Decision Date: April 14, 2010

Panel: Alan Andison

Keywords:  Integrated Pest Management Act – ss. 6; 14(1); appealable decision; jurisdiction; pesticide use permit; gypsy moth; Foray 48B; Bacillus thuringiensis var. kurstaki (Btk)

Caryl and Jeff Jones appealed a permit issued by the Administrator, Integrated Pest Management Act (the “Administrator”), Ministry of Environment.  The permit authorized the BC Minister of Forests and Range (the “Permit Holder”) to conduct up to four aerial applications of the pesticide Foray 48B (active ingredient Bacillus thuringiensis var. kurstaki (“Btk”)) over parts of Richmond, BC, between April 15, 2010 and June 30, 2010.  The pesticide use was intended to eradicate introduced populations of the European gypsy moth (Lymantria dispar) from a specified area in Richmond.

The Appellants’ principal residence is within the area to be sprayed with the pesticide.  They submitted that the pesticide use would adversely affect their health, as well as the health of the general population and non-target species.  The Appellants requested that the Board rescind the permit.  Alternatively, should the pesticide use be allowed, they requested that the Board make a number of orders that would apply to the permit holder and other government agencies.  The Appellants also requested a stay of the permit, and requested an order requiring the Permit Holder to pay the Appellants’ costs to bring the appeal.

After the appeal was filed, the Permit Holder raised a preliminary issue regarding the Board’s jurisdiction over the appeal.  The Permit Holder submitted that section 14 of the Integrated Pest Management Act (the “Act”) only allows appeals of the terms or conditions of a permit, but not the permit itself, which was what the Appellants sought to appeal.  The Board issued a preliminary decision finding that section 14 of the Act only allows appeals of the terms or conditions of a permit.  Consequently, the Board concluded that it could not grant one of the remedies sought by the Appellants; namely, rescinding the permit.  However, the Board decided that the Appellants’ concerns related to certain conditions in the permit, and therefore, the Board declined to dismiss the appeal in its entirety.  The Board went on to consider the merits of the appeal.

The Board conducted an expedited hearing of the appeal due to the need for a decision on the appeal before spraying could commence.  As a result, it became unnecessary to hear the Appellants’ application for a stay.

The Board reviewed the terms and conditions in the permit that were of concern to the Appellants.  The Board found that those terms and conditions were added at the discretion of the Administrator, and were appealable under section 14(1)(b) of the Act.

The Board next considered whether the terms and conditions were appropriate in that, at a minimum, they would not cause an unreasonable adverse effect.  In that regard, the Board applied the two-step test that was applied in previous Board decisions; namely, (1) whether the conditions in the permit would have an adverse effect on humans, animals or the environment; and (2) if there will be an adverse effect, whether that adverse effect is reasonable based on a cost-benefit analysis.  The Board held that the use of the pesticide as authorized by the conditions in the permit may have an adverse effect on non-target moths and butterflies in the spray zone.  However, the Board also found that the conditions in the permit were reasonable and appropriate.  In particular, the Board found that expansion of the gypsy moth population would cause damage to both the environment and the economy of BC, and that aerial spraying of the pesticide was the most appropriate and effective method for eradicating the gypsy moth in the spray area.  In addition, the Board held that the adverse effect on non-target moths and butterflies would be temporary.  In all of these circumstances, the Board concluded that there would be no unreasonable adverse effects from the use of the pesticide in accordance with the permit conditions, because the potential adverse effect from the pesticide use did not outweigh the potential harm to the environment and the economy if the gypsy moth population became established.

Regarding the alternative orders sought by the Appellants, should the pesticide use be allowed, the Board concluded that the orders were either beyond the Board’s jurisdiction or should be denied based on the Board’s conclusions on adverse effects.

The Board denied the Appellants’ application for costs, as there were no special circumstances that warranted an award of costs against the Respondent or the Third Party.

Accordingly, the appeal was dismissed, and the Appellants’ application for costs was denied.