ENVIRONMENTAL APPEAL BOARD Province of British Columbia

Transcription

1 ENVIRONMENTAL APPEAL BOARD Province of British Columbia APPEAL NO. 90/7 PES In the matter of appeal under s. 15 of the Pesticide Control Act, RS Chap. 322, 1979, on Pesticide Use Permits and , issued by the Administrator, Pesticide Control Act, to BC Hydro and Power Authority. BETWEEN Pulp, Paper and Woodworkers of Canada (PPWC) APPELLANT AND BC Hydro and Power Authority (HYDRO) RESPONDENT BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD Mrs. L. Michaluk, Chairman Mr. H. Hunter, Member Ms. V. Huntington, Member DATE November 1, 1900 PLACE APPEARING Kamloops Travel Lodge, Kamloops BC For Appellant Mr. Lloyd Manchester, Spokesman Mr. Greg Melnechuk, PPWC Mr. Barry Reiter, PPWC Ms. Valerie Manchester For Respondent Ms. Kasha Mattu, Spokesman Mr. Adrian Miller, Hydro Mr. Don Sim, Hydro Ms. Ann Tardiff, Consultant The Pesticide Control Branch was represented by Mr. Stuart Craig. EXHIBITS No. 1 Letter addressed to Mrs. Wilson, from S. Craig, Regional Manager, Pesticide Control Program, Southern Interior Region, Ministry of Environment. No. 2 Notice of Appeal of Pesticide Use Permits and , dated July 17, No. 3 Bundle of Documents - A-C No. 4 Hand-drawn plan showing proximity of treated hydro pole to existing ditch. No. 5 WOODFUME product information sheet No. 6 Bundle of Documents - A-C

2 APPEAL NO. 90/7 Page 2 No. 7 Bundle of newspaper advertisements - A-C No. 8 Bundle of Documents - A-K No. 9 BC Hydro Distribution Maintenance and Operations Standard, Wood Poles - Preservative Handling, Appendix A, Pesticide Spill Contingency Plan THE APPEAL The Pulp, Paper and Woodworkers of Canada (PPWC) was appealing the granting of Pesticide Use Permits and issued to BC Hydro and Power Authority (B.C Hydro) for the application of WOODFUME, TIMPREG B. SPECIAL, POLE NU PAK and PATOX POLE BANDAGE to BC Hydro poles in various areas throughout BC. The Grounds of Appeal as presented by the PPWC were: 1. The permitted application of products containing penta-chlorophenol and other phenols will cause an unreasonable adverse effect on humans and for the environment. 2. Federal Registration of WOODFUME, TIMPREG and POLE NU PAK etc, does not imply that these chemicals are safe or that they will not have an adverse effect on human health and the environment. 3. The (inert) inactive ingredients are not known. These may cause adverse effects on human health and the environment. 4. The use of WOODFUME, TIMPREG and POLE NU PAK involve a risk to humans and the environment that is inherent in the application. 5. Pentachlorophenol (PCP) contains dioxin - in particular 2,3,7,8, TcDD in parts per trillion range - a potential human carcinogen and should not be used. 6. The synergistic effects are unknown and are a risk to humans and should not be used. 7. The notification of Hydro's Pesticide Use Permits is inadequate and they do not provide nitrification for all those affected. The distribution of the Vancouver Sun and Province does not extend to all the treated areas 8. There is no notice given of who the contractor is or what certification if required. Between the time the Appeal was filed with the Environmental Appeal Board and the hearing held, Hydro requested the withdrawal of the use of products containing pentachlorophenol, more specifically TIMPREG B SPECIAL, PATOX POLE BANDAGE and POLE NU PAK, from the relevant Pesticide Use Permits. This withdrawal was subsequently granted by the Administrator of the Pesticide Control Act, and the permits were so amended.

3 APPEAL NO. 90/7 Page 3 OPENING Mr. Manchester, in his opening, stated that although the original appeal had been largely concerned with the use of PCP's, PPWC was concerned with the problems posed by other chemicals as well. Even though PCP's were no longer going to be used within these permits, Hydro is using them elsewhere in the Province Therefore, Mr. Manchester indicated that he would be proving that there were difficulties associated with use of PCP's. Mr. Manchester said that in his opinion, the appeal process is flawed. He felt that it should be incumbent upon the Permittee to demonstrate why chemical use was justified rather than for the Appellant to have to show that use of the chemical would pose a problem. The Respondent stated their intention to present evidence as a panel rather that as individuals. As there was no objection raised at the time by the Appellant, this was accepted. The Chairman indicated that while she would not prevent any information from being entered as evidence, the Panel would only be dealing with the Permits before them which had been amended to delete the use of PCP's. All evidence would receive whatever consideration the Panel felt appropriate when deliberating and setting down the Decision. EVIDENCE What follows is a brief summary of evidence presented during the hearing. Pesticide Branch Mr. Craig stated that he was appearing in response to a request from the Environmental Appeal Board, and that he had elected to attend as a witness for the Board. He then proceeded to outline the process the permit approval` process and confirmed that this particular permit had undergone the necessary reviews and had met all statutory requirements. Mr. Craig confirmed that in his opinion, use of WOODFUME in accordance with the Permit conditions would not cause an unreasonable adverse environmental impact. The Appellant The witnesses indicated that they had not seen the advertisements in the Vancouver Sun or the Province and had been made aware of the intention to apply chemicals to the hydro poles through conversations with friends and neighbours. They knew that those papers were available in their communities but not everyone was able to have door-to-door delivery. They felt that notification in the local papers should have been required, and also that regular advertisements would have been preferable to publication in the Legal section. Evidence was presented that the contractor for Hydro had not exercised the permit properly as a pole had been treated which was within 5 feet of a ditch. The

4 APPEAL NO. 90/7 Page 4 Appellant felt that this was a violation of Section E of the permit which stated that no application may be conducted within 5 metres of any water body. Concern was expressed over the perceived failure of the Federal pesticide registration process to address the inclusion of "inert" ingredients in pesticides. The fact that the Federal Government was conducting country-wide discussions on the regulation process was presented as recognition by the Federal Government themself that their registration process is flawed. The lack of information on the total formulation of the pesticide was a major area of concern. Previous experience has shown that chemical companies do not disclose the inert ingredients which have been added to the active ingredient to make the actual pesticide. Evidence was presented which the Appellant felt represented contradictory information as to the nature of inert ingredients in WOODFUME. They alleged that this proves there is way of knowing whether or not the product is safe; therefore it should not be used. The Appellants indicated that while they do not have a problem with the protection of hydro poles, they do have difficulty with the aspects of disclosure, and community and employee safety. They also stated that as chemical companies are governed by the profit motive, their test results are suspect. Therefore, it should not fall to the public to have to prove that the chemicals are not safe. The onus should be on the regulating body to prove that use of the chemicals will not pose health and environmental hazards. The Permit Holder Representatives for the permit holder stated that the intent of the permit was to inject the poles with WOODFUME, a federally registered pesticide, so as to protect and extend the life of the poles. The actual application of the chemical to the pole is done by licensed contractors who are monitored by licensed inspectors employed by Hydro. The treatment is required to prevent decay and insects in standing wood poles. The method of treatment involves boring holes into the pole, injecting the holes with WOODFUME and plugging the holes with wooden dowels. While all poles would be checked within a specified time, only those poles which did not show evidence of rot would receive treatment. Hydro controls and dispenses the chemical to the contractor who must account for the amount used. This permit encompasses pole treatment throughout the south. interior of the Province. It was due to the extent of the proposed treatment area that Hydro published the permit in both the Vancouver Sun and the Province newspapers, as well as the District offices. Hydro has struck a Task Force on Corporate Use of Wood Preservatives, which includes a comprehensive review of alternatives to use of wood preservatives and wood pole material. They have also adopted a pest management strategy which will result in the elimination of the dependence pesticides and preservatives on wood

5 APPEAL NO. 90/7 Page 5 poles. At this time however, Hydro is unaware of an acceptable or suitable alternative to the use of WOODFUME. Cross Examination The following represents some of the points raised during cross-examination: 1. the Appellant did not attempt to contact the Respondent for information regarding the identity of the contract applicators or on the method of treatment; 2. on those occasions when the Appellant contacted the Respondent, all information requested was forwarded in a timely manner; 3. the alleged permit infraction regarding the treatment of a pole near the Wilson residence had been investigated by a Pesticide Control Inspector who found that the treatment had been undertaken in a safe manner and according to permit conditions. Hydro, the contractor and Mrs. Wilson were all contacted with the results by the Ministry; 4. the Appellant is not aware of the existence of an alternative pole treatment which could substitute for WOODFUME; 5. the contractors retained by Hydro for these projects have been used without problem by Hydro in the past; 6. the Respondent has a Spill Contingency plan in effect; 7. the Respondent complied with the request of the Pesticide Control Branch by advertising in both the Vancouver Sun and Province newspapers, and by posting the permits in the District Offices;. 8. the Respondent has not had WOODFUME independently tested to ascertain the inert ingredients; 9. all workers applying the chemicals must wear the proper protective clothing as inspected by Hydro; 10. WOODFUME would not be injected into rotten wood; the boring would continue until sound wood was located; 11. the method of application of WOODFUME does not result in the pesticide finding its way into the general environment; 12. as part of a recently adopted strategy, the Respondent will be advertising future permits in local papers.

6 APPEAL NO. 90/7 Page 6 DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the evidence placed before it and all comments made during the cross-examinations, whether or not they have been specifically reiterated within the body of this document. WOODFUME has been registered by the Federal Ministry of Agriculture for use in this country. The Ministry of Agriculture has deemed that if used within certain conditions, the product will not pose a health or environmental hazard. The BC Court of Appeal has ruled that it is not within the mandate of the Environmental Appeal Board to challenge this finding. The fact that the Federal Government is currently re-evaluating their registration procedure does not change the fact that WOODFUME is registered for use and therefore does not change the authority of the Panel to address this concern. The Environmental Appeal Board can however consider whether or not the use of a pesticide will result in unreasonable adverse environmental impact. There was no evidence presented that the use of WOODFUME according to the permit restrictions would have this deleterious outcome. The area covered by the Permits is very large; it therefore stands to reason that newspaper notification should be as comprehensive as possible. The Respondent used the Vancouver Sun and Province newspapers as one if not both of these papers receives provincial circulation. While individuals may not subscribe to these papers in smaller areas, evidence was presented which indicated the papers themselves are available in smaller communities. It would therefore appear that the notification requirement of the permit was met, although the comments concerning publication in local newspapers did not pass unnoticed by the Respondent or the Panel. It is therefore the unanimous decision of the Panel of the Environmental Appeal Board that appeal be dismissed. COMMENTS The Panel wishes to thank all participants in this Appeal. The courtesy displayed during the hearing will no doubt contribute to a good working relationship between these parties. Although the appeal was dismissed, the Panel has some comments and recommendations it feels should be made. Before a Pesticide Use Permit is issued in the Province of BC, it is reviewed by a committee. This is a very thorough process and involves agencies such as Fish and Wildlife, Fisheries and Oceans, Ministry of Health and others. The comments of these agencies assist the Administrator in structuring the restrictions included in the permit once it is issued, It is possible that there are members of the public who are

7 APPEAL NO. 90/7 Page 7 either not aware that these comments have been issued, or who have concerns that these comments have not been addressed by the Administrator. The Panel of the Environmental Appeal Board recommends that all comments of the Pesticide Review Committee be circulated as general information to Appellants and Respondents at the time an appeal if filed. The question of what exactly comprises the total formulation of a pes4cide, i.e. inert ingredients, is not a new one. This issue has been raised at several hearings of the Environmental Appeal Board. The public is naturally concerned that they have all of the information on what exactly is being used around their homes and on public land. The Panel of the Environmental Appeal Board recommends that the Province of British Columbia call on the Federal Government to mate it a requirement of pesticide registration that all constituent parts of the total product formulation be printed on the label. The issue of advertising pesticide use permits is also not a new issue for the- Environmental Appeal Board. The Panel was pleased to learn that in the future, Hydro will be advertising the permits in local newspapers. The Panel of the Environmental Appeal Board recommends that as there are many local papers, and as there is a possibility that some local papers may be missed, that Hydro also continue to advertise in the Vancouver Sun and/or the Province so that the required coverage occurs, at least until they are satisfied that no area will be missed. Linda Michaluk Chairman Environmental Appeal Board November 30, 1990