Decision Date: April 15, 1998

Panel: Toby Vigod, Cindy Derkaz, Gary Robinson
(* Mr. Robinson withdrew from the Panel due to ill health)

Keywords: Pesticide Control Act – ss. 1, 6(3); gypsy moth; unreasonable adverse effect

The Resident Advisory Board and several other organizations and individuals appealed a decision of the Deputy Administrator to issue Pesticide Use Permit 214-018-98. The Permit authorized the aerial application of Foray 48B, a bacteriological pesticide whose active ingredient is Bacillus thuringiensis var. Kurstaki (“Btk”), over parts of Langford, Colwood, Esquimalt, and Saanich for the purpose of eradicating introduced populations of the European gypsy moth. The grounds for the appeal centered on issues of human health, risk to non-target species, whether the stated goal of eradication would be achieved by the permitted spray program, impacts on organic farm and nursery operations, and alternative methods of eradication or control. The Appellants sought an order cancelling the Permit or, alternatively, an order varying the Permit so that it would not allow indiscriminate aerial or ground spraying.

Applying the test set out in the legislation, as interpreted by the courts, the Panel compared the risk of adverse effects from the proposed spray program with its intended benefits. It found that the aerial spraying permitted in this case would create an unacceptable risk to local residents with health problems; particularly, children, the elderly, and persons of all ages with respiratory ailments, allergies, immunity deficiencies, and chemical hypersensitivities. The Panel also found that there was a significant risk of an adverse effect on non-target species. It determined that reasonable alternative methods to aerial spraying exist and that, to allow aerial spraying over heavily populated urban areas when alternatives are available, poses an unreasonable adverse effect.

The Panel referred the Permit back to the Deputy Administrator to vary and amend the Permit to reflect the Panel’s orders that there be no aerial spraying on any of the proposed sites, that ground spraying be allowed in certain locations provided it is focused on appropriate deciduous vegetation only, and that no spraying be performed on school properties or playing fields. The Panel also recommended that the Permit Holder be directed to consult with the Appellants regarding the implementation of alternative methods in support of the ground spray program. The appeal was allowed.