Province ofBritish Columbia

Ministry ofEnvironment

ENVIRONMENTAL APPEAL BOARD

VictoriaBritish ColumbiaV8V lX5

Appeal No. 82-16(2) PES.

JUDGEMENT

PERMIT NO. 113-5*RES-82/83 (Special Use) issued to TimberlandDevelopnent Co. Ltd. in the name of Mr. J. RcxJney,Divisional Forester for the use of Roundup in the TobaInlet area, Mile 2, Little Toba Mainline (66.4 hectares).

This permit is for a trial use of Roundup for brushcontrol for conifer release purposes, using the hackand squirt method.

APPEAL

The principal issue of this appeal was whether the Administratorof the Pesticide Control Act was correct in deciding that under Section6 of the Pesticide Control Act, the pesticide application authorizedunder this permit will not cause an unreasonable adverse effect whichwill result in damage to man or the environment in the area involved.The specific areas of appeal were as follows:

1. The action will have an unreasonable effect on the environmentin general and specifically on:

a) The watershed and water source III the affected andadjacent areas.

b) Human habitat, health, residences and livestock.

c) Plant and animal life in the affected and adjacent areas.

2. The action was not reasonable in the particular instance, andgiven the nature of the action and the effect sought, will bemore harmful than beneficial to the environrrent.

3. The effect sought can be accomplished by more efficient andless harmful methods.

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Timberland Developnent Co. Ltd. (Cont.)

4. The action, if implemented, will rontravene guidelines establishedby the Pesticide Control Branch, relating to the application ofthe subject pesticide and without limitation to such applicationin the vicinity to human habitation and watersheds.

5. The conditions of the permit were alleged to be incanplete.

6. The lack of baseline studies on fauna and water quality.

HEARINGIl\JFORMATION

The hearing was held on July 28, 1982 at the Beach Gardens Resort,7074 Westminster Street, Pawell River, B.C. before a Panel of the EnvironrrentalAppeal Board.

The Panel members in attendance were:

Mr. Andrew J. Lynch, B.Sc., H.P.H.Dr. B. Morrison, Ph.DDr. C. Walden, Ph.D

Panel Chainnan- Member- Member

Hon. E.C. Hughes, Q.C.Ms. Arme Dyke

- Legal Advisor to the Panel- Official Recorder

The hearing was held concurrently with the hearing into Permit No.194-4-82/83 (Appeal No. 83-16 PES.) .

REGISTEREDAPPELLANI'S

1. Powell River Regional Board

Mr. J. Ross McClellan - Legal CounselMr. Williarn Ireland - Witness

2. Lund community Club

Ms. Linda ChaikelHr. M. Conway-BrawnMr. R. Richards

Spokesperson- Witness- Witness

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-3-Tirnberland Developnent Co. Ltd. (Cont.)

3 . Mrs. Denise Lawson, Powel.l. River, B.C.

Mrs. K. Wilcox - WitnessMr. M. Rossander - WitnessMr. J. Whent - Witness

LIST OF EXHIBITS

"A" Map of T.F .L. 10

"B" Presentation of Mr. Ireland.

"C" Submission to the Consultative Committee on IBT by MichaelConway-Brc::wn.

"D" "WhyWe are Losing the Battle Against Cancer" by John J. Moelaert

"E" Presentation of Mr. R. Beaumont.

"F" Letter of July 9, 1982 from ~Jr. J .R. McClellan to TirnberlandDevelopnent Co. Ltd.

"G" Pennit No. 113-4-81/82

SUMMARYOF 'TIlEPCWELLRIVERREGIONALBOARD'SPRESENTATION(In Part)

1I1r. Ireland

Sane of Mr. Ireland's carnrrents were as fo.l Lcws e

1. He attended the Mirri.stiry of Forests office in Powell River to viewthe pennits and naps. Fran the naps posted, he could not identifythe location of the spray area. It took approximately two hourswith the assistance of Ministry of Forests staff to identify thespray location and its relationship to his property. Duringcross-examination, Mr. Ireland indicated that this, althoughinconvenient~did not prejudice his position in this appeal.

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-4-Tirnberland Develq::mentCo. Ltd. (Cont.)

2. Mr. Ireland, who stated that he has ownedproperty in the Toba area,gave a detailed physical description of Toba Inlet, the valley, theBig and Little Toba Rivers and the fisheries and wildlife habitat.

3. Mr. Ireland said that up to the present time, the Toba valley hadhad very few ecological problems because it is a natural wilderness,which is self-sustaining due to the lack of humaninvolvement. Heexpressed concern regarding the effect of the spray program on thisecological balance.

Prior to surrmation,Hr. McClellan requested that the appeal be allowedbecause:

1. The pennit holder had failed to ccmply with a mandatory condition.precedent contained in each of the permits under appeal. He hadreference to the condition which provides that "a copy of thispermit and maps of the treatment area be posted continuously in apublic access area of the Lund District office of the Ministry ofForests at Powell River and the Toba Inlet logging campbetweenMay6, 1982 and October 1, 1983".

2. There existed a breach of an accepted principle of the laws of equityand natural justice to the effect that a person whose interest is ormay be affected by the decision of a judicial or quasi-judicialtribunal must be given adequate notice of the case to be made againstit.

The decision of the Panel with respect to these two matters wasreserved in order to allow counsel to present written argument. This he didin a submission dated the 9th day of August 1982.

In his surmnation, Mr. McClellan stated that there is an absence of dataon the effects of the program on fish, bears, humanpopulation and riverquality.

SUMMARYOFTHELUNDCOMMUNITYCillB'S PRESENTATION(In Part)

Ms. L. Chaikel

In her introductory cornrrents, Ms. Chaikel stated that the Lund CommunityClub did not wish to see the spray area used as an experimental plot. She

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TirnberlandDevelopnentCo. Ltd. (Cont.)

questioned the ecological safety of Poundupand its effects on the fisheries,wildlife, vegetation and inhabitants of the area.

}tr. Conway-Brown

Someof Mr. Conway-Bro.vn's corrmentswere as follows:

1. Manyof the tests on which registration of Roundupwas based wereperformedby the IBTLaboratories and found to be without correctdocumentation. There is currently insufficient data to support; anapplication for registration for forestry use.

2. Roundupis not currently registered for forestry use and hequestioned the need for the numberof efficacy studies currentlybeing conducted in B.C. at public expense.

3. Mr. Conway-Brawnexpressed concern for the safety of the workersusing the higher concentrations in the hack and squirt rrethod.

4. Mr. Conway-Browndiscussed his concerns of the genetic effects ofexposure to herbicides and the concept of "genetic load". Hestated that the minimumt ime-f'rarreto measure the effects of mutagenson humanswas 100 years and that any error in application should beon the side of caution.

5. Hemadethe following recanrrendations to improvethe infonnationexchangebetween the EnvironmentalAppealBoard and the appellants:

a) Provision of funds to appellants to photocopyreferencematerial for submission to the Board.

b) Mapsto proper scale be madeavailable with the pennit tomakeit easier to locate the subject spray area.

c) Infonnation held by Governmenton the toxicological aspectsof herbicides be madeavailable to the public.

d) Elimination of the $25.00 fee for appeals to the Board.

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TimberlandDevelopmentCo. Ltd. (Cont.)

Mr. R. Richards

Mr. Richards expressed his concern about the interference of therecreational use of the forests by the application of Roundupto the subjectsite. Healso stated that in his opinion, manual release was a more suitablerrethod.

SUMMARYOFMRS.D. LAWSON'SPRESENTATION(In Part)

Mrs. D. Lawson

Sorreof Mrs. Lawson's conmentswere as follows:

1. The order of the Panel requested is:

a) NoRounduptrials at this specific site.

b) NoRounduptrials necessary for B.C. as a whole.

c) Baseline studies of all sites must be required prior topermit and available for public inspection.

d) Pesticide Control Branch inspections of sites to includelocal governrrentrepresentatives in those areas where localgovernmentshave no policy regarding herbicide and pesticideapplication.

e) In those areas where the local governmenthas a stated policyregarding herbicide and pesticide use, that policy will berespected and abided by both the Pesticide Control Branchand Forestry Companiesand Ministries operating within theboundsof such Regional District.

f) Manualrelease and related research be carried out anddocurrentedprior to resorting to chemical application.

2. "WhileI scramble for the cost of an appeal ($25.00), the permitholder has his application processed free by the Ministry at thetax payers expense."

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-7-Timl:erlandDeveloprrentCo. Ltd. (Cont.)

3. If "undueadverse effects" is to be addressed, this cannot properlybe accomplishedwithout the services of a toxicological expert tohelp the Branchand Boardbetter understand the implications of theuse of a herbicide.

4. Thedecisions of the EnvironrrentalAppealBoardare based on politicalconsiderations with little consideration of the environment. I wasinformedlast weekby a senior memberof the Ministry of Environmentthat the Boardroutinely will not set aside a permit; instead theywill amenda permit to cause least offence. The staff memberinformedIre that the Boardwill not be setting aside the permit on anotherrecent hearing but will amendit. It seemssanething maynot be quiteright if a staff rrernbercan tell me an AppealBoardwill be upholdinga permit prior to the Boardmakingits decision known.

5. If there has been significant advance in the area of long-rangebiocide effects, it is the expression of the realm of the unknown,our ignorance of the subject has broadenedand deepened.

6. In the official notification of the granting of the permit in thelocal press, there was no mentionmadethat the permit was open toappeal.

7. There is no provision for warning signs to be posted·at the site.

8. ThePowell River Regional District does not encouragethe use ofherbicide within its boundaries,and in the settlement plan states"that the Boarddoes not favour the use of pesticides and herbicideson public or private lands within the planning area, and methodsofmanualcontrol of nuisance vegetation and pests shall be encouraged".

9. There will be research carried out on hawwell Roundupcan dispatchnuisance alder and maplebut there are no plans to documentanyother data.

10. She.suggested that inasmuchas this is a herbicide of unknownetiology that it wouldbe appropriate that baseline studies of thefauna and flora should be required.

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-8-Timberland DevelopmentCo. Ltd. (Cont.)

11. Authorities who determine whether Rounqupshall be registered ornot have been interested only in LCSOfigures. "'1hile this approachmay tell us a good deal, the difficulty is that natural conditionsare muchmore complex than conditions in a Labor-atory or in a jarof water.

12. The area to be treated is beside the Little Toba River and issui table for spawning; chinook, chumand coho are abundant throughoutthe system. Perhaps the Toba River system needs the alder toenrich the numberof animal and insect species there and also tofeed the rearing fry.

13. Forestry has recommended2,4-D for eradication of alder, why anotherbiocide?

14. This Board is a fraud - perhaps it is the Board and the PesticideControl Branch that needs investigation.

In cross-examination, Mrs , Lawsonrefused to reveal the source ofinformation of an alleged statement by a staff memberthat revealed the contentsof a previous Board decision, prior to its release to the public. She alsostated that in her opinion, "the Board membersmay not be dishonest, but wouldappear to be part of a fraudulent system which seeks to facilitate the use ofherbicides; and the terms of reference for the Board are set up in such a waythat you cannot make a just decision".

In sumnation, Mrs. Lawsonstated that we have time to change our policyon herbicides. Current·B.C. policy states that a biocide is safe and willcause no undue adverse effect to manor his environment when used accordingto directions and the terms of the penuit - IDeM! - unless this Board upholdsthe appeal against Roundupuse in the Toba River area.

Mrs. K. Wilcox

Mrs. Wilcox stated that she has observed roadsides, burned ground fromchemical clearing, a large orchard grotesque with twisted limbs from aerialspraying and every year there are fewer birds and wild animals due at leastin part to the use of chemicals. She is concerned about the wide-spread useof chemicals with the inevitable end of the wonders of nature. She stated

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TimberlandDevelopmentCo. Ltd. (Cont.)

that she was outraged that a resident must pay $25.00 for the right to appeala perrni, t he feels is an outrage to the environment. She recorrmendedthatpermits be issued only after a public hearing and that applicants pay a feein an adequate amountto pay all hearing expenses.

Mr. J. Whent

Mr. Whent, a Director of the PCMTellRiver Regional Board, testified thatPowell River Regional District does have a bylaw as stated by Mrs. Lawson.However,the bylawdoes not cover the subject area of the application,but aplan for the northern area is being prepared and currently stands at secondreading. It w:mldalso not cover the subject area. Mr. Whentindicated thatthe Regional District does not have the authority under the Municipal Act toplan or control the use of forest reserve lands.

Mr. Whentexpressed concern about the absence of infonration by theper.mit holder on the safety of herbicides and the reasons for a researchpermit and that all the Regional Board can really deal with are the objections.

Mr. M. Rossander

Mr. Rossander submitted a publication entitled "WhyWe Are IDsing TheBattle Against Cancer" to the Panel (Exhibit "D"). Someof Mr. Rossander'scorrmentswere as fo.l.Lcws;

1. This issue should not even be under consideration as the governmentshould not permit the use of a chemical whose irrmediate or long-ter.meffects are unknown,because there are other alternatives.

2. As an economymeasure, the cost of appeal hearing, surveillance,issuance of permits and inconvenience to the public could be appliedto manual release.

3. Manualrelease has the edge by far environmentally, econanically anddemocratically.

SUMMARYOFTHEPERMITHOLDER'SPRESENTATION(In Part)

The follCMTingpeople appeared as representatives or witnesses for thepermit holder:

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Tirnberland Development Co. Ltd. (Cant.)

Mr. R. Beaumont, R.P.F. Staff ForesterWeldwoodof Canada Limited

Mr. J. Rodney - Project SupervisorWeldwoodof Canada Limited

Mr. Beaumontacted as the spokesman for the permi,t holder andMr. Rodneyacted as his technical assistant.

Mr. Beaumont

Someof Mr. Beaumont's conments were as follows:

1. Weldwoodis the Licensee and Manager of Tree Farm Licence 10 andhas a contractural carnmittment to grow commercially valuable timberon that land in perpetuity.

2. It is imperative that logged areas are brought into production assoon as practicable and the young stands tended until they are oldenough to ccmpete with the faster growing brush and weed species,including alder and maple.

3. Control of those presently low-value deciduous species is criticalto the survival of many young coniferous stands, and is essentialto maintain the long-term timber productivity and econcmic viabilityof the T.F.L.

4. The coniferous stand is completely overtrapped by a stand of broad-leaf maple and alder, approximately 27 years old, the major componentbeing maple, which sprouts from the roots very quickly and prolificallyif the tree is felled.

5. The objective of the field trial is to monitor effectiveness of theRoundupinjection by comparing the observable rate and amount ofkill and the amount of resprouting within the treated area to thatin a control area where the sterns will be frilled or girdled only,with no herbicide injection.

6. Plots established within both areas will be monitored from the timeof treatment until October 1, and from the following April to August.

7. The resulting info:rnation will be used in making decisions regardingpossible future applications.

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Tirnberland Develop:rrent Co. Ltd. (Cont.)

8. The hack and squirt method of application is labor-intensive andvery target~specific treat:rrent.

9. Roundupwill be applied as a 75%solution in water (1 ml. per notch)with a maximumof 76 liters used.

la. N::> sterns will be treated or herbicides allowed within la meters ofrivers, streams or swamps. In the treat:rrent area adj acent to theLittle Toba River, no application will be made below the top of theri verbank, most of which is wider than la meters.

11. The careful and responsible use of the herbicides approved in thetarget-specific manner described ensures a minimal risk to applicators,Toba Valley residents, flora, fauna and the environment.

In cross-examination some of Mr. Beaumont's commentswere as follows:

1. He received but did not respond to a letter of July 9, 1982, toT.irnberland Developnent Co. Ltd. from Mr. J .R. McClellan (Exhibit "F").

2. Timberland does not perfonn water rnonitoring after an application ofherbicide.

3. The B.C. Forests Service will pay the direct costs of the applicationestirna.ted at $700./hectare contractual costs and $200./hectare forherbicide. Manual release would destroy the conifer stand as thetrees are la - 12 :rreters high.

4. He has seen only one small test on the efficacy of Roundup onmaple.

5. Weldwoodwill des.iqn and assess the study. There will be 2 - 3hectares in the control area.

6. No stream rnonitoring is undertaken after hack and squirt applications.

DECISION

The Panel of the Errvi.ronrrent.al.Appeal Board has consic'lered all the evidencesubmitted to it in the appeal hearing on Pesticide Control permit No.

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Ti.rnbE::rlandDevelopmentCo. Ltd. (Cont.)

113-5*RES-82/83 issued by the Administrator of the Pesticide Control Act toT~rland DevelopmentCo. Ltd., and has decided the following:

1. Warningsigns shall be posted in praninent places whenthepesticide application COIll'Cences.

2. Thepennit holder must submit an acceptable experirrental designfor the research study to the Panel of the EnvircinmentalAppealBoard forapproval, prior to application of the pesticide. A copy of thefinal report is to be forwardedto the Administrator, PesticideControl Act and the PaneI of the Ehviroi1IrentalAppealBoard.

3. The Panel does not assent to the position taken by the PowellRiver Regional Board that the pennit holder failed to complywitha mandatorycondition precedent contained in the pennit and thata breach of an accepted principle of the laws of equity and naturaljustice occurred.

The Panel also finds that this specific application of the pesticide willnot cause an unreasonable adverse effect to manand/or the environment, andon this basis, subject to condition (2) above, the appeals are hereby dismissed.

In comingto this decision, the Panel notes the following:

The Panel accepts the evidence that Roundup,like most other chemicals,is potentially a toxic substance and whenmisusedmayhave acute and chronicadverse effects; therefore, humanexposure to the chemical should be minimizedand every effort should be madeto apply it as sparingly and discriminately aspossible. With this in mind, the Panel does consider the hack and squirtnethod of application, as proposed for this project, one of the most site-specific mefhcdsof chemical usage which at the sane tine should keepcontamination of the environrrent to an absolute miriimnn.

With this rrethodof application and the stipulation in the pennit oflO-rreter buffer zones for the protection of water bodies, the possibility ofsignificant contamination of streams wouldappear to be virtually non-existent.

Included in this Judgementis a recent review on Roundup(Appendix"A").

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-l3-TirrberlandDevelopmentCo. Ltd. (Cont.)

With respect to condition (2), reqm.nng the permit holder to submit anacceptable experimental design to the Panel for approval, the Panel notesthat Roundupis not currently registered for forestry use. ThePanel desiresthat experimental trials whichare approved be conductedso as to increasethe information base as efficiently as possible.

ThePanel wouldexpect an experim2ntal design to include the followingelements:

1. Objective of the research.

2. Reasonswhythe research is necessary.

3. Reviewof the literature on the subject research.

4. Detailed design of the project, including the methodof datacollection and analysis.

5. Description of environmentalmonitoring to be undertaken.

6. Planneddistribution of the report and recorrmendations.

Duringthe simultaneoushearing on this Permit and Permit No. 194-4-82/83,sameof the appellants madedisparaging and threatening remarksregarding theEnvironmentalAppealBoard. This Panelis .neither impressednor influenced bythese remarks.

In regard to the two procedural points raised by the PowellRiverRegionalBoard, the Panel's response is as follows:

1. It is not suggested that there was no cx:mpliancewith the statedmandatorycondition precedent. Rather, the submissionis, as weunderstand it, that there was not an adequate canpliance so as toacquaint interested parties with the precise location of the permitareas. This the appellant sought to showthrough the evidence oftwowitnesses. Neither witness, according to his evidence, was inanywayprejudiced in presenting his objections to the Panel. Theymadethis quite clear. That is to say, they both appreciated at thetime of appeal the areas involved. Indeed, the evidence is thatMinistry of Forests' officials at the Ministry's posting location

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were most helpful in precisely identifying the particular areason the posted maps. To suggest on the evidence that there wasan inadequate compliance with what counsel calls a conditionprecedent amounting to non-compliance, is speculative at best. Theevidence allows no conclusion other than that there was the compliancecalled for by the penni t.

2. The soundness of the principle cited by counsel requiring adequatenotification has been made clear. The Panel acknowledges therequirerrents of the law as stated in the cases furnished. Counselhas applied that law to the facts of this case by saying, "•.•wherematerial evidence (in this instance the location of the applicationareas) is denied an appellant or a party to a quasi-judicial hearing,the hearing itself is invalid". On the evidence presented, it is thePanel's opinion that the denial relied on by counsel does not exist.There is no suggestion of a breach of a statutory requirement andthe evidence discloses no prejudice to anyone on the basis of thenecessity of affording the opportunity to make a meaningful appealand to make the hearing process a meaningful one. In the Panel'sopinion, the indicated opportunity was present and the hearing processfrom the standpoint of all participants, including those who gaveevidence, was clearly a meaningful one although, as is the case inall contentious hearings, appeals included, the result may not bepleasing to all. That part however, does not detract from the hearingprocess being a meaningful one.

Accordingly, for the reasons given, the Panel does not assent tothe position of the appellant on the two matters just reviewed.

A.J. LynchPanel ChainnanEnvironmental Appeal Board

October 20, 1982