Province ofBritish Columbia

Ministry ofEnvironmentand Parks

ENVIRONMENTAL APPEAL BOARDVictoriaBritish ColumbiaV8V 1X5

JUDGEMENT:

APPEAL NO. 87/23 PES

In the appeals of Dr. Michael D. Kates and Concerned Citi-zens Against Chemical Spraying, against the Pesticide ControlAct Pesticide Use Permit 134-048-87/89, issued to B.C. Railway,for the application of the herbicide, Roundup, to B.C. Railwayright-of-way between Mileboard 2 and Mileboard 12, through WestVancouver.

PUP 134-048-87/89 is an application of Roundup to 20.0hectares of B.C. Rail right-of-way.blackberries and the application rateingredient per hectare. The methodspack sprayer and powerhose nozzle.

APPELLANTS

The target species isis 2.0 kg. activeof application are back-

Dr. Michael D. KatesSuite 400, 145 West 17th AvenueNorth Vancouver, B. C. V7M IV5

Concerned Citizens Against Chemical Sprayingc/o Mrs. Emma Ross-Awde

4480 Keith RoadWest Vancouver, B.C. V7W 2M5

APPEAL NO. 87/23 PES PAGE 2

DECISION:

The Environmental Appeal Board, authorized under thePesticide Control Act and the Environment Management Act tohear the appeals of Dr. Michael D. Kates and the ConcernedCitizens Against Chemical Spraying against Pesticide UsePermit 134-048-87/89, issued to B.C. Railway for the controlof blackberries along the B. C. Rail right-of-way in WestVancouver, has considered all the evidence submitted to it atthe hearing in North Vancouver on November 20th and 21st,1987, and has decided that the implementation of thisherbicide program under the terms of the Permit as amended inthis decision will not cause an unreasonable adverse effecton mankind or the environment.

It was established during the hearing that B.C. Rail hasfour reasons for applying Roundup along the right-of-way.These are:

1) To ensure access by the West Vancouver Fire Departmentto residential properties in case of emergency.

2) To maintain a clear line of sight for train crews alongthis section of the railway.

3) To remove blackberry vines beside the tracks where thesevines constitute a safety hazard to train crews.

4) To prevent deterioration of the ballast section of thetrack by the roots of the blackberry plants.

The Board feels that these are legitimate reasons forcontrolling the growth of the blackberries.

The Board is also aware that the citizens of WestVancouver have every right to prohibit the application ofherbicide to their private properties. B.C. Rail is, there-fore, directed, as a condition of the use of this permit, to

APPEAL NO. 87/23 PES PAGE 3

apply the herbicide Roundup only by spot treatment, and at nogreater distance from the centerline of the tracks, at anypoint, than is necessary to meet the requirements of the fourreasons for treatment as stated on Page 2 of this document.

With the exception of this amendment to the Permit, theappeals are dismissed.

GENERAL COMMENTS OF THE PANEL

1) The Federal Government of Canada has the jurisdictionto register pesticides for use in Canada. It hasgiven full registration to the herbicide, Roundup, andthis allows it to be used in Canada, provided it is usedin a safe manner and in accordance with the pesticidelabel.

2) The Provincial Government's jurisdiction and, therefore,the Environmental Appeal Board's jurisdiction, lies inensuring that where pesticides are used in BritishColumbia, they are used safely and in accordance withthe provincial rules governing their handling and appli-cation. A provincial pesticide use permit is site-specific in the conditions and terms allowed within thepermit. A person appealing a permit will, therefore,attempt to prove to the Board that the permit holderwill not apply, or is not capable of applying, theherbicide safely and in accordance with the permit andthe pesticide label, or that the specific site involvedwill not lend itself to a safe application of theherbicide.

3) The Board is aware that Roundup has been previously usedon many occasions for vegetation control in BritishColumbia. No adverse effects resulting from the use ofthis herbicide under the terms of a permit in Canadahave ever been reported.

APPEAL NO. 87/23 PES PAGE 4

4) The only evidence brought forward at this hearing toindicate that any adverse effects had resulted from theuse of Roundup came from anecdotal reports to the UnitedStates Environmental Protection Agency. As far as canbe noted, none of these accounts dealt with a properlycontrolled application of the chemical, and certainlynot within the usual terms of a British Columbia pesticideuse permit. It should be emphasized that there is a hostof everyday chemicals which require no registration butwhich can be harmful if mishandled - for example;gasoline, solvents, paint strippers, common lye, alcohol,non-prescription drugs, etc.

5) Several witnesses expressed concern with possible healtheffects, but no evidence to support these concerns wasforthcoming.

6) There was a good deal of discussion during the hearingrelated to the United States Environmental ProtectionAgency's testing requirements and to U.S. registrationof pesticides. These matters are very obviously outsidethe terms of reference of the British Columbia Environ-mental Appeal Board.

7) In the evidence presented by Miss Kansky, seven exampleswere outlined of ways in which products with inadequateor incomplete data might be used in Canada. Shefailed, however, to establish that Roundup falls in anyone of these categories. Miss Kansky further statedthat there is nothing to prohibit the Provincial author-ities or the Environmental Appeal Board from enteringinto an examination of the safety of registeredproducts. The Environmental Appeal Board accepts thispremise and would not fail to take some action shouldevidence be forthcoming to indicate the likelihood of anunreasonable adverse effect resulting from the use of aregistered pesticide under the terms of a provincialpermit.

APPEAL NO. 87/23 PES PAGE 5

8) Having reached the decision that no unreasonable adverseeffect will result from the use of this permit, theBoard has not felt it necessary to pursue further theavailability or efficacy of alternative methods of vege-tation control.

9) During the hearing, many questions were raised regardingprocedural matters in applying for, advertising,permitting and posting of Pesticide Use Permits. TheBoard feels that these matters are more properly dealtwith by the Administrator of the Pesticide Control Act.The Administrator's attention is particularly drawn tothe incorrect posting of this particular permit, whereonly the permit form and not the application form wasposted. The Board accepts the B.C. Rail statement thatthis was not intentional but asks that the Administratordeal wih this infraction as he sees fit. It isstrongly recommended that instructions to permit holdersregarding posting be improved so as to make it veryclear exactly which documents are to be posted.

10) The Board wishes to thank Mr. Michael Wan of EnvironmentCanada for accepting the Board's invitation to attendthe hearing and for his useful comments.

R. F. Patterson, Ph.D.,Panel Chairman,Environmental Appeal Board

Victoria, B. C.January 29th, 1988