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Appeals from the Pesticide Control Act 2004


2001-PES-003(b) Josette Wier v. Deputy Administrator, Pesticide Control Act, (Minister of Forests, Morice Forest District)

Decision Date: November 8, 2004

Panel: Alan Andison

Keywords:  Pesticide Control Act - ss. 1, 6(3)(a)(ii); adverse effect; cost-benefit analysis; reconsideration of appeal; MSMA

Josette Wier (the “Appellant”) appealed a pesticide use permit issued by the Deputy Administrator, Pesticide Control Act (the “Deputy Administrator”) for the application of monosodium methane arsenate (“MSMA”) to control beetle attacks on forests in the Morice Forest District and Tweedsmuir Provincial Park between May 14, 2001 and October 31, 2003. 

On July 23, 2002, the Board issued a decision that confirmed the permit, subject to certain amendments.  In its decision, the Board applied a two-part test asking: 1) whether the use of MSMA would cause an adverse effect; and, 2) if so, according to a risk-benefit analysis, is the adverse effect unreasonable?  Finding that, subject to certain amendments, the permit would not cause “an unreasonable adverse effect,” the Board found it unnecessary to review the second part of the test.  The Appellant applied to the B.C. Supreme Court for a judicial review.  The Court concluded that the Board had erred in failing to apply the second part of the test, and sent the matter back to the Board with directions to “consider the viable alternatives disclosed by the evidence when applying the second step of the legal test.”

The Board considered the evidence of all parties on the risks and benefits of using MSMA and alternative methods to control beetles in the affected areas.  The Board found that the risks associated with MSMA use under the terms of the permit were mitigated to a reasonable level when the permit was amended as originally directed by the Board.  The Board found that costs and risks associated with alternative treatment methods made those alternatives unreasonable.  Accordingly, the Board confirmed the decision of the Deputy Administrator to issue the permit, subject to the changes ordered by the Board.

The appeal was dismissed.

2004-PES-001(a) Jim Fairall v. Deputy Administrator, Pesticide Control Act

Decision Date: July 14, 2004

Panel: Lynne Huestis

Keywords:  Pesticide Control Act - ss. 4, 13, 24; licence to sell; bonding and insurance; suspension and revocation

Jim Fairall appealed the Deputy Administrator’s decision to revoke Mr. Fairall’s pesticide applicator certificate to restrict his right to apply for a new certificate.

The Deputy Administrator revoked the certificate on the basis of his finding that Mr. Fairall had: 1) held himself out as someone with a pest control service licence and liability insurance when he had neither; 2) offered services which required him to have a licence; and, 3) ignored warnings from the Deputy Administrator that he needed both a licence and liability insurance.

The Board found that Mr. Fairall’s advertising did give the impression that he was licenced by the provincial government.  The Board further found that he had offered to apply pesticides on a fee for service basis.

In response to Mr. Fairall’s submission that the revocation had occurred without his being afforded a chance to be heard, the Board found that he had been informed of the reasons for the revocation prior to it occurring and had refused an invitation to meet with staff of the Deputy Administrator to discuss the status of his pesticide applicator certificate.  Therefore, the Board held that there was no breach of procedural fairness by the Deputy Administrator.  The Board also found that the revocation was an appropriate enforcement action.

The appeal was dismissed.

2003-PES-003(a) Nadine Dechiron on behalf of the Granby Wilderness Society and Boundary Naturalists v. Deputy Administrator, Pesticide Control Act (Ministry of Forests, Third Party)

Decision Date: June 1, 2004

Panel: Alan Andison

Keywords:  Pesticide Control Act - ss. 1 definitions of “adverse effect,” “integrated pest management” and “pest management plan”, 6, 12,13; pest management plan, glyphosate; triclopyr; “unreasonable adverse effect;” Canadian Earthcare Society v. Environmental Appeal Board (1988) 3 C.E.L.R. (N.S.) 55 (“Canadian Earthcare”); Islands Protection Society v. British Columbia Environmental Appeal Board (1988) 3 C.E.L.R. (N.S.) 185 (“Islands Protection”); grizzly bears

Nadine Dechiron, on behalf of the Granby Wilderness Society and the Boundary Naturalists (the “Appellant”) appealed the issuance of an approval (the “Approval”) of a pest management plan by the Deputy Administrator.  The Approval was issued to the Minister of Forests, BC Timber Sales, Kootenay Business Area (“MOF”).  The plan and the Approval together authorize the use of pesticides to control vegetation in cutblocks on Crown land in the Boundary Timber Supply Area for a five-year term.

The Appellant sought an order reversing the Approval, or, in the alternative, an order adding conditions prohibiting the eradication of, and use of pesticides on, grizzly forage foods.  The Appellant raised a number of issues, including: the appropriate test for determining whether a plan will cause unreasonable adverse affects; whether the Deputy Administrator had improperly delegated his discretion in making the Approval; whether the plan met statutory requirements for content; and whether the plan could result in a use of pesticides that would have an unreasonable adverse effect.

The Board reviewed relevant legislation and case law to determine whether the test that is applied by the Board in determining whether a pesticide use will have an unreasonable adverse effect is appropriate for evaluating pest management plans.  It found that the test was appropriate for evaluating pest management plans.  The Board also found that the plan in this case met statutory requirements for plan content and that the Deputy Administrator did not improperly delegate his authority to MOF when he approved the plan.

With regard to the question of whether the use of pesticides in accordance with the plan and the approval would cause an unreasonable adverse effect, the Board found that the Appellant provided insufficient evidence to establish that the pesticide use will have an adverse effect on grizzlies as a result of ingesting or directly contacting pesticides.  The Board also found, based on expert testimony from both sides, that the pesticide use might have an adverse effect through the loss of grizzly bears’ food plants and that the Approval does pose some risk to the bears, particularly breeding females.  The Board found that the plan did not reduce the risk of loss to food plants to a reasonable level.

The Board ordered the Deputy Administrator to amend the Approval to include conditions: 1) requiring assessment of grizzly bear food production on sites anticipated for herbicide use; and, 2) prohibiting the use of glysophate in cutblocks that have exceptional amounts of grizzly bear foods.  The Board was satisfied that, if the Approval was so amended, the use of pesticides under the plan and the Approval would not have an unreasonable adverse effect.  The Board upheld the remainder of the Approval.

The appeal was allowed, in part.

2004-PES-002(a), 2004-PES-004(a), 2004-PES-005(a) Ecological Health Alliance, Gordon Watson, Nonna Weaver v. Deputy Administrator, Pesticide Control Act (Ministry of Forests, Third Party)

Decision Date: April 14, 2004

Panel: Alan Andison

Keywords:  Pesticide Control Act - s. 6; gypsy moth; BTK; Foray 48B; pesticide use permit; aerial spraying

The Ecological Health Alliance, Gordon Watson and Nonna Weaver (the “Appellants”) appealed the issuance of a pesticide use permit by the Deputy Administrator, Pesticide Control Act.  The permit authorized the use of Foray 48B, with the active ingredient Bacillus thuringiensis Berliner ssp Kurstaki (“BTK”), in a spray program designed to eradicate localized populations of the North American gypsy moth in Saanich and Delta, British Columbia.  The Appellants sought an order to cancel the permit, or, in the alternative, an order varying the permit so that it does not allow aerial pesticide or other pesticide applications on people and their homes.

The issues in this appeal were whether aerial spraying Foray 48B, as authorized by the permit, would cause an adverse effect on human health or the environment, and, if so, whether the adverse effect(s) would be unreasonable.

The Board found that the use of Foray 48B, as authorized by the permit, would have an adverse effect on the environment as it would kill non-target moths and butterflies, and may pose a risk of an adverse effect on the health of some people residing within the spray zones.

The Board found that the adverse effects of the proposed spray program were not unreasonable in the circumstances of the permit.  The Board found that the adverse effects did not outweigh the potential economic harm to the provincial economy if a gypsy moth population became established and resulted in the imposition of trade sanctions on products exported from British Columbia.  In addition, the Board found that, based on the evidence, the harm to the environment would be limited to non-target butterflies and moths, and would be temporary, while the risks to human health, should a person be directly exposed to the pesticide, would be temporary and relatively minor.

The appeals were dismissed.

2003-PES-012(a); 2003-PES-013(a) Robert Stacy on behalf of the Cowichan Beekeepers and Stan Reist on behalf of the Nanaimo Beekeepers Association v. Administrator, Pesticide Control Act (British Columbia Minister of Health Services, Third Party)

Decision Date: April 8, 2004

Panel: Alan Andison

Keywords:  Pesticide Control Act - s. 6, 12; Pesticide Control Act Regulation - s. 16, 18; West Nile virus; pesticide use permit; honeybee; malathion; pyrethins; synthetic pyrethoids

Robert Stacey, on behalf of the Cowichan Beekeepers, and Stan Reist, on behalf of the Nanaimo Beekeepers Association (the “Appellants”), appealed the decision of the Administrator, Pesticide Control Act, to issue a pesticide use permit.  The permit authorized the application of pesticides for the purpose of controlling mosquitoes in areas of British Columbia where there was a risk to human health from the West Nile virus.  The Appellants asked the Board to remove from the Permit those pesticides that target adult mosquitoes (adulticides), or in the alternative, to add various conditions to the permit to address their concerns.

The issues in the appeal were whether the application of adulticides, as currently authorized by the permit, created an “unreasonable adverse effect” and should be removed from the permit, whether the permit should be amended to include additional conditions, and whether there has been, and will continue to be, inadequate public consultation in relation to the treatments authorized by the Permit.

With regard to the first issue, the Board found that the Appellants had established that the application of adulticides authorized in the permit may have an “adverse effect” on honeybee populations, which would result in damage to the environment.  The Board determined, however, that the potential adverse effect was not unreasonable.  Specifically, the Board found that the adverse effect to honeybees did not outweigh the intended benefit to the human population in British Columbia, and the permit set out a measured response based on the level of risk to the population.  Nonetheless, the Board ordered that the permit be amended to limit the application of adulticides to the hours between dusk and dawn.  The Board determined that the amendment would remove the unnecessary risk of an adverse effect to honeybees, because mosquitoes are most active at night and honeybees are most active during the day.

Regarding the second issue, the Board found there was no need to amend the permit to include additional restrictions on pesticide use.  The Board found that the permit was clear in describing the permitted pesticide control products, as well as the terms of activation and triggering of spraying.  Furthermore, the Board held that it did not have the power to amend legislation, as requested by the Appellants.

Finally, the Board determined that the permit provided for sufficient public notification and consultation prior to treatment.  The Board determined that the Appellants' proposed amendment requiring the permit holder to publish notice of intended treatments 30 days before they commenced was not reasonable.  The Board found that the permit was designed to address emergency situations and the proposed amendment would create time restrictions that may disrupt the effectiveness of the treatments.

The appeals were allowed, in part.

2003-PES-014(a) Tom Eberhardt v. Deputy Administrator, Pesticide Control Act (Merrill & Ring Forestry, Inc. Third Party)

Decision Date: January 12, 2004

Panel: Alan Andison

Keywords: Pesticide Control Act - s.15(7); pest management plan; approval; Vision; Release

Tom Eberhardt appealed the Deputy Administrator’s decision to approve Pest Management Plan 390-015-03/08 (the “PMP”).  The approval was in relation to the authorized use of the herbicides Vision and Release to manage vegetation competing with crop trees.  Mr. Eberhardt sought an order rescinding the PMP.

The issues in the appeal were: whether the use of pesticides, as authorized by the PMP, would cause an adverse effect on human health or the environment; and, if so, whether the adverse effect is unreasonable.

The Board concluded that Mr. Eberhardt’s submissions contained no evidence to establish that the use of herbicides in accordance with the terms and conditions of the PMP will create an adverse effect on human health or the environment.  In addition, the Board held that there was no evidence submitted to demonstrate that the PMP approval was issued contrary to the requirements of the Pesticide Control Act.  Accordingly, there was no need for the Board to receive reply submissions from either the Deputy Administrator or Merrill & Ring.

The appeal was dismissed.

 

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