In the matter of an appeal under section 15 of the Pesticide Control Act, R.S.B.C. 1996, c. 360.
| BETWEEN: | Resident Advisory Board et. al. | APPELLANT | |
| AND: | Deputy Administrator Pesticide Control Act | RESPONDENT | |
| AND: | Canadian Food Inspection Agency | PERMIT HOLDER | |
| BEFORE: | A Panel of Environmental Appeal Board | ||
| Toby Vigod | Panel Chair | ||
| Cindy Derkaz | Member | ||
| Gary Robinson* | Member |
HEARING DATE: March 31 - April 3, 1998
PLACE OF HEARING: Victoria, B.C.
| APPEARING: | For the Appellants1: | |
| Resident Advisory Board: | Cecilia Gauthier | |
| Sierra Club – Victoria Group: | Marisa Herrera | |
| Ecological Health Alliance B.C. Branch of the Allergy and Environmental Health Association: | Andrea Finch, Counsel Katy Young | |
| Stop Overhead Spraying: | S. Jean Wallace
| |
| For the Respondent: | R.H. Heath | |
| For the Permit Holder: | Dr. Bryan Frazer |
1Laura Graves, Patti Parsons, Thais Halford and Sam Carson, Alex Carson and E. Deveau filed written statements but did not appear at the hearing. Ms. Weaver presented a submission on behalf of Thais Halford and Ms. Young was authorized to speak on behalf of Laura Graves.
APPEAL
This is an appeal against Pesticide Use Permit No. 214-018-98 ("the Permit"), issued on February 10, 1998 by Mr. Dick Heath, Deputy Administrator, Pesticide Control Act, Ministry of Environment, Lands and Parks ("MELP"), to the Canadian Food Inspection Agency ("CFIA"). The Permit authorizes the use of Foray 48B, a pesticide whose active ingredient is Bacillus thuringiensis var. Kurstaki ("Btk"), in a spray program designed to eradicate introduced populations of the European gypsy moth (Lymantria dispar) in Langford, Colwood, Esquimalt, and Saanich.
The Appellants seek an order cancelling the Permit, or alternatively, an order varying the Permit so that it does not allow indiscriminate aerial or ground spraying of Foray 48B, but rather, incorporates alternative control methods replacing the pesticide application or supplementing a more limited application of the pesticide.
The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act and section 15 of the Pesticide Control Act.
BACKGROUND
Pheromone baited sticky traps have been used in British Columbia since 1978 to identify developing populations of gypsy moths. New introductions of gypsy moth populations have occurred sporadically over the years because egg masses have been carried to this province by vehicles arriving from infested areas in eastern North America and elsewhere. All the parties in this appeal agree that such introductions will continue to occur indefinitely. Mr. Jon Bell and Dr. Bryan Frazer, of CFIA, have stated that it is only a matter of time until the gypsy moth becomes established in British Columbia, and that the spray programs that have taken place are designed to eradicate local populations thereby delaying the eventual colonization of parts of British Columbia by this species.
Sticky traps baited with the female gypsy moth pheromone have been used for detection purposes for a number of years in Langford, Colwood, Saanich, Esquimalt, Victoria and the other municipalities in the region. Based on these detection surveys, three areas have been designated for the 1998 spray program as authorized by the Permit. These areas are: a 571.7 hectare rectangle (with a narrow extension running west from the rectangle along the north side of Highway 1) centred roughly on the intersection of Jacklin Road and Station Avenue in Langford ("the Langford site"); an 87.5 hectare square centred on Highrock Park in Esquimalt ("the Highrock site"); and a 74.1 hectare partial rectangle, centred along Craigflower Road north of Tillicum Road and extending to Gorge Road West on the far shore of the Gorge waterway ("the Craigflower site").
Maps submitted by the CFIA show that, in 1996, 1 or 2 egg masses were found near the centre of the Langford site, just off Jacklin Road, and 2 to 5 male gypsy moths were caught in each of two traps at different locations. Also in that year, one male moth was trapped in the Highrock site. In 1997, the number of moth captures and found egg masses increased. Up to 24 egg masses were found at or near the Jacklin Road location in the Langford site ("the Langford epicentre") and up to 215 male moths were trapped, mostly in the northeast quarter of the site. Also, up to 4 egg masses were found at two adjacent locations just off Craigflower Road ("the Craigflower epicentre") in the Craigflower site, and up to 71 male moths were trapped at various locations around the site. In the Highrock site, no egg masses were found and 24 male moths were captured. There were also captures of small numbers of male moths at several locations outside of the proposed spray sites.
On December 19, 1997, MELP received a Pesticide Use Permit Application from CFIA requesting permission to spray Foray 48B in order to eradicate these gypsy moth populations.
On February 10, 1998, the Respondent issued the Permit to spray Foray 48B, at a distribution of 4 litres per hectare, over approximately 732 hectares in Esquimalt, Colwood, Langford and Saanich, to eradicate the gypsy moth. The three spray sites identified in the maps accompanying the permit application were approved for ground treatment by mist blower and power hose, not to exceed 25% of the treatment area, and for aerial application by helicopter and/or fixed wing aircraft. A maximum of 4 treatments (aerial and/or ground) was allowed. The Permit is effective from April 1, 1998 to June 30, 1998. CIFA’s estimated total cost for the spray program is $193,000 of which it will pay one third and the rest is shared by the province and the municipalities.
In 1990, Foray 48B was registered for use in Canada by Novo Nordisk. It is now registered and distributed by Abbott Laboratories. The active ingredient in Foray 48B, Btk, is a bacterium that produces a crystalline toxin in the alkaline digestive tracts of lepidopteran larvae. When the formulation is sprayed on deciduous vegetation favoured by the gypsy moth larvae as food, Btk bacteria are ingested and kill the caterpillars. This relatively target-specific pesticide is preferred by CFIA and MELP over more indiscriminate chemical pesticides. The other ingredients of the Foray 48B formulation, which will be referred to here as "inerts", are privileged information belonging to the manufacturer and have not been disclosed to the general public, the parties to this appeal, local health authorities, or this Board. According to the material safety data sheet issued by Abbott Laboratories, Foray 48B consists of 2.1% Btk and 97.9% "inert" ingredients.
Health Canada has approved the formulation and registered Foray 48B for use in agriculture, forestry, and urban applications.
The Councils of three of the four municipalities to be sprayed passed resolutions opposing the aerial spraying of pesticides. The City of Colwood, on March 23, 1998, and the District of Saanich, on March 30, 1998, passed resolutions opposing aerial spraying of pesticides. Colwood also encouraged the investigation and use of alternate control measures and Saanich urged ground spraying instead of aerial spraying. On March 16, 1998, the District of Langford passed a resolution indicating that it considered a ground spraying program to be safer than aerial spraying and that it would be more in favour of this method being used in Langford. The Township of Esquimalt supported the proposed aerial spraying program.
The Panel received extensive evidence and submissions, both orally and in writing, addressing the following major concerns:
At the hearing, a stay of the Permit was granted until April 15, 1998, when the decision of the Panel would be made.
ISSUES AND RELEVANT LEGISATION
The basic issue to be decided is whether the proposed spray application of Foray 48B, as authorized by the Permit, causes an "unreasonable adverse effect". Pesticide Use Permits are issued by MELP pursuant to section 6(3) of the Pesticide Control Act, as amended, which reads as follows:
6 (3) The administrator
(a) may issue a permit or approve a pest management plan if satisfied that
(i) the applicant meets the prescribed requirements, and (ii) the pesticide application authorized by the permit or plan will not cause an unreasonable adverse effect, and
(b)may include requirements, restrictions and conditions as terms of the permit or pest management plan. [emphasis added]
Section 1 of the Act defines "adverse effect" as an effect that results in damage to humans or to the environment.
The correct approach for the Environmental Appeal Board on an appeal of a section 6 permit has been confirmed by the B.C. Court of Appeal in Canadian Earthcare Society v. Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 55 (B.C.C.A.). Taggart, J. A. found that:
Should the Board find an adverse effect, (i.e. some risk) it must weigh that adverse effect against the intended benefit. Only by making a comparison of the risk and benefit can the Board determine if the anticipated risk is reasonable or unreasonable....Evidence of alternate methods will also be relevant to the issue of reasonableness. If the same benefits could be achieved by an alternative risk free method then surely the use of the risk method would be considered unreasonable.
...hear evidence on toxicity to the extent that the evidence showed that the specific site in question prevented safe application of the pesticide [...] [and] evidence whether the proposed pesticide use was contrary to registration intent and restrictions or that the Permit Holder was unable to apply the pesticide safely.
Accordingly, the Panel has approached the basic issue of whether the pesticide application approved in the Permit will have an "unreasonable adverse effect" as three sub-issues:
DISCUSSION
1. Whether the spraying of Foray 48B, as authorized by the Permit, will cause an adverse effect to human health.
The Appellants submit that, although Foray 48B is authorized for use over urban areas, it is detrimental to the health and well being of human beings. In particular, they allege that aerial spraying of this product presents a risk of harm to children, the elderly, and people of all ages with allergies, asthma, other respiratory ailments, and weak immune systems.
Ms. Cecilia Gauthier, representing the Appellant, Resident Advisory Board, submitted undisputed evidence on site-specific health problems in the Esquimalt area. Many of these problems are respiratory ailments such as aggravation of asthma and pneumonia, which Ms. Gauthier contends are a consequence of particulate air contaminants originating from the Esquimalt Graving Dock. She also submits that many residents of the area are already suffering from allergic reactions from heavy metals, and that these illnesses and their symptoms would be aggravated by an aerial spray program over or near the area. She argues that, besides the issue of the active agent, Btk, there are "inert" ingredients in the formulation of Foray 48B that could adversely affect hypersensitive individuals.
In support of her argument, Ms. Gauthier submitted a copy of correspondence (2/4/92) from Ms. Janet Overholt of Novo Nordisk, the Danish company that manufactured Foray 48B, to Mr. Jon Bell of CFIA. The letter reads in part:
It is possible that someone that already has developed an allergy to one of the components of Foray 48B or has asthma of a type that could be initiated by irritants such as tobacco smoke or pollutants could be affected by exposure to small quantities of Foray 48B.
A number of Appellants produced reports or extracts from reports, which suggest that Foray 48B is, or can be, harmful to humans. Evidence presented also suggested that the "inert", undisclosed ingredients of the Foray 48B formulation can be as harmful, or more harmful, than the bacterium Btk.
Several other Appellants, including Ms. Katy Young of the Ecological Health Alliance B.C. Branch of the Allergy and Environmental Health Association ("EHA"), Ms. Jean Wallace, Mrs. W.G. Westmacott, Ms. Carol Sokoloff, and Mr. Michael Abel gave evidence of respiratory distress and other health issues experienced by themselves, or members of their family, as a result of the use of Foray 48B in previous spray programs.
Ms. W.G. Westmacott, age 78 years, lives "right in the middle" of the Highrock site. She produced a note from her physician that states she is sensitive to environmental allergens, chemical fumes, and toxins and that "potentially overhead spraying would be detrimental to her health". Ms. Westmacott testified that she would leave the area during the spray program if she could, but that she had nowhere else to go.
Ms. Mary Doody Jones submitted evidence in the form of a note from her physician confirming that she has multiple chemical sensitivities and that "Btk spraying may affect her very adversely". She also tendered a letter from Dr. John G. Hall of Victoria, who suffers from chronic lymphocytic leukaemia. He states, in part:
People with weak immune systems (like myself) or who suffer from allergies or asthma, for example, are easily affected by airborne irritants such as will result from aerial spraying.
Ms. Young submitted a report, which includes site inspection and observations, prepared by her following the Victoria/Saanich 1993-94 spray application of Foray 48B. It outlined 62 reports that attributed adverse health effects to the spray program. Ms. Young also testified that her son had a respiratory seizure shortly after the 1993 Foray 48B spray program in Victoria, although there was no hard evidence, as the physician consulted by her could not correlate the spray program to the illness but also could not rule it out.
There was also sworn testimony describing events experienced by some of the Appellants (e.g., Ms. Sokoloff and Ms. Wallace) in which their young children were observed to suffer adverse health effects at the same time as, or shortly after, past spraying programs. These effects included the onset or worsening of allergic symptoms and asthma.
The Panel heard evidence that there are 10 public schools inside the boundaries of the proposed spray sites and 2 more just outside of the boundaries. There are also private schools and day-care facilities in the area.
The Respondent submits that Foray 48B can be applied to the Permit areas in accordance with the label directions and Permit conditions in a manner that does not cause an unreasonable adverse effect to human health or the environment.
In a report submitted by CFIA, Health Risk Assessment of the Proposed 1997-1998 Control Programme for the White-Spotted Tussock Moth in the Eastern Suburbs of Auckland, Public Health Protection Service, Auckland Healthcare Services Limited, September 1997 ("the Auckland Report"), the writer states that "Btk has been identified as the contaminant in specimens on a number of occasions" (p.9), but that "on no occasion has Btk been judged by clinical staff as being causally associated with disease".
CFIA also submitted a report entitled "Microbiological and Epidemiological Surveillance Programme to Monitor the Health Effects of Foray 48B Btk Spray", prepared by Drs. Noble, Peter D. Riben and Gregory J. Cook dated September 30, 1992 (the "Surveillance Study"). Its purpose was to observe if measurable changes in health occurred during or after combined aerial and ground spraying of Foray 48B over a large urban population in the lower mainland of British Columbia. It concluded that no cases of infection were detected due to the spray program in immune-suppressed persons, hospitalized patients, or any patients studied with bacterial cultures and that there was no measurable increase in serious community unwellness that could be attributed to the spray.
The authors note that there is little information on those individuals with pre-existing problems with allergy or asthma who were made unwell by exposure to the spray but chose not to call the government Moth-line or attend a physician or hospital. Ms. Young submitted a copy of a letter from Dr. Donald A. Cameron, dated February 22, 1993, which analyzes the Surveillance Study and concludes that it is seriously flawed and must be interpreted with caution because proper baseline studies of human exposure had not been performed. It was also pointed out by a number of Appellants that this study has not been published in a peer-reviewed journal.
An expert witness on health issues called by the Respondent, Dr. Richard S. Stanwick, Regional Medical Health Officer of the Capital Health Region, testified that he has weighed the health-related aspects of the consequences that could foreseeably arise from spraying and not spraying Foray 48B. He favours the spray program with the caveat that people suffering adverse allergic or asthmatic symptoms during or after the spraying should immediately consult their physicians. He also indicated that these people should remain indoors for a longer period of time during and after the spraying. Dr. Stanwick’s main concern was that if spraying did not occur, homeowners would use chemical pesticides to deal with any moth problem they might experience. He also raised concerns about the lack of information about the "inerts". Dr. Stanwick acknowledged that people could be allergic to these unknown products.
Dr. Stanwick testified that 1% to 5% of the general population suffers from food allergies and that, in that segment of the population, estimates are that from 1 in 250 to 1 in 500 are severely allergic to the point that reactions to even very small amounts of the relevant allergens can be life-threatening. In a presentation to the Esquimalt Planning and Engineering Committee on January 5, 1998, he advised, according to the minutes of the meeting, that "Btk has a relatively long life of 21 days, in part because a base of soya and starches is used as additives to help the Btk bacilli live." He also stated that there is "a small risk associated with those who have intrinsic asthma".
Dr. Robert Weltman, an expert in toxicology called by CFIA, is a representative of Abbott Chemical and Agricultural Products, the North American registrant and distributor of Foray 48B. Dr. Weltman testified that he has conducted extensive animal testing of Bt-type pesticides, including Btk. He testified that in small animals the infectivity and pathogenicity of Btk, and the toxicity of the Foray 48B formulation is extremely low. He testified under cross-examination that he is not privy to the exact composition of the formulants or "inerts" of Foray 48B, but stated that the formulation as a whole presents a very low risk to the health of rats, even at exposure levels that are unlikely or impossible outside of laboratory conditions.
Dr. Weltman referred to a paper by J. Thomas Mcclintock, Cindy R. Schaffer and Roy D. Sjoblad entitled "A Comparative Review of the Mammalian Toxicity of Bacillus thuringiensis-Based Pesticides" (Pestic. Sci. 1995, 45. 95-105). The authors noted that despite the widespread use of B. thuringiensis-based products, only two incidents of possible allergic reaction had been submitted to the U.S. Environmental Protection Agency ("EPA"). In the first incident, the EPA concluded that the exposed individual was most likely suffering from a previously diagnosed disease unrelated to Bt. The second incident involved an individual with a previous history of life-threatening food allergies. The authors note:
After exposure to a B. thuringiensis-based product this person immediately began to experience breathing difficulties, chest tightness, mouth and throat itching and nasal congestion. The formulated B. thuringiensis product to which the individual was exposed did contain materials (i.e. a specific carbohydrate and certain preservatives) which have been implicated in food allergy. Upon review of the formulated product, the Health Effect Division (HED) of OPP determined that, since no contamination or formulation change had occurred in the end-use product, B. thuringiensis was not the causative agent.
A number of Appellants referred to a study by Margaret Green et al. entitled "Public Health Implications of the Microbial Pesticide Bacillus thuringiensis: An Epidemiological Study, Oregon, 1985-86", 1990 American Journal of Public Health, Vol. 80, No.7, which studied Oregon residents for human infections during two seasons of aerial Btk spraying for gypsy moth control. The study found that of 55 cultures from human specimens positive for B.t., in no case could B.t. infection unequivocally be said to be the cause of the disease. However, in three cases, B.t. could not be ruled in or ruled out as the causative organism. (p. 850) The paper further notes that:
In the 30 years during which B.t. has been in widespread use, there has been an increasing proportion of persons in any community who are immunocompromised on some basis. At the same time, the medical community has become more reluctant to label any bacterium as absolutely non-pathogenic to humans. (p. 852)
Evidence was also presented to the Panel by CFIA and the Respondent that the long hairs of the gypsy moth caterpillar can cause skin irritation, rashes and respiratory ailments in severe cases. However, in "A Risk Assessment of European Gypsy Moth in British Columbia" prepared by Phero Tech Inc. and Deloitte & Touche, March 1994, and tendered as evidence by CFIA, a review of the Ontario experience with the gypsy moth shows that "… there have been limited reports of allergic reactions to gypsy moths in Ontario. None of these reports have ever been documented by medical staff and as such the connection with allergic responses is considered to be weak". (p. 35)
The Panel accepts that Foray 48B has been registered in Canada by the appropriate federal agency for use in accordance with the label, which includes aerial spraying of residential areas. The Panel is, therefore, bound by the decision of the B.C. Court of Appeal in Earthcare to accept that Foray 48B is generally safe for use in accordance with the approved label.
However, the Panel also accepts that site-specific considerations can raise the level of risk associated with the use of a pesticide such as Foray 48B, and the Earthcare decision allows the Board to take such site-specific considerations into account when assessing whether it can be applied safely. In this case, the presence of a number of existing health issues raises serious concerns for the Panel. In particular, the Panel finds that legitimate health concerns are raised by the fact that there are people with respiratory problems, immuno deficiencies, multiple chemical sensitivities and allergies living in areas within or near the proposed spray sites. The large population (35,000 people) in the area to be sprayed, of course, includes children, the elderly and the immuno-compromised.
Also, the evidence before the Panel indicates that, although much of the Foray 48B spray will not be respirable, there will likely be some respirable particulate. Potentially, any respirable particulate matter could be a problem. The Panel finds that this concern has not been adequately addressed by the Respondent or CFIA. No site-specific risk assessment was done in planning for this spray program, as was done in Auckland, New Zealand.
In respect to the argument raised that backyard pesticide use by individual homeowners may increase in the event of a failure by government agencies to eradicate the gypsy moth, the Panel finds that this is conjecture and that it fails to take into account that public awareness of the dangers of pesticide use has climbed steadily in recent years.
The Panel finds that, on the balance of probabilities and with respect to the site-specific conditions relating to this appeal, the use of Btk in the manner authorized by the Permit will create risk of an adverse effect on the health of at least some of the residents of those populated urban areas to be sprayed.
2. Whether the spraying of Foray 48B, as authorized by the Permit, will cause an adverse effect to the environment, and in particular, to non-target species.
Several Appellants raised the issue of the effects of Foray 48B on non-target organisms and on the environment in general. None of the parties dispute that the Btk bacillus is lethal, not only to the first and second instar larvae (caterpillars) of the gypsy moth, but also to the young larvae of other lepidopterans such as butterflies and other species of moths. The Appellants submit that this lack of target specificity means that other species living in the spray sites, besides the gypsy moth, will be impacted if a general aerial spray program takes place. This, in turn, will create a wider adverse effect on the environment, particularly with respect to the food chains of which these insects are a part.
Ms. Young submitted anecdotal evidence in the form of reports received from EHA members, and from the general public, describing the following circumstances following spray applications of Foray 48B: dead fledgling birds and domestic chickens; a noticeable reduction of the populations of honey bees, and wasps for the duration of the season; and changes to the colouration of "wood bugs". Ms. Young further submits that such observations in the aftermath of spray programs should have been documented and studied by government agencies in order to objectively determine the extent of the site-specific ecological effects of spraying Foray 48B in the areas where it has been applied, but that this has not happened.
Mr. Derek Mallard, a witness called by the Appellant Janice Foreman, is a member of an organization called Citizens to Save the Environment. He offered testimony based on his extensive knowledge of the butterfly species and general ecology of the Victoria area. He expressed his concern that rare species of butterflies will be adversely affected by the spraying of Foray 48B. Mr. Mallard referred to a letter dated January 21, 1998 from Dr. Grant Bracher, Regional Habitat Biologist, Habitat Protection, MELP, to Mr. Heath, which states in part:
I am in favour of the selection of Btk to control the gypsy moth. Btk has low persistence in the environment and is specific to lepidopteran larvae; consequently, no adverse impacts are expected on other types of invertebrates, birds, mammals and fish through direct contact or consumption of Btk-killed lepidopterans. I do have some concerns with the potential impact of the proposed spray on larvae of rare or uncommon lepidopterans.
The letter goes on to note that several species of lepidopterans that are of concern to the Canadian Conservation Data Centre (CDC), including one blue-listed species, the Vancouver Island ringlet are found in or near the spray sites. Dr. Bracher stated that impacts on non-target species could be reduced by not spraying moist grass habitats along the shores of the lakes in the area, which, in any event, are not host habitats for the gypsy moth or its larvae. Mr. Mallard also raised concerns about the Spring Azure-Celastrina argiolys and the Satyrus Anglewing Polygonia.
While MELP and CFIA agree that Foray 48B will have an adverse effect on non-targeted lepidopteran species, they contend that the spray sites will be re-colonized from the surrounding areas after the spray program concludes and that the breeding cycle of these species will be re-established within a few years.
Dr. L. Humble was called by CFIA as an expert on insect biodiversity. He testified that a great number of insects feed on or are dependent on the Garry Oak stands found on southern Vancouver Island. The Garry Oak are a preferred food source of the gypsy moth, which is not native to British Columbia. In Dr. Humble’s opinion, given the voracious appetite of the gypsy moth caterpillars and the potential for defoliation of the Garry Oaks, there is a substantial risk of harm to many native insect populations unless the gypsy moth is eradicated.
Dr. Bracher’s letter noted above also states in part:
…Not controlling the gypsy moth would likely result in dramatic increases in gypsy moth populations, causing extreme defoliation and destruction of habitat for endemic lepidopterans. Successive years of defoliation would result in mortality of Garry Oaks and other species used as host plants by lepidopterans. Three associations of Garry Oak … occurring within the proposed treatment areas are classified by the CDC as red listed and in need of protection.
The Panel finds that, on the balance of probabilities, and with respect to the site-specific conditions relating to this appeal, the use of Foray 48B as authorized by the Permit will create some damage to non-target species. Thus it will have an adverse effect on the environment. This is not disputed by the Respondent and CFIA, although they submit that the damage will not be permanent.
Mr. Keith Jobson, representing the Unitarian Church of Victoria, submitted that the spray program, as authorized by the Permit, contravenes Canada’s commitment to the 1992 International Convention on Biological Diversity. He argued that the precautionary principle is now a part of customary international law and that, at the very least, the precautionary principle would require CFIA and the Respondent to show that they carefully assessed the risks to health and biodiversity and chose the least destructive alternative measure to deal with the risk. He also referred to Article 14 of the Convention which provides that the contracting parties, as far as possible and as appropriate, shall introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity.
Dr. Frazer of CFIA referred the Panel to Article 8, section "h" of the Convention, which provides that the contracting parties should, as far as possible and as appropriate, "prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species."
The Panel finds that while the Convention provides general principles that the contracting parties should adhere to in the conservation and sustainable use of biological diversity, the consideration of the sections referred to by CFIA and Mr. Jobson and the weighing of risks and benefits is the very task the Board undertakes in determining whether there is an unreasonable adverse impact in issuing a permit.
3. If the spraying of Foray 48B, as authorized by the Permit, will cause an adverse effect to human health or the environment, does the intended benefit of eradicating the gypsy moth populations in the proposed spray sites outweigh the adverse effects, i.e. is it unreasonable? In determining the answer to this, it is relevant to consider whether alternative methods to spraying Foray 48B are available and effective, either without, or in conjunction with, a spray program.
As noted above, the B.C. Court of Appeal in Earthcare found that, once the Board finds an adverse effect, it must weigh that adverse effect against the intended benefit. The Board has to compare the risks and benefits to determine if the anticipated risk is reasonable or unreasonable. Evidence of alternative methods is relevant to the issue of reasonableness.
At the hearing, there was a lot of discussion as to whether the spraying program would result in the "eradication" of the moth or whether the moth would just be "contained". "Eradication" has been defined in Agriculture Canada policy D-95-15, Management of the North American Gypsy Moth, July 21, 1995, as follows:
When a recognized eradication program has demonstrated two consecutive years of gypsy moth freedom from a specific geographic area.
The report entitled "Eradication Options for the European Strain of Gypsy Moth in British Columbia", prepared by G.A. Surgeoner in 1996 (the "Surgeoner report") and entered into evidence by CFIA discusses eradication as follows:
Eradication implies the elimination of the gypsy moth with no residual population. The eradication threshold is one individual.
(…)
The conceptual idea that eradication is a one-time event is wrong. There will be repeated introductions of the gypsy moth and initial eradication programs may not achieve 100% reductions. (p.8)
Established population is defined in the policy as meaning "when one or more living stages of the pest, other than male moths, have been detected within a specific geographical area for two or more consecutive years, giving evidence of a reproducing population which can sustain itself in that area."
According to Mr. Jon Bell, Regional Biologist for CFIA, the gypsy moth is not considered to have established itself in British Columbia.
In the document entitled European Gypsy Moth Management Plan for British Columbia, January 2, 1996, updated March 17, 1998 (the "Frazer Report"), Dr. Frazer writes:
The histories of the finds of gypsy moth in Kelowna and Richmond, Parksville, Saanich, Chilliwack and Hope provide unambiguous evidence of the ability of gypsy moths to become established. In each site small numbers of male moths were found having come in one or more egg masses the previous year. In all cases the population remained for an additional three years despite one or more yearly, multiple applications of Btk product. Eradication was finally achieved at the sites.
The Panel finds that while eradication of local populations may be possible, repeated introductions of gypsy moths appear to be inevitable, thus raising the possibility of more spray programs in the future.
Mr. Bell testified that CFIA adopts the Frazer Report with respect to the criteria used to determine whether a (gypsy moth) population is establishing and that, without a spray program, would become permanently established.
The criteria for establishment are: finding more than one living life stage of gypsy moths in an area, OR finding of one or more traps with more than one male moth in two consecutive years. (p. 19)
Ms. Young referred the Panel to the map of the Highrock site and pointed out that it does not meet the above criteria: i.e. there were no egg masses found in either 1996 or 1997, nor was there more than one male moth found in those two consecutive years. Under cross-examination by counsel for the EHA, Mr. Bell attempted to read the criteria as meaning "one or more male moths" found in two consecutive years and further pointed out that, if the spray area was enlarged, the criteria would be satisfied. The Panel finds that Mr. Bell’s interpretation ought not to replace the plain meaning of the criteria.
It therefore appears to the Panel that the development of a more pro-active, preventative approach may be a desirable goal in order to eradicate the gypsy moth. This is an objective that all parties agree is desirable. This brings the Panel to the question of alternative methods to the aerial spraying of Foray 48B, which will be dealt with below.
On the issue of possible economic impacts, the Panel heard evidence from those in support of the spray program and those opposed. Mr. Brian Hughes, a certified organic farmer and co-chair of the Islands Organic Producers Association (IOPA), was called as a witness by the EHA to testify on the organic farming community’s position on the use of pesticides in general, and Foray 48B in particular. Mr. Hughes stated that, although Btk is naturally occurring, it is a regulated substance and therefore certified organic farmers require permission from the certification committee to use it. It has been approved for use in its pure, unformulated form for single, specific applications on certified organic farms in a small number of cases, but the Foray 48B formulation has not been endorsed by IOPA.
He testified that certified organic gardeners are opposed to the spray application of Foray 48B in the vicinity of their farms because direct spraying over their farms, or the drift of the spray to their farms from the spray site, could lead to the loss of a farm’s certification. Such a loss of certification would have an immediate and devastating impact on the viability of a certified organic farm as a business.
CFIA called, as a witness, Mr. Bruce McTavish, a representative of the British Columbia Landscape & Nursery Association. Mr. McTavish testified that an infestation of the gypsy moth in British Columbia, and the quarantine restrictions that would likely be imposed by the U.S. in the event of such an infestation, would have a serious impact on the nursery industry. He added that approximately half of the British Columbia nursery industry’s output is exported to the U.S. and Ontario, and that a U.S.-imposed quarantine could result in $35 million in lost export sales, representing a 30 to 40 per cent drop. This would, in his opinion, inevitably lead to business failures and job losses. He also noted that the nursery industry supports efforts to reduce pesticide use and to implement IPM methods, but that, in the case of the gypsy moth, he believes that the spraying of Foray 48B is necessary.
According to "A Risk Assessment of European Gypsy Moth in British Columbia" referred to above, the authors note that currently, there are only three traded commodities from Ontario (which has had major outbreak problems with the gypsy moth) which fall under the federal quarantine guidelines. These are Christmas trees, logs with bark and nursery stock. These products are routinely inspected for the presence of a variety of pests and if found to be "free of target pests", then a certificate of inspection is issued allowing the shipment to be exported. The authors note that the establishment of the gypsy moth in Ontario has not resulted in any trade restrictions for Ontario to uninfested areas of the U.S. Further, quarantine and certification activities for affected products have not been a major problem for Ontario’s trade with the United States. (p.38-39) However, the study concludes that while the direct impact of an established gypsy moth population on British Columbia’s natural resources would likely be small, the threat of trade barriers through quarantine restrictions in the western States presents a significant incentive for continued detection and eradication.
Ms. Young submitted that the EHA supports the goal of eradicating gypsy moth populations but that it disagrees with CFIA only with respect to the means to be employed. She submitted documentation on IPM techniques that can be used to control the gypsy moth. Ms. Young and Mr. Abel added that volunteers from the community are ready and willing to participate in a gypsy moth eradication program using non-pesticide means of control in co-operation with, or under the direction of CFIA. Ms. Young also stated that the EHA is willing to accept a limited ground-spray program in order to ensure the success of the program.
Ms. Young argued that the following non-spray, site–specific methods of gypsy moth eradication are available and that they are viable options in this case:
Ms. Young submitted that the $193,000 that has been allocated for the spray program, as authorized by the Permit, would go a long way in implementing the IPM program that she is recommending.
Mr. Bell submits that there is no evidence to show that IPM or alternate control methods will guarantee success in this case and that the risk of allowing the gypsy moth population to "break out" of the region is too great. He submits that once the gypsy moths have spread into a wider area, it will be impossible to prevent them from spreading to the mainland and that U.S. quarantine restrictions could follow, with severe economic impacts.
Mr. Bell testified that an aerial spray program is the best way to provide the greatest chance of success, with the minimum risk. Mr. Bell also stated that, if aerial spraying of Foray 48B is not permitted, CFIA would have to reconsider its involvement in attempts to eradicate the gypsy moth in British Columbia. The Panel is concerned with, what appears to be, this all-or-nothing approach taken by the CFIA.
The Panel finds that the CFIA’s position in this appeal is consistent with its actions with regard to the development and implementation of previous spray programs and the program at issue in this appeal. In its 1993 decision upholding a permit to spray in the Victoria area, (see Citizens Association to Save the Environment et al. v. Canada Minister of Agriculture, Environmental Appeal Board, Appeal No. 92/13, April 8, 1993) (unreported)), the Board commented that:
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.
This direction was ignored. In its 1994 decision in Victoria Appellant Group v. Canada Minister of Agriculture (Environmental Appeal Board, Appeal No. 93/13(b), April 27, 1994)(unreported)), the Board stated that it was most concerned the Canadian Department of Agriculture ignored its 1993 recommendation that it consult with Appellant groups before any further spray programs were undertaken. The Board commented as follows:
Even if the Respondent was convinced that an effective volunteer program was not possible, it should have made an approach and discussed the complexity of the problems with the Appellants and the volunteers. By ignoring the volunteers the Respondent not only showed arrogance but also seriously damaged its own credibility. The public meetings cannot be classified as consultation. They were information meetings at which the Respondent stated what it was going to do.
The Panel repeats its recommendation that as soon as the Respondent considers an eradication program is or may be warranted in any area, not only in the vicinity of Victoria, it approach the public in a spirit of co-operation and consultation to see how best public support and assistance can be mobilized. There is no other way by which the present atmosphere of distrust can be alleviated.
The Panel finds that these comments also apply to the circumstances leading to this appeal. CFIA has again failed to approach groups and individuals in the community that have participated in past appeals against the spraying of Foray 48B; groups and individuals with which CFIA should by now be familiar. The Panel finds that the distribution of flyers and the one community meeting organized by CFIA for December 4, 1997, were insufficient for the purpose of true consultation, in particular because the design of the flyers was such that it was not clear that an aerial spraying program was imminent.
The Panel finds that the decision to proceed with aerial spraying, for all intents and purposes, was made before any public involvement.
Meetings were held with a number of stakeholder groups in November-December, 1996. None of these meetings were with community groups or the Appellants. Dr. Frazer submitted that, because CFIA knew the position that the Appellants would take, there would be no point in consulting with them. The Panel notes that its previous comment was not just directed to meeting with the groups, but was to actually involve the groups in an alternatives program. The idea behind the proposed consultation was to avoid further spraying by attempting alternative methods. The Panel finds that no effort was made by CFIA to either contact or consult with these groups. Indeed, Mr. Henry from CFIA, who was responsible for setting up the stakeholder and public meetings, testified that he was never given direction to set up meetings with these groups.
By the fall of 1996, CFIA knew from the results of its detection trapping program, that there were gypsy moths in the Greater Victoria area. Consultation should have started then. It is clear that CFIA sees the Board as just one more obstacle in its path to spray and neither respects or follows the Board’s recommendations.
The Panel finds that alternative methods exist and that, at least some of them, can be effective in helping to control gypsy moth populations. Although the Panel finds that CFIA considered a number of methods for controlling or eradicating the gypsy moth, the Panel also finds that CFIA failed to consult with community stakeholders and to take the willingness of volunteers in the community into account in rejecting non-spray methods as viable options.
DECISION
Thousands of pages of documentation were submitted by the parties before and during the hearing. In making this decision, the Panel of the Environmental Appeal Board has carefully considered the documentary evidence and testimony placed before it by the parties, whether or not specifically referred to here.
Taking into consideration the risks and intended benefit of the spray program authorized by the Permit, the Panel finds that aerial spraying of Foray 48B over the proposed, heavily populated areas is unreasonable in this case. The Panel finds that aerial spraying will create an unacceptable risk of health problems among the residents of these densely populated areas. In particular, the Panel agrees with the Appellants that there is a risk to the health of children, people of all ages who have allergies, asthma, and other respiratory ailments, people with immuno deficiencies, chemical hypersensitivities, and the elderly. It also poses an unreasonable adverse effect to the environment (non-target species).
All parties agree that detection and eradication of the gypsy moth is an important goal. The Board concurs. Further, while all parties agree that the gypsy moth can potentially cause problems for the economy of British Columbia, it is clear that there are methods other than aerial spraying available which can reasonably be employed on the facts of this case, to address the problem. The options are not limited to aerial spraying of Foray 48B or do nothing. CFIA does not say that the gypsy moth problem, as identified to date, cannot be addressed through alternative methods; only that it is more cost effective and efficient to do so through aerial spraying.
Given the trapping detection results to date, the limited areas where gypsy moths tend to live (Garry oaks, etc.), the Panel finds that to allow aerial spraying over heavily populated tracts of urban areas poses an unreasonable adverse effect, when viable alternatives are available.
Section 15(7) of the Pesticide Control Act provides that the appeal board may
It is the decision of this Panel to refer the Permit back to the Deputy Administrator to vary and amend Pesticide Use Permit 214-018-98 to reflect the following orders:
At the commencement of the hearing, the Respondent filed a letter from Dr. Stanwick requesting an amendment to condition D which dealt with who the public should notify if experiencing medical symptoms which they think may be caused by the spray. The Panel agrees that the Deputy Administrator should make this amendment.
The Panel also recommends that the Permit direct CFIA to consult with the Appellants regarding the implementation of alternative methods discussed in this decision, in support of the limited ground spray program in the Langford, Craigflower and Highrock sites. For example, a phone line can be set up whereby people can report caterpillar sightings on vegetation and CFIA can respond accordingly.
The evidence establishes that, whatever the method employed to deal with gypsy moths, there is no guarantee of total success, and in any event, repeated introductions of the gypsy moth appear to be inevitable. The Board finds that this is an appropriate time for a proactive and preventative approach to address the gypsy moth problem in the Greater Victoria area.
COMMENT
The Panel again reiterates its recommendation that CFIA include community groups as stakeholders along with industry and health officials in its planning processes with regard to future proposals to eradicate populations of the gypsy moth. In the case of the Greater Victoria area, the stakeholder list should include the groups, and individuals who were Appellants in this appeal.
Future Pesticide Use Permit applications should be submitted to MELP in a timely fashion to allow sufficient time for the appeal process before the spraying season "window of opportunity" occurs. This is the second appeal the Board has heard in which the imminent emergence of gypsy moth larvae has coincided with the hearing date, creating great difficulties for the Board which requires time to render a decision based on a careful review of all the submissions. In this case, the Pesticide Use Permit application was submitted to MELP just days before the Christmas holidays, resulting in inevitable processing delays. The Panel finds this to be unacceptable.
The Panel also finds that the CFIA has shown a degree of arrogance and high handedness in ignoring the previous recommendation of the Board to approach community groups that have shown that they are concerned about aerial spraying and that have volunteered their assistance as an alternative to wide-scale spraying.
Toby Vigod, Chair
Environmental Appeal Board
April 15, 1998
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