Appeals from the Pesticide Control Act 2004 Summaries

Environmental Appeal Board

 
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.

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Appeals from the Pesticide Control Act 2004 Summaries

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

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Appeals from the Pesticide Control Act 2004 Summaries

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

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Appeals from the Pesticide Control Act 2004 Summaries

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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