the evaluation of this application" within a fixed time. The Appellant's letter to the Environmental Appeal Board was only notice of the intention to appeal and neither MOTH nor the Branch considered it to be "information about the site", nor was it sent to the correct parties. Neither the Branch nor the Applicant were in breach of the Regulation in ignoring this letter.

The Panel finds no error in the lack of detail of the applicators or in the signature of the applicant. These are matters normally and properly covered by subsequent communications, which are available to the public.

The plans submitted are all that can be expected in a permit to spray verges in a large area and the public is protected by the requirement to flag areas and map water intakes. Mr. Kehler's concern over the lack of notice is partly of his own making by his acknowledgement that he did not read newspapers. The Pesticide Control Act, in general, does not cover spray programs on private property and nor does the permit under appeal; therefore, any spraying that may have occurred on private property on Deadman's Road is outside the jurisdiction of this Panel.

EVIDENCE

The permit forbids the use of TORDON 22K (Picloram) in areas of coarse, gravelly soils or permeable soils underlain by shallow aquifers.

Mr. Vosdet gave evidence on behalf of the Appellant. He is a geotechnical engineer who has been based in the Kamloops area for several years with wide experience in soil mechanics. He has been involved in cleaning up contaminated sites, although mostly for old industrial or commercial operations.

His evidence was not challenged that in the permit area the soils are very varied, with much sandy gravel which is highly permeable. There is also considerable silty material that is conducive of quick surface runoff. His main argument was that it is impossible for anyone, however experienced, to assess the soil conditions even a few inches below the surface by merely walking over it.

The water table in the area is not uniform and again it is impossible from a surface inspection to establish the depth of
APPEAL NO. 93/03 PAGE 6


the water table or the direction of flow of the water. The permit area contains areas where there are underground pipes and fissures allowing for the easy flow of water.

Mr. Labrie giving evidence for the Respondent stated that the applicators had all received training from the manufacturer of TORDON 22K on how to assess the permeability of the soil.

There was no evidence on the quality of this training or on the frequency or adequacy of the suggested tests.

Ms. Boulton gave evidence and produced a considerable volume of documents dealing with ROUNDUP and to a lesser extent with TORDON 22K. Mr. Fyfe for the Third Party objected to the admission of this documentary evidence. The Panel ruled that it would accept the evidence but would decide later on the weight to be afforded it. Unfortunately most of the documents were extracts only of reports. Even full reports where there is no means of assessing the qualifications of the writer are of doubtful value; mere extraction of particular sentences in such reports is of even less value. The Panel attaches little weight to most of this documentary evidence.

The Panel has been told by the courts that it does not have the jurisdiction to question the propriety of federal registration. If the product is federally registered, the Panel must accept that its use in accordance with the terms of the label is generally safe. The Panel, therefore, must consider the probable effects of its use in accordance with the terms of the label with specific reference to the proposed use at specific sites.

It was acknowledged that TORDON 22K has been used on roadsides in this area for many years. Ms. Boulton referred to pine trees along the roadside in the Barnhardtvale area which have died, while similar trees away from the road have flourished. The witnesses for the Respondent claimed insufficient knowledge to comment on any connection. While the connection between the use of TORDON 22K and the death of these trees is not proved, the inference that there is such a connection remains. The label for TORDON 22K specifically warns of the danger to the roots of trees from its use.

Ms. Boulton claimed that notice to the public was inadequate. The flagging is for the use of the sprayers. There should be prior notice to all households in the area of the spraying in order to allow parents to warn their children. This permit deals with the highways where people may be walking or children may get off a school bus and walk through an area which has been sprayed. TORDON 22K particularly is persistent and is harmful, and children will not know the significance of flags unless they have received prior warning.
APPEAL NO. 93/03 PAGE 7


Mr. Kehler was concerned that the verges are traversed by cattle and they may be harmed if they graze on the sprayed areas, although he was not aware of any specific case where this had happened.

The TNRD does serve notice on property owners in the area of treatment so they have the opportunity to request that no chemicals reach their property.

Restriction E in the permit requires a 10 metre pesticide free zone (PFZ) along all water bodies and for the use of picloram (TORDON 22K) that the PFZ be maintained along all stream courses including dry streambeds. The question arose whether a dry roadside ditch was a dry streambed. There was no difficulty if there was water in the ditch; it was clearly a water body. Mr. Labrie stated that he had discussed this with a Mr. McBeth, assistant to Mr. Craig, and they had agreed that if the water would pond and evaporate on the spot without flowing it was not a streambed. There was no evidence of the criteria to be used to decide whether the water would pond or flow. Furthermore, Mr. Craig was unable to say whether TORDON 22K would evaporate with the water or remain in the soil. As TORDON 22K is notoriously persistent and passes through soil, the Panel must assume that it will not evaporate with the water.

Permits for the use of ROUNDUP often refer to "ephemeral stream" and permit overspraying when no water is present. It may be the intention of this restriction to equate "dry streambed" with "ephemeral stream".

The Panel takes notice that the purpose of a roadside ditch is to lead water away from the road; if water ponds in the ditch and does not flow, there is some fault in the ditch. In addition it is not easy to decide what portion of a dry ditch will cause ponding of water without flow and any pond can overflow at times.

The label for TORDON 22K (Exhibit R-4) on page 3 states, "Do not treat the banks of irrigation or drainage ditches and avoid spray drift falling into them to avoid contaminating water used for irrigation."

The Panel cannot accept an interpretation which does not consider all roadside ditches, whether dry or not, as drainage ditches. The registration for TORDON 22K requires that it not be sprayed on the banks of drainage ditches. Therefore, there must be a PFZ and accompanying buffer zone along all roadside ditches whether dry or not.

The permit has a provision that TORDON 22K is not to be sprayed within the drip line of trees. The label says that this is not
APPEAL NO. 93/03 PAGE 8


adequate as the roots extend beyond this zone and the trees can be harmed. Mr. Labrie stated that he had discussed this with the manufacturer, but what exactly was said was unclear. Apparently the applicators are told to treat to the dripline as a PFZ and to leave an adequate buffer zone. There was no direct evidence that any trees in this permit area have been damaged, but the Panel takes note of the claim, mentioned earlier, of damage to trees in the Barnhardtvale area.

The Respondent produced copies of some of the bi-weekly reports submitted by the applicators. The Appellant was muddled by the relationship between the report which referred to chemical used and the permit which refers to the amount of active ingredient per hectare. In spite of the use of calculators by the Respondent and his witnesses this difficulty was not resolved at the hearing.

Although the calculations at the hearing were inconclusive, the Panel can make them from the evidence before it. The data sheet for TORDON 22K (Exhibit R-4) states that there are 240 grams of active ingredient per litre of product. The safety data sheet for ROUNDUP (Exhibit R-6) states that there are 356 grams of active ingredient per litre of product.

The application rate for ROUNDUP in the permit is .48 kg. of active ingredient per hectare; this means that 1.35 litres of product should be used per hectare.

The information in the bi-weekly reports (Exhibit R-37) for June 16-30 shows that 21.8125 litres of ROUNDUP were used on 9.69 hectares. The information in the report for July 1-15 shows that 5.25 litres of ROUNDUP were used on 2.33 hectares. This shows an application rate of some 2.25 litres per hectare.

The same calculations for TORDON 22K are equally revealing but in the reverse direction. At 240 grams per litre of product and an application rate of 1.08 kg. of active ingredient per litre of product, the use of 4.5 litres of product per hectare is required. The information in the report for June 15-30 shows 64.925 litres of product used on 28.85 hectares; the information for July 1-15 shows 5.25 litres of product used on 3.44 hectares. These show an application rate of just over 2.25 litres per hectare. It must also be borne in mind that the Ministry of Agriculture representative on the Pesticide Review Committee considered 1.08 kg. of active ingredient per hectare as too low to be effective. The calculations also show that the average use of the chemicals is 2.25 litres per hectare for each chemical, whereas the rates should vary from 1.35 litres to 4.5 litres depending on the chemical used.

APPEAL NO. 93/03 PAGE 9


There was evidence of inspections of the applicator crews which satisfied the persons inspecting; apparently the crews had the correct documentation and equipment and flags, but there was no evidence that any person inspected the mixing or the concentration of the chemicals.

The documents raise a serious question as to whether the reports are incorrect or the applicators did not use the correct mixtures.

These same reports show that in the four weeks from June 16 to July 15 alone 12.02 hectares had been treated with ROUNDUP. The permit authorised 10 hectares to be treated with ROUNDUP over the three years of the permit.

This over-use of ROUNDUP also brings into question the advertisement announcing the application for the permit. These advertisements (Exhibits R-14; R-15) state that "ROUNDUP is for the treatment of noxious weeds in gravel pits only". Whether this was the original intention or not, it clearly has not been followed. Mr. Labrie stated that ROUNDUP was used where there was no grass and TORDON 22K was used where there was grass. This was because ROUNDUP kills grass while TORDON 22K does not. The public were misled by the advertisement.

The permit applied for and granted was for 50 hectares for TORDON 22K and 10 hectares for ROUNDUP over a three year period. In a two month period 51.49 hectares were treated and it was admitted that the Program continued for a least another month. It is clear that MOTH, in applying for the permit, had not given adequate thought to the areas likely to be treated. It appears to be the thought that the permit allows the use of the chemicals at a specific strength to be used as required.

This flies in the face of the clear requirements of the Pesticide Control Act that the amount of pesticides put into the environment be closely controlled, and of the policy to reduce as much as possible the use of any pesticide.

The Panel was told that MOTH and TNRD decide in the spring, when the snow has melted, what areas are priority areas for treatment. Documents filed with the Panel show that after this initial list was made up two other lists were prepared. When these lists were prepared, the type of treatment was agreed to and there was further evidence that TNRD agreed with the applicators exactly what treatment was to be used in each area.

It is obvious that none of these people ever considered the limit in the permit of the total area to be treated by TORDON 22K and ROUNDUP.

The Panel appreciates that it is extremely difficult for the representative of MOTH to make an accurate estimate of the areas that will require treatment when the permit is applied for even
APPEAL NO. 93/03 PAGE 10


just one year. It is even harder for a three year permit. There must, however, be a serious attempt at making such an estimate.

A forestry permit for a well defined area can safely be issued for use over a three year period, whereas in this case it is virtually impossible to define accurately in advance the precise area to be treated in any one year. Under these circumstances, a permit should not be issued for more than one year at a time.

There was evidence that alternatives to the use of pesticides to control noxious weeds, particularly knapweed, are being actively tried. There seems to be a dearth of any significant data on the results. Neither MOTH nor TNRD had any information on the costs and effectiveness of various methods although it was said that someone claimed handpulling was more expensive than chemicals. It is, therefore, hard for the Panel to assess the reasonableness of the use of chemicals for control of noxious weeds on highways.

DECISION

The evidence from the bi-weekly reports shows that either the reports are totally incorrect or else the applicators are not mixing the chemicals according to the requirements of the permit and the labels. In either case, the permit holder, who is responsible for the proper performance under the permit, cannot be allowed to continue. Already more than the permitted amount of ROUNDUP has been used, and almost all the permitted area has been treated with TORDON 22K. On this ground the Panel upholds the appeal of the Thompson Watershed Coalition.

The evidence is overwhelming that the areas applied for and granted in the permit are totally unrealistic and cannot be the product of serious thought. On this ground also the Panel upholds the appeal of the Thompson Watershed Coalition.

The evidence reveals that the applicators have not complied with the label requirements of TORDON 22K in that they have apparently been authorised to spray it on some of the banks of roadside ditches. On this ground also the Panel upholds the appeal of the Thompson Watershed Coalition.

Therefore, it is the unanimous decision of the Panel of the Environmental Appeal Board that Pesticide Use Permit
102-567-93/95 be cancelled.

The misinformation in the advertisement of the application may be a serious error. In view of the decision to allow the appeal on other grounds, the Panel, however, makes no ruling on this matter.

The Panel accepts the evidence of Mr. Vosdet that it is virtually impossible for a person to know the nature of the subsoils without making proper soil tests and that the area of this permit
APPEAL NO. 93/03 PAGE 11


has large areas of coarse gravels and other problems. The Panel would, therefore, have deleted TORDON from the permit had the permit been allowed to stand.

RECOMMENDATIONS

The Panel is concerned that the apparent breaches in the permit, which are clear from the applicator's bi-weekly reports, were not noticed by the Branch until they were brought to the Panel's attention by the Appellant. If the applicators are required to go to the trouble of submitting bi-weekly reports, they should receive proper and prompt attention and not merely be filed. The problem with this permit was obvious by mid-July and if these reports had been attended to the matter could have been properly addressed then.

The Panel recommends to the Deputy Administrator that if MOTH applies for a new permit or (any other body with the same problems of estimating areas to be treated) only a one year permit be granted.

It also recommends that TORDON 22K be forbidden on any highway rights-of-way and perhaps other places in the Kamloops area for the reasons on which the Panel would have deleted it from this permit if it had not cancelled the permit entirely.

The Panel also recommends that a permit to apply pesticides to a highway rights-of-way include a requirement that the permittee give notice of its intention to apply pesticides to all persons who are likely to use that portion of right-of-way, with particular emphasis on the use of school bus stops or other areas where children are likely to pass on foot. Notice to schools in the area should be considered. Notice should also be given to ranchers whose cattle may be in, or passing through, the area to be sprayed. Flags should remain in place for fourteen days after spraying has taken place.

A study should be undertaken by MOTH of the relative costs and effectiveness of various weed control methods such as mowing, handpulling and pesticide use. When the tests on biological controls are further advanced, the costs and effectiveness of this method should be assessed. Both the Branch and the Panel on appeal, are required to consider whether the use of a pesticide will cause "an unreasonable" adverse effect. Cost and effectiveness are two of the main criteria in such consideration.





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

November 10, 1993

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