Docstoc

APPEAL NO

Document Sample
APPEAL NO Powered By Docstoc
					                         Environmental Appeal Board


APPEAL NO. 98-PES-04(b)

In the matter of an appeal under section 15 of the Pesticide Control Act, R.S.B.C.,
1996, c. 360.

BETWEEN:               Interior Pest Control                             APPELLANT

AND:                   Deputy Administrator, Pesticide Control Act    RESPONDENT

BEFORE:                A Panel of the Environmental Appeal Board
                       Toby Vigod, Chair

DATE OF HEARING: October 15, 1998, concluded by way of
                 telephone conference call on October 20, 1998.

PLACE OF HEARING: Prince George, B.C.

APPEARING:             For the Appellant:      Michael Jaenicke

                       For the Respondent:     Jennifer McGuire

APPEAL

This is an appeal of the May 11, 1998 decision of Jennifer McGuire, Deputy
Administrator Pesticide Control Act, to suspend Service Licence No. 3169S (the
“Service Licence”) belonging to Interior Pest Control (“IPC”), a structural pesticide
control company owned and operated by Mike Jaenicke, and located in Prince
George, British Columbia.

Mr. Jaenicke is also appealing the decision of Ms. McGuire (as Pesticide Officer) to
issue him an Official Warning Letter, dated March 13, 1998. Mr. Jaenicke seeks to
have the letter removed from the file so that it may not be considered in any
further violation of the Pesticide Control Act Regulation by IPC.

The authority for the Panel of the Environmental Appeal Board to hear this appeal is
found in section 15 of the Pesticide Control Act and section 11 of the Environment
Management Act.

BACKGROUND

IPC has held a pesticide Service Licence since March 22, 1995. Between 1986 and
1995, the company was licensed under the name Central Interior Pest Control.
Service licences are issued and monitored by the Ministry of Environment Lands
and Parks (“MELP”), Pesticide Section, and must be renewed annually.

Prior to re-issuing service licences for the 1998/99 year, staff of the Omineca,
Peace, and Cariboo Region Pesticide Section undertook a routine audit of the 1997
service Operations Records of six structural pesticide control companies located in
APPEAL NO. 98-PES-04(b)                                                       Page 2
the Prince George area, including IPC. The audit of IPC revealed that 144 of that
company’s Records of operations involving the use of pesticides were incomplete
and/or inaccurate.

As a result of the information obtained in this audit, a ticket was issued to IPC (and
later withdrawn) for one count of incomplete records. Further, the Pesticide Section
issued an Official Warning Letter, dated March 13, 1998 and signed by Ms. McGuire
as Pesticide Officer, for the remaining 143 incomplete operations records. The
Warning Letter documents the non-compliance and is to remain on file to be
considered in any further violation of the Pesticide Control Act Regulation by IPC.
Also on March 13, 1998, Catherine Penner, Pesticide Technician, verbally informed
Mr. Jaenicke that his application for IPC’s 1998/99 Service Licence would be denied

By letter dated March 15, 1998, Mr. Jaenicke appealed to the Environmental Appeal
Board the issuance of the Warning Letter and the verbal notification of the Service
Licence denial.

On March 18, 1998, Ms. McGuire, acting in her capacity as Deputy Administrator,
notified Mr. Jaenicke that his application for re-issuance of the Service Licence
would not be denied, but would be processed as a routine renewal (contrary to
what Ms. Penner may have indicated). However, in light of concerns including the
inaccuracy and incompleteness of IPC’s 1997 Operations Records, Ms. McGuire
informed Mr. Jaenicke that a performance review in the form of a hearing before
her would be conducted on April 20, 1998. The stated purpose of the performance
review was to afford all parties the opportunity to present information upon which
Ms. McGuire could determine “whether or not to allow the re-issued [Service]
Licence for 1998/99 to remain valid, amend the conditions of the Licence, suspend
or revoke the Licence.”

On March 24, 1998, IPC’s Service Licence was issued for a one year term subject to
the following conditions, which were to be in effect pending the outcome of the
performance review:

      1.     Operations Records shall contain the following information for each
             operation involving the use of a pesticide, as prescribed by the
             Pesticide Control Act Regulation:

             a.    the client’s name and address, or the lessee’s name and address
                   and identifying details respecting the lease, as the case may be,

             b.    the supervising applicator’s name and certificate number, where
                   applicable,

             c.    the location and area where the pesticide is used,

             d.    the date and time of pesticide use,

             e.    the name of the pest or purpose for using the pesticide,

             f.    the common or trade name of the pesticide and its registration
                   number under the Pest Control Products Act (Canada),
APPEAL NO. 98-PES-04(b)                                                       Page 3
            g.     the method and rate of application and total quantity of
                   pesticide used, and

            h.     the prevailing meteorological conditions, including temperature,
                   precipitation and approximate velocity and direction of the wind.

      2.    Operations Records shall be submitted to the Pesticide Officer,
            Pollution Prevention, Pesticide Section, biweekly by 15:30 of every
            second Friday, for the duration of the licence term.

      3.    The Operations Records shall be reviewed by Pesticide staff with the
            owner of Interior Pest Control in attendance.

      4.    If no service was performed by Interior Pest Control within the given
            two week period, written notice to the Pesticide Officer shall occur
            biweekly and prior to 15:30 of every second Friday, for the duration of
            the licence term.

      5.    If Interior Pest Control fails to comply with any of the above
            conditions, the Service Licence will be revoked.

Based on the evidence presented at the performance review, on May 11, 1998, Ms.
McGuire released a lengthy written decision in which she presented her reasons for
suspending the Service Licence for 23 days, from 4:30 p.m., May 12 until 8:00
a.m., June 5, 1998, inclusive. Ms. McGuire also decided that reinstatement of the
Licence would be conditional upon satisfactory completion of the following:

      1.    Mr. Jaenicke must write and pass the structural applicator’s exam in
            Prince George.

      2.    IPC must re-submit complete and accurate Operations Records for the
            period of April 1, 1997 to March 31, 1998 and provide any additional
            information that may be requested to verify the entries on the
            Operations Record.

      3.    A request for a public land endorsement will be reviewed once the
            licence is re-instated if the request includes information satisfactory to
            the Deputy Administrator.

      4.    IPC shall submit at the time of licence reinstatement a draft Pest
            Management Plan.

      5.    IPC shall obtain and provide evidence of cover of public liability and
            property damage for itself and its employees by bond or insurance in
            an amount for any one claim of not less than $100 000 for bodily
            injury or death, and of not less than $25,000 for property damage.

On May 12, 1998, Mr. Jaenicke filed an appeal of Ms. McGuire’s decision to suspend
the Service Licence. With his Notice of Appeal, Mr. Jaenicke also requested a stay
of Ms. McGuire’s decision pending the hearing of this appeal before the
Environmental Appeal Board.
APPEAL NO. 98-PES-04(b)                                                       Page 4
In a decision dated May 19, 1998 (Appeal No. 98-PES-04) the Environmental
Appeal Board granted a stay of the suspension, and ordered that the Service
Licence continue to be in effect, subject to the conditions set out by Ms. McGuire on
March 24, 1998.

By letter dated June 29, 1998, the Ms. McGuire requested that the Board set aside
the Stay Order because in the interim, Mr. Jaenicke had failed to comply with the
conditions set out in that Order, and with the Pesticide Control Act Regulation (the
“Regulation”).

In a decision dated July 13, 1998 (Appeal No. 98-PES-04(a)), the Board denied Ms.
McGuire’s request, and ordered that the Service Licence continue to be in effect and
subject to the same conditions.

ISSUES

The decisions presently before the Panel are:

1.    the March 13, 1998 decision to issue the Official Warning Letter; and

2.    the May 11, 1998 decision to suspend the Service Licence and impose
      conditions on its reinstatement.

The following five concerns were the focus of the April 20, 1998 performance
review, the May 11, 1998 decision, and were the issues addressed by the parties
before the Panel. Additional evidence in relation to these issues that occurred after
the April 20, 1998 performance review was also placed before the Panel.

      a.     Whether Mr. Jaenicke has applied a pesticide other than in accordance
             with the pesticide label;

      b.     Whether Mr. Jaenicke has failed to record pesticide treatments in IPC’s
             1997 daily Operations Records;

      c.     Whether Mr. Jaenicke has inexcusably failed to obtain the required
             endorsement to IPC’s Service Licence to apply pesticides on public land
             in 1997;

      d.     Whether IPC’s 1997 Annual Summary of Pesticide Use accurately
             reflects the company’s activities during that year; and

      e.     Whether IPC’s 1997 Operations Records are inexcusably incomplete
             and/or inaccurate.

The Panel will address each of these issues in turn.

The Respondent also raised the issue of whether the official warning letter was an
appealable decision to the Board. This will be addressed in the Decision, below.

RELEVANT LEGISLATION

Section 4(1) of the Pesticide Control Act prescribes that a pesticide service licence
must be obtained by any person in the business of providing any service respecting
pesticides:
APPEAL NO. 98-PES-04(b)                                                         Page 5
    (1) Except as provided in the regulations, a person who does not hold a licence
        must not

        (a) carry on, or represent that the person is available to carry on, the
            business of selling pesticides, applying pesticides or providing any
            service respecting pesticides…

Section 7 of the Act provides:

    (1) A person must not apply, store, transport or possess a pesticide

        (a) for a purpose other than that for which it is sold,

        (b) in a manner other than that prescribed, or

        (c)if the manner of handling the pesticide is not prescribed, in a manner
            other than that recommended in the instructions that accompany the
            pesticide…

Section 12 of the Act lays out the powers of the administrator under that Act and
the Regulations, including:

    (2) The administrator has the powers necessary to carry out this Act and the
        regulations and, without limiting those powers, may do any of the
        following:

        …

        (b) suspend, amend, revoke or refuse to grant a licence, permit or
            certificate;

Section 13 of the Act deals with suspension or revocation of a licence:

    (1) The administrator may revoke, or suspend for the time the administrator
        considers appropriate, a licence, permit, certificate or approved pest
        management plan if the administrator considers

        (a) that this Act, a regulation or a term of the licence, permit, certificate or
            pest management plan is not being complied with, or

        (b) that the holder is applying, has applied or is handling a pesticide in a
            manner that is likely to cause of has caused an unreasonable adverse
            effect.

    (2) If the administrator revokes or suspends a licence, permit, certificate or
        approved pest management plan, the administrator may restrict, for the
        time the administrator considers appropriate, the holder’s right to apply for
        another licence, permit or certificate or to apply for approval of another
        pest management plan.

Section 10(2) of the Pesticide Control Act Regulation describes what authorization is
required before a person may apply pesticides on public land:
APPEAL NO. 98-PES-04(b)                                                                Page 6
       (2) No person shall use a pesticide

           (a) on public land,

           unless that person has received a use permit or the applicator certificate or
           service licence of that person is endorsed to permit the use.

Section 12 of the Regulation pertains to Operations Records. That section provides:

       (1)A person who is a service licensee … shall keep, with respect to each
          operation involving the use of a pesticide, a record that includes

            a. The client’s name and address, or the lessee’s name and address and
               identifying details respecting the lease, as the case may be,

            b. The supervising applicator’s name and certificate number, where
               applicable,

            c. The location and area where the pesticide is used,

            d. The date and time of pesticide use,

            e. The name of the pest or purpose for using the pesticide,

            f. The common or trade name of the pesticide and its registration number
               under the Pest Control Products Act (Canada),

            g. The method and rate of application and total quantity of pesticide used,
               and

            h. The prevailing meteorological conditions, including temperature,
               precipitation and approximate velocity and direction of the wind. 1

Section 13 of the Regulation provides that a summary of pesticide use must be
prepared annually:

         A service licensee shall prepare an annual summary of his records on a
         form prescribed by the administrator and submit it to the
         administrator at the time of application for renewal of his licence or by
         March 31 of the following year.

DISCUSSION AND ANALYSIS

(a)      Whether Mr. Jaenicke has applied a pesticide other than in
         accordance with the pesticide label in 1997;




1
    Meteorological conditions are not pertinent to structural pesticide applicators. As such,
    MELP does not require Records of this information, but in its place, asks structural
    operators to document on their Operations Records the active ingredient and percent
    guarantee of the pesticide used.
APPEAL NO. 98-PES-04(b)                                                      Page 7
Application rates, target species and approved purposes of regulated pesticides, as
determined by Health Canada, are specified on the pesticide label. The use of a
pesticide other than in accordance with the instructions on its label is a
contravention of Section 7(1) of the Act.

The Respondent submits that there have been at least three confirmed instances in
which Mr. Jaenicke has applied a pesticide in a manner or for a purpose that is not
contemplated by the label of that product. Two of these instances occurred prior to
the performance review and were considered at that hearing.

In the first, Mr. Jaenicke used Dursban as a “flushing agent” to remove bats from a
structure, and proceeded to kill the bats by physical means. Although the parties
are in agreement about the essential facts of this event, Mr. Jaenicke takes issue
with the fairness of the subsequent investigation of the bat kill. The Panel has
based its decision with respect to this incident and subsequent investigation on the
following findings of fact:

In approximately early March, 1997, Ms. Jana Aven, co-owner of the Windy Point
Inn (“Windy Point”), identified an unpleasant odour coming from one of the
structures on her property. Sometime within the next two months, she determined
that bats nesting in the structure were the likely cause of the smell.

In or around late May, Ms. Aven telephoned several local pest control companies,
including IPC, for estimates of what it might cost to solve the odour problem.
During this series of calls, one or more of the companies informed her that since
bats are defined as wildlife under the Wildlife Act, it is an offence to destroy them
without a special permit to do so, and further, that one may not apply pesticides to
destroy bats. One company estimated that it would cost approximately $2700.00
to scare the bats out of their nests and board up the area. The company informed
Ms. Aven that this procedure could not be carried out until late summer when the
young bats would be old enough to fly. In contrast, Mr. Jaenicke estimated that for
$500, he could solve her bat problem in short order.

Ms. Aven, anxious to be rid of the odour quickly and affordably, retained Mr.
Jaenicke to do the work, and agreed that there would be no record made of the
service. Neither Mr. Jaenicke nor Ms. Aven obtained a permit to kill the bats.

Sometime in or around June, Mr. Jaenicke attended Windy Point to exterminate the
bats. He explains that his procedure that day was to “flush” the bats out of their
nests with Dursban, and to physically kill the bats by swatting them out of the air
and stepping on them.

MELP became aware of this illegal bat kill sometime in October 1997, when so
informed by a former employee of Windy Point. An investigation lead by
Conservation Officer Tony Boschmann ensued.

In early January, 1998, Mr. Boschmann discussed the incident with Mr. Jaenicke.
The conversation was recorded on tape, and Mr. Jaenicke was read his Charter
rights prior to speaking. Although Mr. Jaenicke did not admit to having killed the
bats during that conversation, Mr. Boschmann suspected Mr. Jaenicke of the
offence.
APPEAL NO. 98-PES-04(b)                                                        Page 8
On January 7, 1998, Mr. Boschmann attended Windy Point to gather evidence
about the incident. He took swabs of the location where the bat kill allegedly
occurred, and interviewed the owners of the resort, Jerry and Jana Aven. Mr.
Boschmann first interviewed Mr. Aven in the restaurant at Windy Point, and he did
not take notes of that informal conversation. Later that day, Mr. Boschmann
interviewed Ms. Aven about the incident in a more private location. Neither of the
Avens was particularly forthcoming with information about the bat-killing incident at
that time.

Mr. Boschmann resumed his investigation at Windy Point on March 5, 1998. When
questioned on that day, Ms. Aven made a statement in which she admits to having
asked Mr. Jaenicke to kill the bats for cash, and without a permit. Ms. Aven was
not read her Charter rights prior to giving this statement, and has not been charged
for her part in the offence. Charges were subsequently laid against Mr. Jaenicke
with respect to the incident, and this illegal bat kill is now the subject of a criminal
proceeding.

Mr. Jaenicke admits that in killing the bats as described, he knowingly contravened
the Pesticide Control Act and the Wildlife Act. He argues, however, that the
investigation into the incident was biased against him and, as such, he should not
be punished for the infractions.

Gordon Kerr, a witness for Mr. Jaenicke, testified to having clearly overheard Mr.
Boschmann interview Mr. Aven on January 7, 1998 in the restaurant at Windy
Point. The witness testified that he understands from what he heard that Mr.
Boschmann was conducting his investigation strictly to obtain evidence to charge
Mr. Jaenicke for the illegal bat kill. The witness testified that during this
conversation, Mr. Boschmann made it clear, repeatedly, that he was not interested
in charging the owners of Windy Point in connection with the incident.

Jana Aven also appeared as a witness for Mr. Jaenicke. Ms. Aven testified that on
both January 7 and March 5, 1998, Mr. Boschmann assured her that Windy Point
would not be charged in connection with the event, and that the evidence he was
obtaining was for the purpose of charging Mr. Jaenicke only.

Mr. Jaenicke also argues that while special permits for destroying bats “can be
routinely obtained”, the permits do not provide for an acceptable method to actually
perform the kill. Without a recognized method by which to kill bats, Mr. Jaenicke
submits that the permits to do so are “useless”. Finally, Mr. Jaenicke contends that
prior to 1994, it was “accepted industry practice” to flush bats with pesticides to
remove them from a structure in order to make a kill possible.

The Respondent submits that the investigation into the bat-killing incident was not
biased. She presented evidence to establish that Mr. Boschmann is an experienced
Conservation Officer, trained in a variety of investigative techniques to be used to
obtain evidence from parties who may not always be forthcoming with information
or co-operative with an investigation. In contrast, neither of Mr. Jaenicke’s
witnesses has been trained in investigative procedure.

With respect to the January 7, 1998 interview of Mr. Aven in the restaurant, Mr.
Boshcmann testified that Mr. Aven repeatedly asked him if the owners of Windy
Point would be charged in relation to the bat kill. Mr. Boschmann testified that his
APPEAL NO. 98-PES-04(b)                                                       Page 9
response was that, at that point in the investigation, he was “not certain who would
be charged”, but that Mr. Jaenicke was the expert in pest control and that he had
been involved with an illegal bat kill in the past. Mr. Boschmann stresses that the
conversation with Mr. Aven was very informal and did not involve any “finger-
pointing”.

Mr. Boschmann also offered some explanation for the Board as to the nature of
investigations. The focus of any investigation, he said, is to obtain evidence and
that in order to do so, an investigative officer might make accusations or use other
techniques to give a person the opportunity to “come clean”. For this reason, Mr.
Boschmann explains that an investigative conversation could be easily
misinterpreted if overheard.

The Respondent also submits that notwithstanding what may have occurred during
the investigation, Mr. Jaenicke’s admitted use of a pesticide not in accordance with
the label is a contravention of the Act and is, therefore, a proper consideration for
subsequent decisions with respect to the renewal of the Service Licence. She
points out that Dursban is to be used to kill target pests, which do not include bats,
and is not intended for use as a “flushing agent”.

The Respondent entered as evidence two memos that address techniques for bat
control. The memos were prepared by MELP and sent to all Structural Control
operators, including Mr. Jaenicke, in October of 1994 and again in October of 1998.
The memos explain that it is an offence to kill or harass bats without a permit, and
that as there are no pesticides registered for use on bats, it is illegal to do so in
British Columbia. The memos suggest that the most acceptable solution to a bat
problem is to completely close all points of entry into the structure in which bats
have been nesting after they have migrated in the fall. The memos also state that
“while your customers may request that you perform a variety of services, it is your
responsibility as a certified pesticide applicator to ensure that you conduct services
that are safe and within the law.”

Susan Hoyles, former Pesticide Manager, testified that Mr. Jaenicke attended her
office in July, 1995 to discuss appropriate means of bat control.

The Respondent submits that with the 1994 memo, a ticket issued to Mr. Jaenicke
that year for another illegal bat kill, and his July, 1995 conversation with Susan
Hoyles, Mr. Jaenicke should have been fully aware that the practice of using
pesticides for bat control is not acceptable and constitutes a violation of the
Pesticide Control Act, regardless of what industry practice may have been in the
past.

The Panel has carefully considered the evidence given with respect to the
investigation into the incident. Although it is clear that Mr. Jaenicke was the focus
of Mr. Boschmann’s investigation, the Panel accepts that it was the prerogative of
Mr. Boschmann, a Conservation Officer with over ten years of experience, to
investigate the situation according to his best judgement. While the Panel
questions whether it is good judgement to conduct an investigative interview in a
public place, the Panel finds that Mr. Boschmann used his best judgement and the
information before him to make Mr. Jaenicke the initial focus of his investigation
into the incident. In any event, Mr. Jaenicke has admitted that he acted unlawfully
APPEAL NO. 98-PES-04(b)                                                      Page 10
in using a pesticide not in accordance with the requirements on the label, and that
he deliberately tried to hide this information from MELP.

The Panel finds that Mr. Jaenicke cannot exonerate his own actions by
demonstrating the complicity of another person. The incident amounts to a serious
violation of the Pesticide Control Act and was properly considered in the Deputy
Administrator’s May 11, 1998 decision.

The Respondent also presented evidence of a second confirmed incident in 1997 in
which Mr. Jaenicke twice used a pesticide other than in accordance with the label.
In this instance, Mr. Jaenicke used Dragnet in an attempt to treat lice and scabies
in a Prince George residence. Ms. McGuire submitted that lice and scabies are
pests of the human body and are not included on the Dragnet label as targets
species for that pesticide.

Further, the Respondent presented evidence that, subsequent to the performance
review, Mr. Jaenicke continued to use pesticides contrary to the label requirements.
Specifically, it has been confirmed that he performed two residential treatments in
August and September of 1998 for pests that he could not identify. Treatment for
unidentified pests is contrary to pesticide label requirements. MELP became aware
of these treatments when, after neither of his two treatments was successful in
solving the pest problem, Mr. Jaenicke finally referred his clients to MELP for
assistance.

Mr. Jaenicke does not deny conducting these treatments, but argues that upon his
clients’ insistence, he agreed to apply the chemical for their “peace of mind”.
Moreover, he contends that although the target pests may have been unidentified,
he did not apply the pesticide in a manner contrary to the label. That is, the
application was not dangerous because it was carried out in a way that would be
appropriate for a residential treatment for fleas.

The Panel finds that any use of a pesticide contrary to the instructions on the label
is a violation of the Act, and therefore unacceptable. On the evidence presented,
the Panel finds that IPC has used a pesticide not in accordance with its label on at
least three occasions since 1997, twice before the performance review and once
following it. On each of these occasions, IPC has contravened section 7(1) of the
Act.

(b)   Whether Mr. Jaenicke has failed to record pesticide treatments in
      IPC’s daily 1997 Operations Records.

Section 12 of the Regulation requires a service licencee to document each pesticide
application. All of these “Operations Records” are to be held by licencees for a
period of three years and to be made available to the Ministry for inspection at any
time. MELP generally does not require the submission of the Operations Records
unless it is a condition of a licence or is in conjunction with an audit. MELP provides
licencees with a form on which to keep their Operations Records, and the
instructions on the bottom of the form direct that the record is to be completed at
the time of each operation.

Prior to the performance review, MELP had received confirmation of several
pesticide applications by IPC in 1997 that had not been recorded in its Operations
Records. These included the use of Dursban as a “flushing agent” at Windy Point,
APPEAL NO. 98-PES-04(b)                                                       Page 11
and the use of Dragnet to target lice and scabies in a Prince George residence, as
described above. Mr. Jaenicke has admitted to deliberately failing to record the
former treatment in order to leave no “paper trail” of the service. He gave no
excuse for failing to record the latter treatment, but did document it after receiving
inquiries from MELP. In addition, MELP had confirmed another 1997 pesticide
application by IPC at Royal Oak Mines, Kemass Mine site, for which no record was
made until MELP made inquiries into the treatment.

Based on this evidence, in her May 11 decision, Ms. McGuire found that “pesticide
treatments are being conducted by IPC and are not being recorded. This neglect in
record keeping may place the environment and the public at risk.” Ms. McGuire
also made note that it generally appears to be those applications which are in
contravention of the Act that are not recorded. She confirmed that Mr. Jaenicke
understood the requirements of the legislation with respect to record-keeping, and
she therefore concluded that the non-compliance was a “deliberate/intentional
action”.

The Respondent now submits that, since her May 11 decision, Mr. Jaenicke has
continued to forsake the requirement to document each of his pesticide
applications. She introduced evidence of two unrecorded applications at another
Prince George residence for “unknown pests” (on August 10 and September 5,
1998), and evidence of another unrecorded application of Dursban at Strategic
Property Management on May 10, 1998. Mr. Jaenicke documented the latter
application on June 30, 1998, after MELP inquired into the treatment. However,
MELP has received verbal confirmation that the treatment was for tent caterpillars
on ornamental trees, and not for ants as Mr. Jaenicke has recorded. The
Respondent notes that treatment for ornamental tree pests is outside of the scope
of certification of Mr. Jaenicke’s structural general applicator category, and is to be
carried out by applicators, who are “landscape general” certified.

Mr. Jaenicke does not deny having conducted any of the above-noted treatments,
but does dispute the Respondent’s allegations before the Panel that IPC may have
carried out further unrecorded pesticide applications in 1998. Mr. Jaenicke also
points out that he has recently taken measures to improve his record-keeping.

The Panel finds that Mr. Jaenicke understands the legal requirement that records
are to be kept of each application, and that in spite of this, he failed to record
pesticide treatments in daily Operations Records on various occasions, contrary to
Section 12 of the Act. The Panel finds that Ms. McGuire properly considered this
lack of documentation in coming to her May 11, 1998 decision.

(c)   Whether Mr. Jaenicke inexcusably failed to obtain the required
      endorsement of IPC’s Service Licence to apply pesticides on public
      land in 1997.

Section 10 of the Regulation provides that pesticides may not be applied to public
lands without a special permit or endorsement to do so.

The audit of IPC’s 1997 records revealed that Mr. Jaenicke performed an application
at the Burns Lake Public Library in December 1997 without the proper authority.
Although prior to the treatment, he had applied for a public land endorsement, his
APPEAL NO. 98-PES-04(b)                                                    Page 12
application had been refused for lack of information. MELP had requested
additional information that Mr. Jaenicke did not provide.

Mr. Jaenicke does not deny that he conducted this treatment at the Burns Lake
Library without proper endorsement. His position is that MELP’s provincial policy is
not applied in a consistent manner from region to region, making it difficult for
companies to operate. He argues that as a licencee, he was receiving no clear
policy from MELP with respect to endorsement requirements, and that he cannot be
expected to comply with an inconsistent and variable policy. As an example, Mr.
Jaenicke argues that the information he was asked to include on his 1997
application was not required of companies in the lower mainland, and indeed, had
not been required of him when he has been granted endorsements in past years.

In her May 11 decision, Ms. McGuire noted that the endorsement policy has not
changed since 1985, and that it is possible that Mr. Jaenicke mistakenly viewed the
requirements for specific information as a policy change. She goes on:

      However, the requests for information were necessary in order for the
      Deputy Administrator to be assured that the treatments would not
      cause unreasonable adverse effects on the environment or jeopardize
      public safety. The letters sent by MELP to Interior Pest Control in
      response to the company’s requests for endorsement were clear as to
      what additional information was needed.

The Respondent explained to the Panel that Regional Pesticide Sections are
responsible for issuing public land endorsements. Because this is done at the
discretion of the Deputy Administrator, particular requirements for endorsement
may vary somewhat between Deputy Administrators in differing regions, and each
Deputy Administrator is accountable to the public for pesticide use approved under
his or her authority. The Respondent submits that it is not uncommon for licencees
with poor track records to be asked to submit additional information in their
endorsement applications, as compared with companies in consistent compliance.
The information requirements placed on Mr. Jaenicke in 1996 and 1997 were more
onerous than they had been in the past, and may have been more onerous than
those placed on other companies, because the Ministry was particularly concerned
about IPC’s performance record at that time.

The Respondent submits that so far in 1998, Mr. Jaenicke appears to have followed
the requirements for public land endorsements. Mr. Jaenicke submits that he has
willingly complied in 1998 because he has been provided with a standard
application form, which gives a “reasonable” list of information requirements (less
than what was required of him in 1996 and 1997).

The Panel finds that Mr. Jaenicke knowingly contravened the Regulation in applying
pesticides at Burns Lake Library without an endorsement. The Panel recognizes
that the regional application of a provincial policy sometimes may seem confusing
to licencees, but notes that such regional application allows for the flexibility
necessary to address different issues across the province. There was evidence
before the Panel that IPC has applied pesticides on public land without an
endorsement on more than 20 occasions in the past. Given this, and given the
discretion afforded to the Deputy Administrator to administer the public land
endorsement policy, the Panel finds that the additional information requested of Mr.
APPEAL NO. 98-PES-04(b)                                                      Page 13
Jaenicke in 1997 was relevant to making an endorsement decision, and that the
request was reasonable.

(d)   Whether IPC’s 1997 Annual Summary of Pesticide Use accurately
      reflects the company’s activities during that year.

Section 13 of Regulation requires that all service licensees prepare Annual
Summaries of their records to be submitted to MELP with applications for licence
renewals.

The Respondent submits that Annual Summaries are concise reports of the total
quantity of pesticides applied in a given year, as recorded in the Operations
Records. The summaries enable the Ministry to monitor the use of pesticide
products, locations receiving treatments, and to ensure compliance with the Act and
Regulation. The Respondent submits that it is common practice for licensees to
arrive at the amounts noted in the Annual Summaries by tallying the quantity of
pesticide used, as indicated in their Operations Records.

In her May 11, 1998 decision, Ms. McGuire found that IPC’s Annual Summary of
pesticide use for 1997 did not include entries for Precor (PCP 21573) and Quintox
(PCP 19732) when the Operations Records indicated that these substances had
been applied.

Mr. Jaenicke admits that Annual Summaries are legal documents, signed and
verified as true by the licencee that compiles them. He argues, however, that his
omission of Quintox and Precor from his 1997 Summary is negligible and should not
weigh too heavily against him in decisions with respect to his Service Licence.
Moreover, he argues that the omissions can be explained by considering his method
of quantifying the amounts included on his Annual Summaries. Rather than tallying
the amounts included on the Operations Records, which he has always entered as
“standardized estimates,” he attempts to achieve a more accurate quantification by
counting the number of empty pesticide containers in his storage facility.

The Panel finds that the omissions from IPC’s 1997 Annual Summary amount to a
violation of the Regulation. This violation may be of less concern than some other
violations considered in this appeal, but still tends to confirm that IPC is a chronic
offender that does not conduct its business with adequate consideration for the
requirements imposed by the Act and Regulation.

(e)   Whether IPC’s 1997 Operations Records are inexcusably incomplete
      and/or inaccurate.

As is noted earlier in this decision, the maintenance of accurate and complete
records of pesticide applications is a legal requirement of all service licensees under
the Regulation. These Operations Records are important in that they enable MELP
staff to monitor pesticide use.

The audit of IPC’s 1997 Operations Records revealed 144 incomplete or inaccurate
Operations Records for that year. Specifically, the records were found to be
missing one or more information factors including the applicator’s certificate
number, the time of pesticide use, the Pest Control Product (PCP) number, and the
method of application. As well, the active ingredient generally was not recorded on
the records, and the “percent guarantee” was frequently recorded incorrectly.
APPEAL NO. 98-PES-04(b)                                                   Page 14
Mr. Jaenicke does not deny that his Operations Records were inaccurate and
incomplete. To the contrary, he strongly contends that in more than 10 years as a
structural pesticide operator, not once has he submitted an Operations Record that
is correct. Despite consistent non-compliance in this respect, Mr. Jaenicke submits
that MELP has continued to accept incomplete and inaccurate operations records,
establishing a “pattern of acceptance” which has lead him to believe that he was
filling out the records adequately, if not correctly. Mr. Jaenicke contends that
because of its failure to do so in the past, MELP has now “lost its right to act
punitively in this matter”.

In order to demonstrate to the Panel his consistent non-compliance, Mr. Jaenicke
argues that he has always included “standardized” amounts to reflect the “total
product used”. Mr. Jaenicke submits that he was trained to make these standard
estimates at the beginning of his career upwards of 15 years ago, and MELP did not
inform him until 1998 that it considers this to be an improper practice. Similarly,
Mr. Jaenicke points to a space on the Operations Record form in which the active
ingredient of a pesticide, and its “percent guarantee”, are to be recorded. Mr.
Jaenicke testifies that since he has misinterpreted what “percent guarantee” refers
to, he has never recorded it correctly on his Operations Records. Mr. Jaenicke
submits that since MELP has recently instructed him as to how to correctly fill out
the form, he has consistently done so.

The Respondent submits that in the past 12 years, Mr. Jaenicke has had a very
poor performance record. Susan Holmes, Pesticide Manager from December 1988
to June, 1996, testified that in her experience, Mr. Jaenicke’s company had “by far”
the most instances of non-compliance, as compared with other licencees at that
time.

The Respondent introduced significant documentary evidence and testimony from
staff, present and past, to demonstrate that the Pesticide Section has made
repeated efforts over the years to correct Mr. Jaenicke where his recording efforts
fall short. These efforts to help bring him into compliance have predominantly been
in the form of letters and discussions with Mr. Jaenicke about various issues
including Operations Records. She submits that had Mr. Jaenicke been more co-
operative and receptive to MELP’s attempts at communication over the years, he
likely would have received even more personalized instruction from MELP staff.

However, in all the years of scrutiny of IPC’s records, the Respondent acknowledges
that MELP staff may not have recognized that Mr. Jaenicke has been using
standardized quantities in IPC’s Operations Records, nor that he has been
consistently recording the percent guarantee incorrectly. The Respondent accepts
that Mr. Jaenicke may not have been given specific instructions with respect to
these aspects of the records until 1998.

The Respondent introduced evidence to demonstrate that after the performance
review and the May 11, 1998 decision, approximately 20 % of IPC’s 1998
Operations Records up to September 24 are still incomplete by one or more factors.
This includes at least two confirmed instances in which Mr. Jaenicke has
deliberately included false information on his Operations Records.

Mr. Jaenicke gives no explanation for the missing and false information, but
submitted that he has attempted to bring himself into full compliance with the
APPEAL NO. 98-PES-04(b)                                                      Page 15
Regulation with the re-programming of his hand-held computer, an improved filing
system, and more detailed invoices.

The Panel finds that although the Ministry has often accepted deficient Operations
Records over the years, it has made reasonable efforts to bring Mr. Jaenicke into
compliance. Moreover, by accepting incomplete or inaccurate records in the past,
the Ministry has not lost its right to take enforcement action now, and Mr. Jaenicke
may not use the Ministry’s past acceptance of his records as a defence or excuse
for his contraventions of the Act and Regulation in 1997. The Panel acknowledges
the recent improvement in Mr. Jaenicke’s record keeping, but notes that IPC’s 1998
Operations Records still are not complete in all respects.

DECISION

In coming to its decision, the Panel has carefully considered all evidence presented
to it, whether or not specifically reiterated here.

Mr. Jaenicke seeks to have the March 13, 1998 Warning Letter expunged from the
record so it cannot be considered in further decisions against him.

The Respondent submits that the Panel has no jurisdiction to consider the Warning
Letter. She argues that because Mr. Jaenicke did not submit a statement of points
with respect to this issue, the Ministry was not given the proper opportunity to
prepare its response. Second, the Respondent submits that as the letter was
signed by the Pesticide Officer rather than the Deputy Administrator, it is not
appealable. Finally, she argues that the issuance of the Warning Letter was simply
a culmination of a routine audit, provided “as an advisement to IPC” pursuant to
general enforcement policy, and not a seizure or prevention order under section 10
of the Act.

Mr. Jaenicke made no submissions on the Panel’s jurisdiction with respect to this
issue.

Section 15(2) of the Act provides that “any person may appeal a decision of the
administrator under this Act, or of any other person under this Act, to the appeal
board.” Section 15(1) defines “decision”, for the purposes of this section, as
meaning “an action, decision, or order”.

After reviewing the legislation, it appears to the Panel that the relevant question is
not whether the Warning Letter constituted an order pursuant to section 10, but
whether the issuance of the Warning Letter was a “decision” as defined under
section 15 of the Act. This issue was not fully argued before the Panel.

The Panel finds that although the statutory definition of “decision” is broadly
defined to include an action, decision or order, this must mean an action, decision
or order made under the authority of the legislation.

The Warning Letter was an administrative measure to document the result of the
audit, and to advise Mr. Jaenicke of that result. Therefore, the Panel finds that the
issuance of the Warning Letter in this case was not a “decision” under the Act, and
for this reason is not appealable under the Act. The Panel finds that it has no
jurisdiction to grant Mr. Jaenicke the remedy he seeks with respect to this issue.
APPEAL NO. 98-PES-04(b)                                                     Page 16
The Panel notes, however, that even if it does have jurisdiction to consider the
Warning Letter, it would not remove the Letter from the file. The Warning Letter is
appropriately on the record for future consideration in any further administrative
actions against IPC.

Mr. Jaenicke also seeks to have both the suspension and the conditions on
reinstatement of his Service Licence cancelled. In the alternative, Mr. Jaenicke
submits that if the Panel should find that a suspension is warranted, the suspension
should take place in December, his slowest business period, for least financial
impact.

The Respondent seeks to have the 23-day suspension of the Service Licence upheld
or extended. In light of the Board’s wide range of remedial jurisdiction in this
matter, the Respondent also requests that, pursuant to section 13 of the Act, the
Panel restrict Mr. Jaenicke’s right to apply for another service licence. Finally, the
Respondent submits that since her office has limited staff to manage Mr. Jaenicke’s
activities, the Panel should set out a “probationary period” during which Mr.
Jaenicke would have to demonstrate that he is capable of maintaining compliance.
The Respondent made no submission as to whether the conditions imposed on
reinstatement of the Service Licence should be upheld, presumably because they
already have been largely complied with.

The Respondent adds, that Mr. Jaenicke’s deliberate disregard of the Act and
Regulations is “extremely disturbing” to MELP. The fact that he continues to rely on
information provided by other parties, and training he received some 12-15 years
ago, rather than accepting the guidance now provided to him by MELP is worrisome
given the nature of the effects of the chemicals he works with on the environment
and on human health. The Respondent notes that MELP is concerned about liability
issues to the government and to Mr. Jaenicke surrounding the continuation of his
noncompliant practices. Finally, the Respondent notes that MELP has, in fact,
recognized Mr. Jaenicke’s consistent non-compliance with the Act and Regulations
for the past decade or more, and has had annual contact with him since 1989 in an
effort to work with him to achieve improvements.

In his May 12, 1998 Notice of Appeal, Mr. Jaenicke states:

      This whole issue was because of no communication from the Ministry
      regarding any defects in my procedures. A simple conversation from
      J. L. McGuire could have cleared this all up instead of pulling my
      Service Licence.

The Panel finds that a “simple conversation” would not have sufficed. The evidence
confirms that past conversations between MELP and Mr. Jaenicke have not been
adequate to bring IPC into compliance with the legislation. The Panel is concerned
that Mr. Jaenicke does not demonstrate respect for the fact that the chemicals he
works with can be hazardous to both the environment and human health. Further,
even after the performance review and Ms. McGuire’s release of her May 11, 1998
decision, Mr. Jaenicke has continued to be in non-compliance with the legal
requirement to record all pest applications, notwithstanding his assurances that he
has taken measures to improve his record-keeping.
APPEAL NO. 98-PES-04(b)                                                     Page 17
The Panel finds that the suspension of the Service Licence was an appropriate
enforcement action in this case.

The Panel finds that the suspension of IPC’s Service Licence should
continue from 8:00 a.m., November 16, 1998, to 4:30 p.m., December 1,
1998. In coming to this decision, the Panel has taken into consideration the fact
that seven days of the original 23 day suspension passed while the parties were
awaiting the Board’s Stay Order (May 13 – 19, 1998, inclusive.)

The Panel will not impose any probationary period as requested by Ms. McGuire, nor
will it restrict Mr. Jaenicke’s right to apply for future service licences, because the
Deputy Administrator is free to renew or not renew, as she sees fit, on any
application for renewal that IPC may submit for the 1999-2000 year.

The appeal is denied.

Toby Vigod, Chair
Environmental Appeal Board

November 6 1998

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:48
posted:8/10/2011
language:English
pages:17