Appeal tb. 82-15 PES. JUDGEMENT APPEAL

Province ofBritish Columbia

Ministry ofEnvironment

ENVIRONMENTAL APPEAL BOARDVictoriaBritish ColumbiaV8V 1X5

Appeal tb. 82-15 PES.

JUDGEMENT

PERMIT NO. 104-335-82/83 issued to the British Columbia Minister ofForests is for an application of not more than 2.5 kg ofa.i. per hectare of For-Ester "E.C. (containing 2,4-D)in the Lund area, Okeover Inlet (20 hectares). Thepermit is for brush control for conifer release p~sesusing aerial spray by helicopter.

APPEAL

The appeal was taken against the application of For-Ester E.C. onthe basis that it would possibly cause an unreasonable adverse effectto man and/or the enviro:nrrent. The specific grounds of appeal identifiedby the appellants are:

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

a) The water shed and water source in the affected andadjacent areas, including oyster and salrron spawningareas in Okeover inlet.

b) Himan habitat, health, residences and livestock.c) Plant and animal life in the affected and adjacent areas.

2. The action is not reasonable in the particular instance, andgiven the nature of the action and effect sought, will beharmfUl than beneficial to the environment.

3. The effect sought (namely defoliation and the resultant deathof certain broad leaf species of plant) can be accomplished byrrore efficient and less hannful methcrls.

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. British Columbia Minister of Forests (Cont.)

4. The action, if implemented, will contravene guidelines establishedby the Branch relating to the application of the subject pesticides,and without limitation, to such application in the vicinity ofhuman habitation and watersheds.

HEARINGINFORMATION

The hearing was held on July 27 r 1982 by a Panel of the Envi.rorarerrta.lAppeal Board in the Beach Gardens Resort Hotel, Powell River, B.C.

The members of the Panel in attendance were:

Mr. A.J. Lynch, B.Sc., M.P.H.Dr. B. Morrison, Ph. D.Dr. C. Walden, Ph. D.

Panel Chainnan- Member- Member

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

- Legal Advisor to the Board- Official Recorder

REGISTEREDAPPELLANTS

1. Powell River Regional Board represented by:

Mr. J .R. McClellanMr. K. BinoMr. J. TerrellMr. M. McGeeMr. J. Keays

- Legal Counsel- Witness- Witness- Witness- Witness

2. Lund Business Association

Mr. J .R. McClellan - spokesrranMr. R. Pence - Witness

3. Lund Corrrnunity Club

Ms. L. ChaikelIvIr. M. Conway-Brown

- Spokesman- Witness

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. British Columbia Minister of Forests (Cont.)

Mr. F. Cameron - WitnessMs. R. Uhlman - WitnessMr. S. Ervington - WitnessMs. G. Goudraan - WitnessMs. J. Lovewell - WitnessMs. D. Lawson - WitnessMs. D. MacFronton - Witness

LIST OF EXHIBITS

"A" - Map of Okeover North

"B" - Map of Okeover South

"C" List of persons indicating willingness to work on a manualrelease program.

"D" - Extract from "Ecological Effects of Pesticides on Non-TargetSpecies" published from Executive Office of the President, Officeof Science and Technology, June 1971.

"E" Extract fron "Phenoxy Herbicides - Their Effects on EnvironrrentalQuality" NRCCPublication No. 16075.

"F" Submission by R. Sorenson, Ministry of Forests.

"G" Cost ccmparison of manual release vs aerial herbicide applicationsubmitted by the Ministry of Forests.

"H" Submission by Mrs. D. Lawson.

SillMARYOF 'lliE PCWELLRIVERREGIONALBOARDPRESENTATION(In part)

Mr. McClellan

In his opening statement Mr. McClellan indicated that the Powell RiverRegional Board had more narrowly defined their objections to the permit thanthose previously given and were:

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1. Proximity of the aerial application to watersheds, specificallyPlumner Creek and a rnariculture site on Okeover Inlet.

2. Proximity to human habitation.

3. Alternative methods available to accomplish the desired results ofthe Ministry of Forests.

Some of Mr. McClellan' s comnents in surrrnationwere as follows:

1. There 1S no evidence that the firs are threatened by the alders.

2. There is no guarantee that the status quo regarding the water supplyfor persons residing on the Indian Reservation will be maintained.

3. A one or two season advantage to the firs can be accomplished bymanual release.

4. The area is not isolated, and is adjacent to a unique ecologicalhabitat and human habitation.

5. The fonner manual release project performed by Mr. Terrell workedin terms of control of alders.

6. The Administrator was not given the information that persons residedadj acent to the area or the location of the water line and this is thebasis of an error. As a result, the permit is rendered invalid atlaw and without a legal foundation under Section 6 of the Act.

7. The evidence as a whole is of a nature that should lead the Boardto deny the application.

8. The cost analyses entered by ~rr. Sorenson are not presented on acomparable basis.

Mr. BinoUsing Exhibit "B", Mr. Bino described the topography of the subject

area, location of dwellings, water lines, streams and access. Some of

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British OOluffibiaMinister of Forests (Cont.)

Mr. Bino's commentswere as follows:

1. The road is the northern end of Southview Road and goes throughthe site to the inlet.

2. PlumrnerCreek is a salmon spawning stream and is approximately200 meters from the site at its closest point; it travels parallelto the site for 800 - 900 meters.

3. The prevailing wind is from the north west in the summerand fromthe south east in the winter (direction of the head of PlummerCreek) .

Mr. Keays

Someof the corrmentsmade by Mr. Keays were as follows:

1. He has eXPerience in the identification of invertebrates and doesthis on a contract basis.

2. He felt that a manual release program would be a better alternativeand although not simple, was feasible.

3. In respect to intertidal bivalves the LC50is low. He questionedwhy the rrore toxic ester was being used instead of the amine form,

4. He would be hard pressed to derronstrate that this applicationwould be unsafe but the cumulative effect of many applications willbe unsafe.

5. The toxicity value of 2, 4-D in this particular case is not highenough to cause immediate death of all shellfish in Okeover Arm.

6. He is concerned about the potential buildup of 2, 4-D in the sedirrentsof Okeover Inlet.

7. There is conflicting evidence on whether 2, 4-D persists in theenvironment, and it would be difficult to predict the concentrationof 2,4-D in PlurnmerCreek or Okeover Inlet but indicated one studyreported concentrations of 58.8 ppn. in sediment samples in a

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reservoir 10 months after.treatment.

Mr. R. Terrell

Mr. Terrell described the location of oyster leases and plants inExhibit "B". Someof his other conmentswere as follCMs:

1. Clamdigging is conducted at the head of Okeover Inlet.

2. In 1980 he contracted with the Ministry of Forest to manual release16 hectares at a cost of $350./hectare. The present re-sproutingis not significant.

3. In viewing the subject area, he considered ita sui table site fora manual release program if perfonned during the sumuer.

Mr. Mc£ee

Mr. McGeestated that he and five other people live in a cabin designatedas #6 on Exhibit "B". The family obtains their water supply via a plasticpipe crossing PlumrrerCreek to a stream between SouthviewRoadand PlurrmerCreek. Mr. McGeestated that his family uses the stream for salmon fishing.

SUMMARYOFTHELUNDBUSINESSASSOCIATIONREPRESENTATION(In Part)

Mr. Pence

Someof the corrmentsmadeby Mr. Pence were as follows:

1. There are two fish processing plants in Lund/Okeoverand both relyheavily on products from Okeover Inlet.

2. Themariculture industry in B.C. is in an embryonic state and hasa good potential to expand both in terms of export of products andemployrrent.

3. Amoratorium should be placed on spraying until industry can beassured that there is no risk and a study should be commencedto

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British ColumbiaMinister of Forests (Cont.)

assess the risk.

SUMMARYOFTHEIDNDCOMMUNITYCLUB PRESENTATION(In part)

Ms. Chaikel

Sane of Ms. Chaikel' s comnents were as follows:

1. A very superficial investigation of the area was taken by theMinistry of Forests prior to the spray application.

2. The appeal process is highly suspicious as no per:mit has ever beenrevoked.

3. There is an al temati ve to spraying. The economyis depressedand manual release would create jobs.

4. It seems illogical that information meetings are not held beforethe permit is granted and that appellants must pay $25.00 to appeal.

5. Forestry was not aware prior to applying for the per:mit that therewas a family living so close to the spray site.

Sane of Ms. Chaikel' s ccmnents in surrmat.i.onwere as follows:

1. The toxicity, carcinogenicity and poterrt.ia'l vqenet.ic dangers of2,4-D have been established.

2. The residents of the area feel that ,herbicide applications andct.hepotential damages are risks that should not and cannot be ignored.

3. Aerial spraying is extrerrely chancy.

4. There are other alternatives for both spraying and the Ministry ofForesti plans for the area.

5. Nothing disappears and goes nowhere;' there are too many risks tothe spraying.

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6. Hackand squirt has a high percentage of re-sprouting and thereforeis not cost effective.

Mr. cameron

Mr. Carneronstated that OkeoverInlet is a unique bodyof water forrnariculture as it has 8 algae blocmsper year. Hewas concerned that thedestruction of the alder and possible subsequent fertilization wouldchangethe arrount;of nutrient and hence the water quality of OkeoverInlet and itseffect on the mariculture industry. He stated that he wasmore concernedabout the precedent of spraying forest areas than this particular application.

Mr. Carneronsaid that forestry use wouldyield $60.00 per acre per yearor $4,720.00per acre over the growingcycle, whereas the oyster industrycould produce from20,000 to 80,000 lb. of oyster meat per water-acre peryear. On45water acres in OkeoverInlet/this wouldyield $1,800,000.00per yearand wouldbe the sameamount;as forestry wouldyield on 30,000 acres over a80-year cycle.

Ms.Uhlman

Ms. Uhlmaniutilizing a large numberof documentsand papers, expressedconcerns about the carcinogenicity of aerial drift, andwater and soilcontamination of 2,4-D. Saneof her canmentswere as follows:

1. Thecarcinogenic potential of 2,4-Dis currently a serious question,with knowledgeablescientists having different views.

2. Recent research indicates that the potential of contamination of2,4-D by dioxins does exist.

3. The current data base for 2,4-D is inadequate, especially ~n areassuch as carcinogenisis and neurotoxicity.

4. The claim that 2,4-Dbreaks downquickly is not supported by theevidence.

5. Airborne 2,4-Dhas been detected for as far awayas 200wiles fromthe spray site.

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6. As muchas 55%to 75%of the aerial spray mayleave the target area.

7. 2,4-D residues were found on lis of the soil sampleswhere 2,4-Dwas applied on agricultural crops.

8. Concernwas expressed about the IBTtests and secrecy of infonnationon testing by the manufacturer.

r-tr. Ervington

Sate of Mr. Ervington' s camnentswere as follows:

1. With regard to the spray area, 170 - 200people live within a 2 mileradius, 27 people within a 1 mile radius, 8 people within a ~ mileradius and 6 people within 300meters of the site.

2. 2,4-Dand its breakdownproduct 2,4 dichloro phenol whenfed to ratsin dosage of 1 mg/kg/dayof each chemical increased the fetalhemorrhagesand herrorrhagesof chest and abdominalcavity.

3. Proper concern is not given to the cost effectiveness of treatingthe victtms of 2,4-D spraying.

4. The long range effects of 2,4-Dand 2,4 dichloro phenol are notknown.

Ms.MacFronton

Ms.MacFrontonstated that the effects of pollution are docurrentedafterthe fact and after damagehas been done. She said that she feels verystrongly that the tide should start to change awayfrom the use of chemicalfertilizers and herbicides. She stated that this matter should be decidedby the people living in the area and not by an AppealBoard.

Ms. Lawson

Someof Ms. Lawson's corrrrentswere as follcws:

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1. Thepermit has been granted on an assumptionthat the biocide issafe and the AppealBoardhas been dispatched to PoweLl, River tohear appeals against an assumption.

2. TheOkeoverarea is very popular with younqpersons who, on theday of the aerial spraying maywell be picnicking, boating, horseriding and enjoying themselves, oblivious of what is going on upthe hill. Scientists have found that even under ideal conditions,only about 50%of aerial sprays released at tree-top level reachthe target area.

3. Ahigh incidence of crashes amongcrop dusters, herbicide applicatorsetc. has been attributed to mild cases of pesticide poisoning.Althoughnot madeseriously ill, the pilot's reflexes are dulledso that he cannot follow the precise patterns called for in aerialspraying.

4. Whyare personnel involved in spray application not screened forpossible detrimental effects? Standard hospital testing could beused to determineblood levels, urine levels, sputumtests, etc.

5. TheOkeoverarea is prime for mariculture andmust be preservedfor this reason.

6. Becausea perrnit holder is indulged and permi,tted to use the leasttime consumi.nq and costly method, in his estimation of disposing ofa weedwith herbicides, the end result is that time is running outfor sorrespecies or life form in the systemand the ultimate cost isdeath.

7. TheFish andWildlife Branchwasquite concernedthat the aerialapplication of 2,4-Dwoulddestroy browse.

8. TheBoardcannot determinewhetherno undueadverse effect wouldresult fran using 2,4-Din the area so they must rule on the sideof safety.

9. OkeoverInlet area must be established as a recognized "HerbicideFree" zone immediately.

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British ColurribiaMinister of Forests (Cont.)

10. Thepossibility of doing nothing at all by wayof treatment tothe area in question must be examined,not even manualrelease.

Ms. Lovewell

Ms. Lovewellexpressed concern about the long term effects of the sprayprogram. She stated it is wrongto spray whenwe do not knowthat it issafe.

She indicated that the people in the area should have the say and notjust people from the outside, and whenthere is an alternative that is safe,whynot use it?

Hr. Conway-Brown

Someof Mr. Conway-Brown's corrmentswere as follows:

1. His main concern is not the acute exposure but the long range geneticeffects.

2.· There have been only three studies on the carcinogenici ty of 2,4-Dand they are not adequate by today's standards.

3. In regard to teratogenicity of 6 studies, there has only .been 1study that indicates 2,4-D does not cause birth defects, and itsconclusions are questionable.

4. There is a synergistic effect between2,4-Dand its breakdownproduct 2,4 - dichloro phenol on turnor incidence.

5. A large data gap exists on the toxicology of 2,4-D and relatedcompounds,

6. The iso-octyl ester formulation of 2, 4-Dhas ronsistently had thehighest level of dioxin contamination. The toxicity of dioxinsassociated with 2,4-Dcan be traced to one unpublished reportperformedby the DowChemicalCompany.

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7. If a forest fire occurred in an area sprayed with 2,4-D,it couldbe hazardous to fire fighters due to possible forwation of dioxins.

8. The subject area is relatively flat, easy terrain in which toperform a manual release program.

9. Hackand squirt methodsworkwell on small trees but poorly onlarger alder stems. In a local survey of 210 cuts, 63%were dead,29%resprouted and 10%had not been treated. The 63%included allthe small stems and if included there wouldbe about 60%resprouting.In another survey of hack and squirt performed last year, about 80%resprouted.

10. In aD. S. study, more than ~ of the aerial treatments had to berepeated.

11. The costs of aerial spray application are the sameas manualrelease.

12. In a D.S. study, manualrelease was found to be effective if:

a) performedon alders 5 - 10 years old.

b) the operation is begunwhentrees first leaf out (tlinewindownot known).

c) stumpsare cut as low as possible.

13. TheAppealPoard has the imageof a rubber stamp approach and willcontinue to have this imageuntil it is shownto be more responsiveto peoples concerns.

Ms. Goudraan

Ms. Goudraanexpressed concern about the lack of information andavailability of anyoneto take responsibility for the safety of the program.She felt there should be a governmentbody to present information on thesafeguards of pesticides in order to counter the information from chemicalcompanies.

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British CbluffibiaMinister of Forests (Cont.)

SUMMARY OF THE PERMIT HOIDER IS PRESENTATION (In Part)

Mr. R. Sorenson - Resource Officer SilvicultureMinistry of ForestsPowell River, B.C.

Some of Mr. Sorenson's comments were as follows:

1. Alder control is required in order to prevent suppression andmortality to the conifers. The plantation is well established,showing a 90% survival rate after the first growing season, whichis now jeopardized by encroaching alders.

2. The area was harvested between 1976 and 1978 and treated mechan-ically to remove stumps in order to isolate an infection of rootrot.

3. In 1979, the area was planted with 27,000 seedlings and in 1980,9.5 hectares were brushed manually in November/December.

4. In 1981, an assessment of this treatment showed that virtually allthe alder had coppiced, had grown approximately one meter 1 and had beentransformed from a tree to a multi-stemned bush, taking up morespace than the original stem.

5. In May 1982, a small area was again brushed manually in order todetermine if cutting at this time of year would provide a control.A recent inspection of this area has shown that rrost. of the alderhad coppiced. As a result, the Ministry does not feel that manualbrushing is an effective option on this site.

6. The option of hack and squirt of 2,4-D was rejected because thealder in the stand is too small in diameter.

7. Past experience has shown herbicides to be the most cost-effectivemethod of controlling alder. The herbicide 2,4-D can safely beapplied when the conditions on the product label and pe:rmit arefollowed.

8. The Ministry estimates that for this site, ~ual release wouldcost $380.00 per hectare and aerial herbicide application $150.00to $175./hectare.

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9 . Special test paper collectors are available to measure the driftfrom an aerial spray operation.

In cross-examination Mr. Sorenson indicated that:

1. He was unaware that the cabin was inhabited by the McGees and also ofthe location of the water source.

2. Large orifice and low pressure spray equipnent will be used toreduce drift.

3. He is unaware of manual brushing being effective or studies beingconducted by the Ministry of Forests.

4. fure chemi.ca.I wou.Ld be used in the hack and squirt rrethod thanaerial spray because of the large number of small trees and thedifficulty with spray equipment in applying a small amount ofherbicide to the stem.

On the evening of July 27, 1982, the Board, accompanied by Mr. R. Sorensonrepresenting the pennit holder and Mr. K. Bino representing the appellantsmade a visit to the site.

In his surrmation, Mr. Sorenson stated that the treatment is being carriedout in order to maintain a plantation, using a Federally registered chemicaland properly registered and licensed personnel. Alternative methods have notbeen found to be effective or successful on that site. Following the sitevisit, the McGee's water line was found and Mr. Sorenson offered to deletethe triangular area between the junction of the two roads and the northernend of the site area.

DECISION

The Panel of the Environmental Appeal Board has considered all of the evidencesubmitted to it in the Appeal Hearing on Pesticide Control Pennit No. 104-335-82/83 issued by the Administrator of the Pesticide Control Act to the Ministryof Forests, and has decided to add the following conditions to the pennit:

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British Columbia Minister of Forests (Cont.)

1. Warningsigns shall be posted in praninent places whenthe pesticideapplication commences.

2. The permit holder shall notify the occupants of the McGeeresidence,or any other occupants of a residence within one-half mile of thesi te, of the intended date of application.

3. Aerial spraying is to be undertaken only whenthe wind directionis fzxm the north west and the wind speed is less than 8 kmper~. \

4. The triangular shaped area between the junction of SouthviewRoadand the northern end of the site area is deleted frxm the permi,t.

5. The permi,t holder shall conduct the following monitoring:

a) Analysis of 2,4-D on one or more samples of PlummerCreekwater taken 3 to 9 hours after the first flood followingapplication.

b) Aerial drift detection using the test paper methoddescribedby the permit holder.

Copies of the monitoring reports are to be forwarded to theAdministrator, Pesticide Control Act and to the EnvironmentalAppealBoard

The Panel has also decided that with the above-noted additional conditions,the implementation of the programwill n~ cause an unreasonable adverseeffect to manand/or the environment and on this basis, the appeals are herebydismissed.

In comingto this decision, the Panel of the Board takes notebf thefollowing:

The Panel accepts the evidence that 2, 4-DI like most other chemicals}ispotent.ia.lIy a toxic substance and;whenmisused, mayhave acute and chronicadverse effects. Therefore, humanexposure to the chemical should be minimizedand every effort should be madeto apply it as SParingly and discriminately aspossible.

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With the deletion of the area adjacent to the McGee'swater line, theconditions imposedon wind speed and direction:and the stipulation in thepermit of IQ-meterbuffer zones for the protection of water bodies, thepossibility of significant contaminationof potable water supplies, PlurmnerCreekor OkeoverInlet and, hence, contaminationof fish stock or thernariculture industry,woul.d appear to be virtually non-existent.

The Panel wouldencouragethe Ministry of Forests to consider using amanualrelease programon the area deleted from this permit, in a mannez totest the efficacy of the procedures suggested by the appellants at thishearing or suchmodification of the procedures as the Ministry deemsappro-priate. If the Ministry of Forests so chooses, a brief report should beforwardedto the Administrator, Pesticide Control Act and the EnvirorurentalAppealPanel.

With respect to the point raised by the appellants that the permit holderdid not give the Administrator the location of the McGee'sdwelling andwatersoureer the Panel considers this to be an error by the Ministry that has beencorrected by the additional conditions imposedon the permit by this Judgement.

A.J. LynchPanel ChairmanEnvirorurentalAppealBoard

October 20, 1982

Appeal tb. 82-15 PES. JUDGEMENT APPEAL

Documents

Transcript of Appeal tb. 82-15 PES. JUDGEMENT APPEAL