Environmental Appeal Board

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1 Environmental Appeal Board APPEAL NO. 96/26 In the matter of an appeal under section 15 of the Pesticide Control Act, R.S.B.C. 1996, c BETWEEN: B.C. Rail APPELLANT AND: BEFORE: DATE OF HEARING: PLACE OF HEARING: Deputy Administrator Pesticide Control Act RESPONDENT A Panel of Environmental Appeal Board David Brown, Panel Chair December 2, 1996 and February 27, 1997 Vancouver, BC and Squamish, BC APPEARING: For the Appellant: John Brodie For the Respondent: Bayne Vance APPEAL This is an appeal against the Pesticide Administrator's decision of July 30, 1996, to deny a Permit (Application # /98). On December 31, 1995 BC Rail had applied to the Pesticide Management Branch for a permit to treat brush on the BC Rail right-of-way between Garibaldi (Mileboard 59) and Marne (Mileboard 131) using Tordon 101, Garlon 4 and Roundup (the "Permit Application"). The Permit Application was denied by B. P. Vance, Deputy Administrator, Pesticide Control Act on July 30, The authority for this Panel of the Environmental Appeal Board to hear this appeal is found in the Environment Management Act, and in section 15 of the Pesticide Control Act. B.F. Vance, Deputy Administrator, Pesticide Control Act, in denying the Permit Application made the following statement: Denial of the application is based on the inability of this office to ascertain whether or not the use of the herbicides in the intended manner would result in the contamination of ground and/or surface waters used for potable purposes. I am particularly concerned about such possible water contamination on that portion of the line between Mile 110 and Mile 131 where a number of people apparently acquire their water from sources in close proximity to the right-of-way.

2 APPEAL NO. 96/26 Page 2 The Appellant s grounds for appeal were as follows: a) The products for use in control of brush along the BC Rail right-of-way, namely Roundup and Garlon 4, with usual careful and professional application, can and will be used safely. b) Through telephone discussions, correspondence, an information meeting and a public forum, BC Rail has demonstrated its commitment to work towards a program which addresses the concern of residents. c) BC Rail has, during this communication process, outlined effective procedures for accommodating specific concerns expressed by residents regarding a potential threat to water supplies and other sensitive water areas. d) The Director s decision can not be supported on scientific or environmental grounds. In this decision the BC Rail Right-of-way between Garibaldi (Mileboard 59) and Marne (Mileboard 131) will be referred to as the Spray Application Area. B.C. Rail initially applied to use three different herbicides in a spraying program; namely, Garlon 4, Tordon and Roundup. It subsequently requested that the most controversial of these herbicides; namely, Tordon, be deleted; this left Roundup and Garlon 4 in the permit application. In this decision Roundup and Garlon 4 are referred to collectively as the Permit Application Pesticides. Review of Evidence The countryside in the vicinity of the Spray Application Area is lightly populated; however, there are nodules of population particularly between Mile 110 and Mile 131. Most of the people who objected to the granting of a Permit came from the Birken area around Mile 115. Roundup and Garlon 4 are herbicides which have been approved for application in Canada pursuant to the federal Pest Control Products Act. The label for these pesticides include: various instructions, restrictions and warnings on their use. For Roundup under Environmental hazards the following is an excerpt: Avoid direct applications to any body of water. Do not contaminate water by disposal of waste or cleaning of equipment. Avoid contamination of seed, feed, and foodstuffs. Do not allow spray mist to drift since even minute quantities of spray can cause severe damage or destruction to nearby crops, plants or

3 APPEAL NO. 96/26 Page 3 other areas on which treatment is not intended, or may cause other unintended consequences, For Roundup under General Use Precautions, the following is an excerpt: Attention: Avoid contact with foliage, green stems, or fruits of crops, desirable plants and trees since severe injury or destruction may result. Avoid drift - extreme care must be used when applying this product to prevent injuring desirable plants and crops. For Garlon under Environmental Hazards the following is an excerpt: This pesticide is not labelled for application to water surfaces. Keep out of lakes, ponds and streams. Do not contaminate water by cleaning of equipment or disposal of wastes. For Garlon under General Use Precautions the following is an excerpt: Do not apply Garlon 4 directly to, or otherwise permit it to come into direct contact with grapes, tobacco, fruit or vegetables crops, flowers or other desirable broadleaf plants and do not permit spray mists containing it to drift onto them. Keep out of lakes, streams. and ponds. Do not contaminate water by cleaning of equipment or disposal of waste. Do not contaminate irrigation ditches or water used for domestic purposes. There was considerable evidence presented at this hearing concerning whether or not Roundup and Garlon 4 were safe to use. The Appellant called Dr. Frank Dost as a witness. He was qualified as an expert witness. Dr. Dost s evidence was for the most part of a general nature. His testimony largely focused on whether or not Garlon 4 and Roundup were fundamentally safe - rather than whether or not Garlon 4 and Roundup, given the precautions set forth in the label information could be used safely in this particular location. He did give evidence that Garlon 4 was not poisonous to deer or bees. Dr. Dost stated that there were some health risks to workers involved in mechanical treatment of brush - a danger from inhaling benzene and carbon monoxide. Dr. Dost did not make reference to any specific studies of the effect of the use of mechanical brush removal equipment on the health of workers. On cross-examination Dr. Dost said that while a thorough job has been done to inventory water sources in the vicinity of the Spray Application Area, he could not give assurances that no sites had been missed. The Appellant also called Mr. Nicholl as an expert witness - his expertise (for the purpose of this hearing) was in the area of employee safety. Much of Mr. Nicholl s evidence concerned the danger of brush and the related difficulties of carrying out

4 APPEAL NO. 96/26 Page 4 mechanical treatment in the ballast area of the railway right-of-way. He did not give any specific evidence concerning safety problems in previous mechanical treatments of the subject area although this apparently has been the primary method of treatment for the previous 75 years. Mr. Clark also gave evidence on behalf of the Appellant. Mr. Clark is a long-time employee of the Appellant. He stated that he knew of no adverse effect from the Appellant s previous chemical treatments of brush (on other parts of its right-ofway). Mr. Clarkson was the first witness called by the Respondent. He is an employee of the Ministry of Environment, Lands and Parks. He testified that there are a number of private water sources near the railway in the Birken area but he doubted whether they had all been identified. He identified the soils in the area as ranging from clay to gravel and stated that there was no evidence of any confining layer between the ground and the aquifer. Brian Mauza was called as an expert witness by the Respondent. He was qualified to give expert evidence with respect to technical matters associated with the application of pesticides and dispersal of pesticides and with respect to pest management and water quality. Mr. Mauza carried out a study to determine if there were traces in the neighbouring domestic water supplies of any pesticides that had been applied to the ballast portion of the Spray Application Area under a permit previously issued to the Appellant. In the course of the study Mr. Mauza identified various domestic water sources in the vicinity of the Spray Application Area. There could be other unidentified water users. These domestic water sources were largely between Mile and Mile There are also small fruit farms and pastures in the area. In this study, the domestic water for nine homes in the vicinity of the B.C. Rail line were tested for contaminants. In particular, the study endeavoured to determine if any of the herbicides used in B.C. Rail s spray program from the previous year had found their way into the domestic water. In fact, there were no recordable traces of any of the herbicides in the nine water samplings from the nine sources. There were, however, traces of pentachlorophenol, a wood preservative that among other uses may be used on railway ties. Bruce McFadyen was called as a witness by the Respondent. His most significant evidence was that the Spray Application Area is in a semi-dry region, that October to December are the wet months and that there can be flash flooding. Susan Gimse was also called as a witness by the Respondent. She has resided in the Birken area for 19 years and her family has farmed in the area since She gave evidence that her household and five others use Gimse Spring (which is in the vicinity of the Spray Application Area). Gimse Spring at Mile is for all intents and purposes a community water resource.

5 APPEAL NO. 96/26 Page 5 THE LEGAL CONTEXT This appeal is brought pursuant to section 15 of the provincial Pesticide Control Act. This section reads as follows: 15 (1) An appeal may be filed by any person with the board against the action, decision or order of the administrator or of any other person under this Act. (2) An appeal shall be filed in the time and manner prescribed. (3) The board may require the person appealing to deposit with it an amount of money it considers sufficient to cover the reasonable appeal expenses of the board and the other respondent. (4) On an appeal, the board may make an order it considers appropriate, including, an order for costs and disposal of money deposited under subsection (3). (5) An appeal does not act as a stay unless the board directs otherwise. An application for a permit is made pursuant to section 6 of the Pesticide Control Act which reads as follows: 6 Except as provided in the regulations, a person shall not apply a pesticide to a body of water or an area of land unless (a) the person has applied for, a permit from the administrator to do so and the administrator, on being satisfied that the pesticide application will not cause an unreasonable adverse effect, has granted the permit, and (b) the person applies the pesticide in accordance with the terms of the permit. Adverse Effect is defined in the interpretation section of the Pesticide Control Act as follows: 1. In this Act: adverse effect means an effect that results in damage to humans or the environment; It has been said that the Board on an appeal should engage in a two-step process. Justice Legg in Islands Protection Society v. British Columbia Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 185 (B.C.S.C.) stated as follows: Those decisions indicated that the Board was required to engage in a two-stage inquiry in determining whether the pesticide application would cause an unreasonable adverse effect.

6 APPEAL NO. 96/26 Page 6 The first stage was to inquire whether there was any adverse effect at all. If not, that was the end of the necessary inquiry. The second stage was if the Board decided that an adverse effect existed, then the Board had to undertake a risk-benefit analysis to ascertain whether that adverse effect was reasonable or unreasonable. The Court of Appeal decision in Canadian Earthcare Society v. British Columbia Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 55 (CA) approved the following comments from Justice Lander s judgment below: 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 risk and benefit can the Board determine if the anticipated risk is reasonable or unreasonable. Evidence of silvicultural practices will be relevant to measure the extent of the anticipated benefit. Evidence of alternative 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. The starting point then is to determine whether the Permit Application Pesticides will damage humans or the environment. What kind of evidence can this Panel consider in determining whether or not a pesticide will have an adverse effect? Section 5 of the federal Pest Control Products Act provides as follows: 5. (1) No person shall sell in or import into Canada any control product unless the product (a) has been registered as prescribed; (b) conforms to prescribed standards; and (c) is packaged and labelled as prescribed. Section 27(1) of the Regulations passed under the Pest Control Products Act says that No label shall be used on a control product unless it has been approved by the Minister and, unless the Minister otherwise directs, every label shall show the information required by sections 28 to 38. The information required to be included on the label in these sections include information respecting the nature and degree of hazard inherent in the control product and essential conditions respecting the display, distribution, use limitations and qualifications of persons who may use the control product. It is well established law that the Board can assume that a federally registered pesticide is generally safe. The Court of Appeal in Canadian Earthcare quoted with approval from Mr. Justice Lander s judgment when he said:

7 APPEAL NO. 96/26 Page 7 Common sense dictates that the fact that a federally registered pesticide that has undergone extensive testing must have some probative value. I have concluded that the Board did not commit a jurisdictional error by assuming a federally registered pesticide to be generally safe. Similarly the Board should not re-examine the validity of either the environmental hazard warnings, or the required restrictions contained on the labels for the pesticide. Thus, the Board should not go behind the label of a pesticide which states in effect that there is an environmental hazard if it is directly applied to any body of water or if it contaminates seed, feed and foodstuffs. Notwithstanding the above comments, the Board should not give a carte blanche to the use of every approved pesticide. As was stated by Justice Lander: It is important to bear in mind that the Board did not state that a federally registered pesticide could never cause an unreasonable adverse effect. The Board was willing to hear evidence on toxicity to the extent that the evidence showed that the specific site in question prevented safe application of the pesticide. They further heard 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. Unless the label contains no restrictions or warnings whatsoever, the Board can always consider whether or not in a specific situation there is an adverse effect. It is apparent from the above excerpts from the labels for the Permit Application Pesticides that Garlon 4 and Roundup could if used improperly or in the wrong amounts or in the wrong location cause damage to humans or the environment. The test for adverse effect, however, must be site specific and application specific - it must be shown that at a specific site the application of the herbicide by the applicant will cause damage to the environment. While there may be a presumption that if the pesticide is used in accordance with the label that there will not be an adverse effect, an inquiry must be made into whether or not at the specific site, the particular applicant will be able to so use the pesticide in accordance with the label directions. In determining the site specific adverse effect of a pesticide all types of evidence might be considered including the ability of the applicant to use the pesticide in accordance with label directions. Given the risks that may be involved if the use of the pesticide has an adverse effect, the evidentiary standard required to establish that there is an adverse effect should not be all that high.

8 APPEAL NO. 96/26 Page 8 Findings The label information for the Permit Application Pesticides very clearly advises against allowing either of them to enter a body of water or to be applied to nontarget vegetation. There was no convincing evidence at the hearing that the chemical treatment of brush is invariably safer or more environmentally friendly than the mechanical treatment of brush. Chemical treatment is preferred by the Appellant because it is more effective and hence less expensive. On the other hand, there was no evidence that the use of the Permit Application Pesticides in accordance with label restrictions would have an adverse effect on large parts of the Spray Application Area. In the Panel s opinion the most relevant evidence was a study done by Brian Mauza. In cross-examination the Appellant questioned the rigour of the study although ironically the study was, on balance, more supportive of its case than it was that of the Respondent. The Panel does find that use of the Permit Application Permits would have an adverse effect if used between Mile 114 and Mile 117 (the Birken area). The Panel makes this determination for the following reasons: a) There are a number of households in this area that draw their water from surface sources - including ponds derived from springs and from streams. These private systems do not have safeguards such as purification processes and depend considerably on the pristine quality of the water. They are easily susceptible to contamination. b) There is a concentration of population and small scale agricultural activities in this area. c) The private water systems in this area are often of an ad hoc nature. It would be very difficult to positively identify all of the domestic water users and sources. Having found that there is an adverse effect if the Permit Application Pesticides are used between Mile 114 and Mile 117 the Board must apply a risk-benefit analysis to ascertain whether that adverse effect is reasonable or unreasonable. The Board finds that the adverse effect is unreasonable for the following reasons: a) It is not essential that the Appellant use pesticides to rid the right-ofway of unwelcome vegetation. The Appellant can use a mechanical method as it has obviously done for the previous many years it has been operating this railway. b) The risks to the public in the Birken area far outweigh the cost benefit to the Appellant.

9 APPEAL NO. 96/26 Page 9 With respect to the rest of the right-of-way the Board finds that there will not be an adverse effect (resulting from the use of the Permit Application Pesticides) provided that they are applied in accordance with label instructions and restrictions and in accordance with the other directions contained in this decision. The Panel again emphasizes that the Permit Application Pesticides must not be allowed to enter into a body of water. The appeal, accordingly, is granted in part. B.C. Rail shall be entitled to use the Permit Application Pesticides from Mile 59 to Mile 114 and from Mile 117 to Mile 131 subject to the following restrictions and conditions. a) B.C. Rail shall do a complete inventory of domestic wells and water sources between Mile 110 and Mile 114 and Mile 117 and Mile 131, prior to any spraying taking place. b) B.C. Rail shall post two large, conspicuous signs on each and every road that crosses the B.C. Rail Line advising that it will be doing spraying and that it is doing an inventory of domestic wells and water sources along the B.C. Rail Line. c) The Appellant shall not spray within 50 meters of a domestic water source nor within 30 meters of an identifiable stream or watercourse. d) The permit shall contain all relevant restrictions, conditions and limitations as are required by the labels for the Permit Application Pesticides. These restrictions, conditions and limitations shall be determined by the Respondent. e) The spraying must be done between June 1 and August 31. f) An independent evaluation should be done by a party chosen by the Respondent. David Brown, Panel Chair Environmental Appeal Board May 30, 1997

10 APPEAL NO. 96/26 Page 10 APPEAL NO. 96/26 AMENDMENT In the matter of an appeal under section 15 of the Pesticide Control Act, R.S.B.C. 1996, c BETWEEN: B.C. Rail APPELLANT AND: BEFORE: DATE OF HEARING: PLACE OF HEARING: Deputy Administrator Pesticide Control Act RESPONDENT A Panel of Environmental Appeal Board David Brown, Panel Chair December 2, 1996 and February 27, 1997 Vancouver, BC and Squamish, BC APPEARING: For the Appellant: John Brodie For the Respondent: Bayne Vance On further review of my decision with respect to Permit Application # /98, I have noted an omission. Paragraph f. on page 9 of the decision should be deleted and the following inserted: f. An independent evaluation should be done by a party chosen by the Respondent, and the cost shall be borne by the Appellant. The remainder of the decision is affirmed. David Brown, Panel Chair Environmental Appeal Board June 3, 1997

ENVIRONMENTAL APPEAL BOARD Province of British Columbia

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 105-476-90 and