Appeal No. 98-247

Date of Hearing: March 18, 1999

Date of Decision: April 16, 1999

 

IN THE MATTER OF Sections 84, 86, 87, 90 and 223 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

 

 

-and-

 

 

IN THE MATTER OF an appeal filed by Mr. Robert Spiedel on behalf of Bodo Oilfield Maintenance Ltd. with respect to Administrative Penalty #98/05-PCD-AP-98/19 issued to Bodo Oilfield Maintenance Ltd. by the Director of Enforcement and Monitoring Division, Alberta Environmental Protection.

 

 

                        Cite as: Bodo Oilfield Maintenance Ltd. v. Director, Enforcement and Monitoring Division, Alberta Environmental Protection.


HEARING BEFORE

 

Dr. William A. Tilleman, Chair

Dr. M. Anne Naeth

Mr. Ronald V. Peiluck

 

APPEARANCES  

 

Appellant: Mr. Robert Spiedel, counsel, Fraser Milner, representing Bodo Oilfield Maintenance Ltd., Mr. Eugene Heck, President, Bodo Oilfield Maintenance

Other Parties: Ms. Joanne Esbaugh, counsel, Alberta Justice, representing Mr. Fred Schulte, Director, Enforcement and Monitoring, Alberta Environmental Protection, Mr. Wayne Boyd, Ms. Renee Craig

TABLE OF CONTENTS

I. FINDINGS OF FACT

1
A.   BACKGROUND 1
1. Service Approval Issued to Bodo Oilfield Maintenance Ltd.
1
2. Pesticide Applicator Certificate Issued to Mr. Charles Treat
2
3. Pesticide Sales, Handling, Use and Application Regulation (PSHUAR)
2
B. THE DIRECTOR=S INVESTIGATION OF BODO=S CONTRAVENTIONS 3
Infractions 5
1. Preliminary Assessment of Administrative Penalty 
6
2. Initial Variation of Administrative Penalty
6
3. Final Assessment of Administrative Penalty
8
C. LEGISLATIVE SCHEME FOR APPEALS TO THE BOARD 8
II. BOARD=S ANALYSIS 9
A. BURDEN OF PROOF AND STANDARD OF REVIEW 9
B. BASE PENALTY 11
1. Adverse Effects
11
2. Variation from Regulatory Requirement
12
C. ADJUSTMENTS TO BASE PENALTY 15
III. ORDER 16

I.  FINDINGS OF FACT

 

 

A.  BACKGROUND

 

[1]   This is an appeal by Bodo Oilfield Maintenance Ltd. (Bodo or the Appellant) of a $5,500 administrative penalty assessed against Bodo, for contravening sections 5(1) and 16(a) of the Pesticide Sales, Handling, Use and Application Regulation[1].  The penalty was issued by Mr. Fred Schulte, Director of the Enforcement and Monitoring Division, Alberta Environmental Protection (Director).  Bodo filed the appeal pursuant to section 84 of the Environmental Protection and Enhancement Act[2] (EPEA).  Bodo does not contest the Director's findings that Bodo contravened the regulations; it only seeks to reduce the penalty to $2,000.

 

1.  Service Approval Issued to Bodo Oilfield Maintenance Ltd.    

 

[2]  Bodo is a duly registered company conducting business in the Province of Alberta.  Mr. Eugene Heck is the director and majority shareholder of Bodo.  On February 1, 1996, Bodo received Pesticide Service Approval No. 1533 (now Pesticide Service Registration) pursuant to the Pesticide (Ministerial) Regulation,[3] to offer a service involving the use and application of industrial pesticides in Alberta.  The registration is valid until October 1, 2001.

 

[3]  The Department of Environmental Protection, Pollution Control Division (PCD), as it was then called, assessed a preliminary penalty of $8,000 against the Appellant for two contraventions of the Pesticide Sales, Handling, Use and Application Regulation (PSHUAR) under EPEA.  Following several meetings with the Appellant, the Director assessed a final penalty of $5,500.  The Appellant admitted contravening the regulations but urged the Board to reduce the penalty because it was too severe for the offences.

 

2.  Pesticide Applicator Certificate Issued to Mr. Charles Treat

 


[4]  On March 18, 1996, Mr. Charles H. Treat, an employee of Bodo, received Pesticide Applicator Certificate of Qualification No. 9432 pursuant to the Pesticide (Ministerial) Regulation.[4]  To become certified, an applicator must be competent in the use and handling of pesticides generally, or in the use and handling of specific pesticides or class of pesticides.  This certificate, which is valid until May 3, 2000, allows Mr. Treat to operate as an industrial pesticide applicator in Alberta.  Mr. Treat is Bodo=s only certified pesticide applicator.

 

3.  Pesticide Sales, Handling, Use and Application Regulation (PSHUAR)

 

[5]  On September 1, 1993, EPEA came into force.  The associated pesticide regulations, the PSHUAR and the Pesticide (Ministerial) Regulation, were then issued by the Lieutenant Governor in Council.[5]

 

[6]  All pesticides sold in Alberta must be registered under the Pest Control Products Act (Canada).  A pesticide is defined in section 1(uu) of the EPEA to include herbicides, insecticides, fungicides, rodenticides and repellents.

 

[7]  The Pesticide (Ministerial) Regulation groups pesticides into four schedules based primarily on how the pesticides are classified under the Pest Control Products Act (Canada).  The schedule in which a pesticide is listed will determine who can sell and buy the pesticide, as well as any vendor requirements for pesticide display, storage and sales record keeping.  The differences in classification relate to toxicity and risk factors. 

 

[8]  Failure to comply with the pesticide regulations is an offence and may result in judicial or administrative enforcement actions.  Section 3(1) of the Administrative Penalty Regulation provides the following table calculation of a base administrative penalty amount.

 

3(1) Subject to subsections (2) and (3), the amount of an administrative penalty shall be the base penalty calculated by the Director in accordance with the following Table:

 

 

  Variation from Regulatory Requirements

Potential

For

Adverse

Effect

  Major Moderate Minor
Major $5,000 $3,500 $2,500
Moderate $3,500 $2,500 $1,500
Minor $2,500 $1,500 $1,000

 

Under Section 3(2) of the regulations, the Director can raise or lower the base after considering several factors listed in that section.  These factors include the history generally and compliance history specifically; guilt or innocence (good faith in the efforts to comply); character and degree of injury or potential injury or interference with protection to the environment; economic benefit (if any) resulting from the violation and any other factor that may be relevant.  In other words, the Director may look at any other matter that justice and fairness require.

 

B.  THE DIRECTOR=S INVESTIGATION OF BODO=S CONTRAVENTIONS

 

[9]  The Director=s penalty assessment involves Bodo=s use of Tordon 22K, a broadleaf herbicide containing picloram which is registered under the federal Pest Control Products Act (Registration No. 9005).  The federally approved label for Tordon 22K states that for cultivated cropland in Western Canada, it is to be used for spot treatment only.  The label also states that A[t]he spot should not be more than 0.4 hectare of land and the total area of all treated spots combined in any one field should not be in excess of 5% of the total area of that field in any one year.@  In addition, clause 5.9.7 of AEP=s Procedures for Pesticide Applicators requires that a certified applicator must be physically present during the application of any pesticide with a federal label with an authorized user restriction.   These label and regulatory restrictions exist because Tordon 22K is a highly potent, persistent and water soluble pesticide.  It can move with water in irrigation or drainage ditches.  It may adversely affect cultivated cropland for up to five years.  Once Tordon 22K is applied, the types of crops that can be grown are limited by the residue.  Sensitive crops and broadleaved species are adversely affected by picloram below detectable levels of 0.01 ppm.  Picloram passes unchanged through the digestive systems of grazing animals, including presumably wild grazers, which eat vegetation containing picloram.  This poses a concern because their manure can be spread and the herbicide transferred with a potential to damage other cropland. 


[10]  The Director=s investigation stemmed from a report made to Alberta Environmental Protection (AEP) on February 24, 1997, by Mr. Glenn Good, a land agent with Acadia Agro Services.   Mr. Good works for Mr. Jeff and Mr. Jack Baier, who hold a grazing lease which includes  a 13.5 acre site at SE1/4 Section 2, Township 34, Range 1, West of the 4th Meridian (the site).  That lease is adjacent to land leased by Paloma Petroleum which hired Bodo to apply herbicides to its lease.  Mr. Good reported that, at an inspection of the site in fall 1996, he observed that the crested wheatgrass was burned off.  Mr. Good also reported that he had contacted Mr. Heck, who had admitted that Bodo had mistakenly sprayed the wrong location with Tordon 22K on June 14, 1996. 

 

[11]  Mr. Wayne Boyd of AEP started an investigation.  Mr. Boyd interviewed the Baiers and inspected the site on May 13, 1997.  The Baiers stated that they had not sprayed the site since seeding.  The Baiers also told Mr. Boyd they had planned to cut the hay in late June or early July 1996, but did not cut it because of the low yield caused by Bodo=s spraying.  The hay that was affected had apparently been planted adjacent to the oil field lease and was not part of a contiguous stand of legumes.

 

[12]  Mr. Boyd's visual inspection in May 1997 showed that live alfalfa plants were spotty throughout the site.  Crested wheatgrass was growing throughout the site; a few plants appeared dead while some plants had thinner leaves and appeared stressed.  The vegetation inside the fenced well lease area was dead.

 

[13]  Mr. Boyd collected composite soil and vegetation samples from the site and the adjacent field and sent them to Enviro-Test Laboratories (Enviro-Test) for chemical analysis for picloram, the active ingredient in Tordon 22K.  The results from Enviro-Test showed one sample of dead crested wheatgrass containing 0.081 ppm of picloram and a sample of green crested wheatgrass containing 0.32 ppm of picloram.

 

Infractions 


[14]  At the May 13, 1997 interview with Mr. Boyd, Mr. Heck explained that Bodo had been contracted to apply Tordon 22K to land leased by Paloma Petroleum.  Mr. Robert Wetzstein, an employee of Bodo, was directed by Mr. Heck to undertake this application.  On June 14, 1996, Mr. Wetzstein misidentified the lease site and applied the pesticide to the wrong land.[6]  Further, Mr. Wetzstein was not a certified pesticide applicator and applied the Tordon 22K to the site without any on-site supervision by his supervisor, Mr. Treat, or any other certified applicator.  Mr. Wetzstein broadcast  the pesticide over the 13.5 acres with a boom and handgun, not by spot treatment as required by the Tordon 22K label.  As a result, Mr. Boyd issued a Notice of Investigation to Bodo on May 13, 1997.

 

[15]  Following his investigation, in which Bodo was fully cooperative, Mr. Boyd forwarded the investigation file to PCD for further action.  On March 24, 1998, PCD contacted Mr. Heck and advised Bodo that it had contravened ss. 5(1) and 16(a) of the PSHUAR.[7]

 

1.  Preliminary Assessment of Administrative Penalty

 

[16]  PCD made a preliminary assessment of the administrative penalty based upon  contravention of sections 5(1) and 16(a) of the PSHUAR and the calculation under the Administrative Penalty Regulation[8] (APR).  Pursuant to s. 3(1) of the APR, a base penalty of $5,000 was assessed for the section 5(1) contravention. 

 

[17]  For the section 5(1) contravention, the variation from regulatory requirement was assessed as major since there was a violation of an environmental restriction.  For a 13.5 acre crop, the maximum allowable area for treatment with Tordon 22K would be 0.7 acres, as per the label requirements.  In this case, the entire 13.5 acres was broadcast sprayed.  The potential for adverse effect was also assessed as major because the hay crop was damaged and the potential five year persistence of picloram would restrict cropping practices and impose limitations on manure spreading.

 

[18]  PCD assessed a base penalty of $3,500 for the section 16(a) contravention.  The variation from regulatory requirement was assessed as moderate, because the contravention was a performance restriction rather than an environmental restriction.  The potential for adverse effect was assessed as major since the vegetation had been damaged and the potential five year persistence of picloram would restrict cropping practices and impose limitations on manure spreading. 


2.  Initial Variation of Administrative Penalty

 

[19]  PCD considered the factors in section 3(2) of the APR, and accordingly reduced the penalty by $500.[9]  Thus the total base penalty was reduced from $8,500 to $8,000 for the preliminary assessment.

 

[20]  The March 24, 1998, letter proposed a meeting with Mr. Heck to discuss the penalty assessment.  At the subsequent April 28, 1998 meeting, Heck provided information about the incidents leading up to the contraventions.

 

[21]  Bodo had been spraying since 1987 and had no previous incidents.  At the time of the contraventions Bodo sprayed 1,000 to 1,500 sites per year.  Mr. Heck admitted Bodo=s mistake,[10] but expected the penalty to be approximately $1,000.

 

[22]  On May 5, 1998, PCD received a package of information from Bodo to be considered by the Director in making his decision; from that, PCD decided that further sampling was required to determine if there was persistent picloram in the soil.  On July 19, 1998 Mr. Boyd did a further site inspection.  He took 18 photographs of the site and an adjacent field to the north of the site.  Mr. Boyd took two composite soil samples and one composite vegetation sample on the site which were submitted to Enviro-Test for analysis.  These sample results were all below the detection limit for picloram.

 

[23]  On September 9, 1998, the Director spoke to Mr. Heck via telephone.[11]  The Director reviewed the new information and advised Heck that he would be making a final decision on the administrative penalty. 

 

3. Final Assessment of Administrative Penalty

[24]  On September 28, 1998, the Director reviewed the investigation file, the information received from Mr. Heck on May 5, 1998, the results of the soil and vegetation sample analyses and a report from AFC Agra Services Ltd.  Based on this information, the decision was made to lower the assessment.[12]   The base penalty for the contravention of s. 5(1)(a)(i) of the PSHUAR was reduced from $5,000 to $3,500.  The base penalty for the contravention of s. 16(a) of the PSHUAR was reduced from $3,500 to $2,500, reducing the total base penalty from $8,500 to $6,000.  The adjustment to the base penalty, a reduction of $500, remained unchanged.  Therefore the total final penalty was $5,500.

 

[25]  On October 20, 1998 Bodo appealed to the Board.

 

C.  LEGISLATIVE SCHEME FOR APPEALS TO THE BOARD

 

[26]  Section 223 of the Environmental Protection and Enhancement Act enables the Director to require a person to pay an administrative penalty when that person violates the Act.  Where the Act or regulations are contravened, the APR, discussed above, sets out a method of calculating the penalty to be assessed.  Section 83 of the Act established this Board to hear appeals from individuals or corporations who have complaints with decisions of Department officials.  Section 84(k) lists administrative penalty assessments  among the categories of decisions that can be appealed to the Board.  For purposes of reaching the final conclusion in this appeal, the Board is mindful of the legislative alternatives given to the Board in reviewing the Director's decision in section 90(3).[13]

 

[27]  The purposes of the legislation establishing and governing the Board are found in  section 2 of the Act.[14]

 

 

II.  BOARD=S ANALYSIS

 

A.  BURDEN OF PROOF AND STANDARD OF REVIEW


[28]  Appellants generally bear the burden of proving the merits of their appeals before the Board.  This burden must be viewed in light of the Board=s deferential review of the Director=s findings and judgments in assessing administrative penalties.  In two previous decisions the Board set out the test to be applied in reviewing the Director=s assessment of an administrative penalty. [15] In both Decisions the Board stated:

 

AIn general, the Board believes that the Director's decision should be sustained if the discretion exercised by the Director in interpreting the regulations is supported by substantial evidence when based on a review of the whole record and the evidence before us.  We recognize that the Director has been given a range of several thousand dollars in assessing penalties in the regulatory matrix and we defer to the expertise of the Department and its delegation of discretionary powers to assess a penalty, as long as we are satisfied that the Director:

 

1. made appropriate inquiries into the factual basis for the penalty;

2. stated in a written decision his findings of fact with considered reasons to support the penalty based on the regulatory matrix and associated discretionary factors;

3. that his reasons reflect a considered response to the evidence before him as well as the contention of the Appellant; and 

4. that the Appellant had a reasonable opportunity including adequate notice to furnish relevant evidence to contradict the Department's evidence and to explain the facts from the Appellant's perspective.

 

That said, the Board would consider changing or reversing the decision of the Director if the evidence before us did not in a particular case meet the goals of the Act, or if one of the above factors was neglected by the Director.@

 

The Board must decide whether or not Bodo has met its burden of proving that the Director=s decision fails to satisfy this test. 


[29]  Bodo=s burden of proof must be viewed, not only in light of the Board=s standards of review, but also in the context of the goals which EPEA is intended to achieve.  One of the key purposes in section 2 of the Act is the protection of the environment.  This purpose reflects the legislature=s recognition that, inter alia, environmental protection is Aessential to the integrity of ecosystems and human health and to the well-being of society@ (section 2(a)) and that polluters should bear the Aresponsibility ... to pay for the costs of their actions@ (section 2(i)).  The Act aims to achieve these goals by creating both judicial penalties and, in section 223, an administrative penalty option. 

 

[30]  The Board believes section 2(a) of the Act is implemented, in part, through the assessment of civil penalties in appropriate cases, to ensure deterrence, retribution and restitution in the form of compensation or partial compensation for the expenses incurred by the government in the investigation of offences.

 

[31]  The Board believes the amount of the penalty must reflect the regulatory matrix and  associated criteria.  Whether the Appellant has derived an economic benefit is important to the final determination of penalties.  The Board believes that to achieve the goal of deterrence, the penalty must be high enough that those who violate the law without reasonable excuse will not be able to use the penalty as an acceptable trade-off for the harm or potential harm done to Alberta's environment.

 

[32]  The Board acknowledges and appreciates the fact that the Appellant admits contraventions of sections 5(1) and 16(a) of the PSHUAR.  The Appellant applied a pesticide in a manner that causes or is likely to cause an adverse effect and it was applied by a non-certified, unsupervised applicator when the label requirements allowed only an authorized applicator.   The Appellant also admitted at the appeal hearing that the base penalty for both offenses should be $1,500 each.

 

B.  BASE PENALTY

 

[33]  The Board believes that on the facts of the case a $6,000 total base penalty is too high.   

 

1.  Adverse Effects


[34]  Section 3(1) of the Administrative Penalty Regulation establishes the matrix to be used by the Director in assessing the penalty.  First, the Director looks at the facts before him to determine the variation from regulatory requirements in reaching a base penalty.  In this case, the Director determined in the final assessment that Bodo fell into moderate variation from the regulatory requirements for both contraventions in the potential for adverse effect.  This reduced the base penalty for contravening s. 5(1)(a)(i) of the PSHUAR from $5,000 to $3,500.  The base penalty for the contravention of s. 16(a) of the PSHUAR was reduced from $3,500 to $2,500.  

 

[35]  The Director=s judgment regarding adverse effects seems reasonable to the Board.  Reading the Act and the Pesticides and Administrative Penalty Regulations together, the Board concludes that measurable environmental harm is not a necessary prerequisite for a moderate penalty designation.  According to the Tordon 22K label, picloram may persist in the soil for up to five years.  In this case, picloram is no longer present in the soil at detectable levels.  However, it may be present at non-detectable levels, which may still pose material environmental risks as noted in paragraph 9 above.

 

2.  Variation from Regulatory Requirement

 

[36]  At the hearing, the Appellant argued that the land to which the Tordon 22K was actually applied was not Acultivated cropland@ because it was land that was either reclaimed by an oil company or hay that was seeded incidental to oilfield lease sites.  According to the Appellant, the Baiers had no intent to seed the land for the primary purposes of harvesting a hay or any other crop or for supporting livestock.[16]  Given these facts, the Appellant argued that the variation from the regulatory requirement was moderate in both contraventions, because the label requirements at issue applied only to applications of Tordon 22K to Acultivated cropland.@  The label does not define that term.  A.R. 127/93 defines Acultivated land@ as land that has been cleared, improved and prepared to raise agricultural crops or livestock, and includes pastures and improved range;@ [emphasis added]. The Board agrees.[17]


[37]  Based on what the Board heard at the March 18, 1999 appeal hearing, we believe that  the vegetation sprayed was not primarily planted for the purpose of raising crops or livestock.  The Director did not address this factual issue at the hearing.  The general information from the label suggests that a licensed applicator must be present for spot treatment on cultivated land, but not for application to non-cultivated cropland areas.[18]  The Board believes that a reasonable person could be confused applying the terms  cultivated land or cropland to the Baiers= site.  Accordingly, the Director should have lowered the variation classification for the section 5(1) contravention in light of this ambiguity.

 

[38]  However, the Board believes the Director=s threshold classification of the offence as moderate was too low.   Section 16(a) of the PSHUAR reads:

 

16 Where a pesticide label that conforms to the requirements of the Pest Control Products Act (Canada) specifies that the pesticide shall only be applied by an authorized applicator, certified applicator or approved applicator, or contains any similar restriction, no person other than

 

(a) an applicator or a conditional applicator working under the supervision of an applicator,

 

The harm that this provision intends to avoid is the application of a serious chemical (such as Tordon 22K) by someone who is not licenced.[19]   


[39]  The Director=s (preliminary) administrative assessment form (p.2) implies that this infraction was only a moderate, rather than a major, variation from regulatory requirement, because it related to a performance restriction rather than to an environmental restriction.  The Board believes this distinction is arbitrary and unreasonable, at least with respect to the requirement at issue, because the purpose of that requirement is to protect the environment.   In this sense, the requirement that a certified applicator apply the pesticide is clearly an environmental restriction.  The actual harm to the Baiers= crops observed by the AEP inspector could likely have been avoided had Bodo=s certified applicator, who is trained to read the pesticide label and to take various other precautions, been present to apply the pesticide himself.[20]  Thus, this infraction confirms the environmental purpose behind the requirement for on-site certified applicators.  Given the arbitrariness of the Director=s distinction, the Board does not believe it is appropriate to defer to the Director=s judgment on that issue.

 

[40]  In summary, the Board believes that the environmental purpose of the requirement for an on-site certified applicator warrants a threshold classification of the second infraction as a major variation from regulatory requirement.  However, given the Director=s failure to refute Bodo=s claims regarding the ambiguities as to whether the site was cultivated crop-land, the major classification should be reduced to moderate.  Thus, the Board ultimately concurs that, given the unique facts of this case, the second infraction should be classified as Amoderate@ with respect to the variation from regulatory requirement, even though the Board disagrees with the Director=s justification for the classification.

 

[41]  Pursuant to the analysis above, the base penalty for the first contravention should be reduced from $3,500 to $2,500; the base penalty for the second contravention should remain $2,500. 

 

C.  ADJUSTMENTS TO BASE PENALTY

 

[42]  The Board now proceeds to see if the total base penalty ($5,000) should be readjusted.  The Board defers to the Director=s judgment that the base penalty should be adjusted downward.  But the downward adjustment should be increased from $500 to $1,250 for the reasons that follow:  Bodo has a history of full compliance and the Director made no claim that Bodo received any economic benefit from its non-compliance.  Bodo has made significant changes to its corporate policy including never again purchasing Tordon 22K or any other restricted chemical without the advance permission of the company president.  Bodo fully cooperated in the investigation, potentially saving the Province thousands of dollars in investigation and/or legal fees to prosecute.  Finally, the Baiers were compensated by Bodo=s insurance company for damage to their crops.  While restitution of the Baiers may not be the most important factor, it is clearly relevant.   Under these circumstances, a $500 downward adjustment is unreasonably low.  The Board believes $1,250 is a more reasonable downward adjustment.

 

[43]  In summary, the Board concludes that the base penalty on the first offence should be reduced by $1,000 and that the base penalty for both offenses should be adjusted downward an additional $750, resulting in a final penalty of $3,750.  The following chart clarifies the Board=s changes to the Director=s penalty calculation:

 

Base Calculations:

 

Count 1  

Count 2

Director

Board Director Board
Variation from Regulatory Requirement

Major

Moderate Moderate Moderate
Potential for Adverse Effect

Moderate

Moderate Moderate Moderate
BasePenalty $3,500 $2,500 $2,500 $2,500

 

Total Base Penalty for Both Contraventions:

 

Director  Board

$6,000   $5,500

 

 

Net Adjustments to Total Base:

 

Director  Board

-$500   -$1,250

 

Total Penalty Calculation:

Director                      Board

$6,000 Base               $5,000 Base

-  $500 Adjustments  -$1,250 Adjustments

$5,500                        $3,750

 


III.  ORDER

 

[44]  The Appellant is required to pay $3,750 within 30 days of the date of this Decision.

 

 

Dated on April 16, 1999, at Edmonton, Alberta.

 

 

 

Dr. William A. Tilleman 

Dr. M. Anne Naeth 

Mr. Ron V. Peiluck

 


 FOOTNOTES



[1].   [1] A.R. 126/93.

[2].   [2] S.A. 1992, ch.E-13.3 as amended.

[3].   [3] A.R. 127/93.

[4].AR 127/93, s.11(1).

[5].Pesticides which are not included in these regulations are antimicrobials; those exempted from registration under the Pest Control Products Act (Canada) and those (other than DOMESTIC) with use directions that pertain only to the direct application of the pesticide to livestock.

[6].Bodo was contacted in fall 1995 to spray Paloma=s well site with Kerb 50, a non-persistent herbicide, which can be applied by a non-certified applicator under supervision of a certified applicator.  Since Mr. Heck and the certified applicator, Mr. Treat, were away at the time of the contravention, Bodo=s field foreman, Mr. Doug Stuckly, talked to Paloma before spraying the pesticide.  Mr. Stuckly, who is a farmer, obtained Tordon 22K from the M.D. of Provost, without providing proof of certification.  Bodo had never before, and has never since, used Tordon 22K.  Mr. Stuckly allowed Mr. Wetzstein, the non-certified applicator, to apply the Tordon 22K without being supervised, and without having read the label.

[7].   [7] The letter stated that with respect to s. 5(1), Bodo had applied a pesticide in a manner or place that causes or is likely to cause an adverse effect.  The Bodo employee had applied the pesticide in a broadcast manner over a large area instead of the specified spot treatment.  The pesticide application had caused an adverse effect to the cultivated cropland.  With respect to s. 16(a), a non-certified, unsupervised applicator had applied Tordon 22K when, under the label requirements, only an authorized applicator was allowed to make the application.

[8].   [8] A.R. 143/95.

 

[9].Under ss. 3(2)(a), the Aimportance of compliance with the regulatory scheme@ increased the penalty by $500.  Under ss. 3(2)(c), PCD was not aware of any steps taken in mitigation so this factor was neutral.  The penalty was reduced by $500 under ss. 3(2)(d) as Bodo had no enforcement history with AEP.  With respect to ss. 3(2)(f), the penalty was reduced a further $500 as the company had co-operated in the investigation.

[10].Mr. Heck explained the steps Bodo has taken since the contraventions to prevent recurrence.  He had discussed with his staff that if any new chemical was to be used, they must learn about it beforehand.  Mr. Heck stated that Bodo ensured that employees were knowledgeable about the chemicals.  Any restricted pesticides will only be applied by certified applicators (which is repeating a legal requirement).  Generally, he does not intend to use any more restricted chemicals.

[11].Mr. Heck provided to the Director a copy of a report dated July 16, 1998 prepared by AFC Agra Services Ltd., reviewing the damage due to chemical trespass on the site.

[12].   [12] The soil and vegetation samples did not indicate any presence of picloram.  Therefore, the potential for adverse effect for both contraventions was changed from major to moderate.  This change was based on the lack of confirmatory analytical evidence of picloram persistence, although picloram can significantly affect sensitive species below the analytical detection limit.

[13].   [13] Section 90(3) states:

90(3) In its decision the Board may

(a) confirm, reverse or vary the decision appealed and make any decision that the Director whose decision was appealed could make, and

(b) make any further order the Board considers necessary for the purposes of carrying out the decision.

[14].   [14] These purposes are:

 

2  The purpose of this Act is to support and promote the protection, enhancement and wise use of the environment while recognizing the following:

(a) the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society;

...

[15].   [15] Superior Vet & Farm Supply v. Alberta (Director of Pollution Control), 23 C.E.L.R. (N.S.) 193, 205;  Hayspur Aviation Ltd. v. (Director of Pollution Control Environmental Protection) 23 C.E.L.R. (N.S.) 177, 189.

[16].   [16] The label of Tordon 22K gives requirements for its application to Acultivated cropland.@ For a 13.5 acre crop, the maximum allowable area for treatment would be 0.7 acres, as per the label requirements.

[17].The Director=s silence on this issue at the hearing suggests that the Director has not applied any particular expertise in interpreting the term Acultivated crop-land@ in the Tordon 22K label. Under these circumstances, and given that the interpretation issue is akin to legal interpretation, the Board believes that is inappropriate to defer to the Director=s position on this type of issue.  Thus, this issue provides one of the exceptions to the Board=s otherwise deferential review of the Director=s overall administrative penalty assessment.

[18].Though it says to use it to control Apatches@ of weeds but only says Aspot treatment@ on cultivated land and with an authorized pesticide applicator.

[19].Either you have a licence or you do not.  The Tordon 22K label stated clearly that a licenced applicator was required; Bodo=s employee knew that he did not hold the licence yet he applied the pesticide anyway.  The harm that the legislature intended to address under section 16(a) was not having the licence.

[20].Had the certified applicator been present and read the label, he would have noticed that the label prohibits application of Tordon 22K to legumes.  Bodo=s uncertified employee applied Tordon 22K to alfalfa, which is a legume.  Legume is defined by Webster as: 1.  Any of a large family (Leguminosae) of herbs, shrubs, and trees, including the peas, beans, vetches, clovers etc., with usually compound leaves, flowers having a single carpel, and fruit that is a dry pod splitting along two structures: many legumes are nitrogen-fixing and often are used as green manure and for forage  2.  The pod or seed of some members of this family, used for food.  David B. Guralnik, Webster=s New World Dictionary, 2d ed. (Toronto: Nelson, Foster & Scott Ltd.) at 807.

 

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