Maine Organic Farmers and Gardeners Association
Maine BPC – June, July 2004

Maine BPC Reports \ BPC – June, July 2004

At its June 4 meeting, the Maine Board of Pesticides Control (BPC) granted a variance requested by the Maine Public Service Company; discussed its ongoing attempt to regulate indoor pesticide applications; addressed the status of pool operators as pesticide applicators; and approved staff-negotiated consent agreements with companies violating pesticide laws.

For many years the board has granted a variance to the Maine Public Service Company (MPSC), waiving the requirement to map all sensitive areas within 500 feet of the area being sprayed. However, the MPSC sprays stationary utility substation and storage areas, and the board realized that MPSC can meet the law’s requirements. The MPSC acknowledged as much last year but requested the variance again this year because it didn’t have time to finish the mapping. MPSC hires a licensed contractor to spray in 50 company-owned substations (about 40 of which will be sprayed this year) and storage yards and in 22 customer-owned substations; at the time of the meeting, only 12 substations had been mapped.

Glenn Nadeau, the vegetation management supervisor, did not expect the mapping to be finished until the end of summer, while herbicide applications were scheduled for early June. Nadeau, who is licensed as a master applicator, asserted that he is always on site during spraying and that, while formal maps of the substations and nearby sensitive areas have not been drawn, he knows the areas well and is aware of and accounts for all sensitive areas during spraying. He also offered to take further precautions, such as using herbicides at the lowest possible concentrations, using drift adjuvants and adjusting equipment to emit large droplets that are less likely to drift, and spraying close to the ground.

The MPSC has sprayed herbicides at these substations for over 30 years, so Nadeau believes that the few people living in the areas are well aware of the treatments; however, he offered to post “Caution: Pesticide Application” signs on each side of each substation during the application and for a week following. At first the BPC planned to require MPSC to post a legal announcement in local newspapers before spraying, but as the substations are mostly fenced yards well away from residential areas, it waived this requirement. The BPC granted the variance as requested but warned Nadeau that the variance would not be granted again.

Indoor Pesticide Applications

The BPC discussed alterations to the draft of proposed Chapter 26 regulations on indoor applications of pesticides. Staff members had inquired as to whether OSHA required spray contractors to provide Material Safety Data Sheets (MSDS) to building managers and building employees before spraying, in order to avoid passing a contradictory rule. OSHA regulations on this point were uncertain; the practice was generally expected but not formally required. Chief of compliance Henry Jennings pointed out that as long as such a regulation by the BPC did not actually conflict with an OSHA rule, a redundant standard would be harmless, and since the BPC had more contact than OSHA with commercial applicators, a BPC regulation would likely be more effective. The requirement for contractors to provide MSDS will therefore be added to the proposed chapter.

Staff members also conducted a label review of 11 products frequently used by Maine pest control operators to see whether the labels provided clear standards for indoor use. While most newer products give specific instructions for protecting hospital patients, older people, children and pets, some older products do not, and many products do not recommend a specific reentry time. Director Bob Batteese emphasized that the lack of label information regarding indoor application increased the importance of the board providing standard regulations for indoor applications, such as requiring a minimal reentry period of two hours.

Pool and Spa Operator Licensing

Gary Fish, the board’s certification specialist, proposed an amendment allowing public pool and spa operators to obtain an applicator’s license for microbial pest control by attending the National Swimming Pool Foundation’s Certified Pool/Spa Operator Program instead of taking the BPC’s licensing test. The Certified Pool/Spa Operator Program is currently recommended, but not required, by the Department of Health and Human Services. Fish took the course to assess its appropriateness and was generally impressed, although he informed the instructor that further information about pool disinfectants as pesticides and the necessity of adhering to product labels would be necessary before the course could be used to exempt pool and spa operators from the standard licensing program. Most pool operators now violate BPC laws, because they are not licensed pesticide applicators; Fish believes that if the licensing process were eased by allowing this course as a substitute, enforcement of the requirement would actually get stricter. The BPC would not receive any portion of the course fees, but as Fish pointed out, “We’re not getting any licensing fees anyway,” so the amendment would not result in a net loss of funds. At its July 21 meeting, the board approved a policy stating that it would exercise enforcement discretion only for pool and spa operators who are certified by the National Swimming Pool Foundation.

Stores and Inn Fined

The Board approved several staff-negotiated agreements with violators of pesticide laws. Ace Hardware Corporation, of Oakbrook, Illinois, distributes general use pesticides to hardware stores throughout Maine and usually obtains a license to do so legally. However, in 2001 and 2002, a change in personnel caused Ace to omit the licensing process. When alerted of its noncompliance, the company sent two years’ worth of licensing fees, but the check was returned because the Board cannot grant a retroactive license. To ensure that noncompliance is more economically inconvenient than compliance, the fine for nonrenewal is twice the license fee, or $40 per year. To acknowledge Ace Hardware’s attempt to rectify its negligence, the staff reduced the fine to $30 per year.

The BPC staff inspected the Bethel Inn and Country Club in 2002 and discovered that Evan Connors, the Inn’s director of maintenance, had been applying pesticides regularly to the Inn’s golf course, even though he had not renewed his applicator’s license since 2000. Connors was warned that he was violating the law and was advised to renew his license as soon as possible, before applying any more pesticides. A second inspection in 2003 discovered that Connors had continued to apply pesticides and still had not obtained his license. The BPC fined the Bethel Inn and Country Club $400.

In 2002, the BPC staff inspected the Corinth True Value store, which sells general use pesticides, and found several containers of Ortho Flea-B-Gon on its shelves. This product contains the active ingredient chlorpyrifos, an organophosphate that can severely overstimulate the nervous system. The EPA banned homeowner products containing chlorpyrifos in 2001, so Corinth True Value was issued a “Stop Sale, Use, or Removal” order on this product. A second inspection in 2003 found the same product still available to customers. To enforce the board’s ability prevent the sale of dangerous, prohibited substances, the Corinth True Value was fined $250.

Strong Public Opinion about Indoor Pesticide Applications and Notification

On July 21, the BPC held a public hearing regarding its proposed Standards for Pesticide Applications and Notification for All Occupied Buildings Except K-12 Schools. Loud opposition from the hospitality industry and issues with unclear directions on pesticide container labels for interior use have impeded the development of these standards, which are modeled on the board’s recently adopted integrated pest management (IPM) standards for schools, for the past 17 years. The standards require advance, written notification of a pesticide application to “routine occupants” of the building; require that IPM techniques be used; and affirm the right of building tenants to refuse a pesticide application to their living quarters. Exempted from regulation are owner-occupied, single-family homes, applications timed such that no person will enter the building until at least any reentry interval specified on the label or 24 hours have passed, and pesticide applications that have a lower risk of affecting building occupants (e.g. non-volatile substances placed in inaccessible areas such as wall voids).

This writer testified in favor of the proposed standards on behalf of MOFGA, pointing out the likely connection between pesticide use and common cancers and reproductive and developmental disorders, and citing a comprehensive review study on the health effects of pesticide exposure performed by the Ontario College of Family Physicians. The board was encouraged to strengthen the notification requirements, reminding members that while the science behind label-specified reentry periods if often incomplete, “notification is only if people will be present within the label re-entry period, or, if no reentry period is specified, within 24 hours. Thus it will only be in the case of a building that is occupied every day of the week that notification is likely to be required.” Given the potential consequences of pesticide exposure, she argued, stringent notification requirements would be an important protection of a building occupant’s right to choose.

Several members of the Stevenson family, which owns and staffs the company Modern Pest Services, were present, though in the interest of time, a few declined to testify. Scott Stevenson, a third-generation pest management professional, decried the standards’ “prohibition of preventative pest management” and “overburdening notification requirements.” He also pointed out that the standards’ definition of “crack and crevice” treatment (one of the treatment types exempt from the notification requirements) does not match the definition used in other regulations, a matter Board members promised to investigate. Richard Stevenson Jr. argued that the standards would pose a greater threat to public health than pesticide exposure, because the chemicals inhibit disease-spreading insects and rodents. He maintained that IPM practices would require much bigger quantities of pesticides in a single dose (after an infestation has gotten out of hand) than smaller, repeated, preventive applications. He also worried that because adulteration of food by insects violates the Maine Food Code, the IPM requirement might threaten the licensing of food establishments. Richard Stevenson Sr. also cited the legal liability of commercial food handlers if their products are contaminated by insects or rodents. He suggested that a sign stating “Pesticides Used Here” be a legal alternative to case-by-case notification, saying that it would be more practical.

Deb Hart of Hart Public Policy represented the Hannaford Brothers company. She complained that the requirement to notify building occupants of a pesticide application at least 24 hours in advance would prevent prompt action in the face of a pest infestation. She also worried that the IPM requirement to “identify the pest specifically and evaluate the population” before applying pesticides would not allow preventive applications to guard against repeated infestations (e.g., a predictable annual infestation of ants).

Patricia Aho testified against the standards on behalf of the Maine Oil Dealers Association, many of whose members operate gas stations and convenience stores. She reminded the board that while a requirement to conduct pesticide applications on “nights, weekends, vacations or other unoccupied periods” might be practical for schools, it was impractical for stores that are open 24-7. The association also feared that the requirement of turning off heating, ventilation and air conditioning systems during applications of aerosol, volatile liquid or dust formulations might damage products during extreme weather.

Dick Grotton, representing the Maine Restaurant Association, opposed the notification requirement, because it was equivalent to requiring restaurants to post signs on their doors reading, “We have bugs!” “Who in the room is going to pick that restaurant to go to dinner?” he asked. “Our customers don’t like bugs. If we can teach them that a few bugs are okay, then we can go somewhere, but we have a lot of education to do.” Grotton believed that a general notice sign declaring “Pesticides used in this establishment” would be a reasonable alternative. Board member Carol Eckert clarified the notification requirement, stating that “routine occupant” was not intended to include customers. (MOFGA’s testimony had encouraged the inclusion of customers in the notification requirement.)

Maggie Drummond testified in favor of the standards on behalf of the Toxics Action Center. She praised the IPM requirement as a step toward the state’s goal of reducing pesticide use and emphasized the importance of tenants’ and employees’ right to know and right to choose the activities conducted in their living and working spaces. She advocated that direct notification be required, especially in day care centers, even if the application occurred during an unoccupied period. “Parents have a right to choose day care centers based on their pest management,” she said. “And the state has a right – even a responsibility – to go beyond federal environmental regulations.”

Kathy Murray, an entomologist for the Maine Department of Agriculture, favored the standards as written. Citing pest management expert Dr. Robert Corrigan, she stated that the IPM requirements were fully justified, because preventive spraying is not a commonly acceptable practice for “sealing” a building against potential insect infestations, especially in low-pest areas such as Maine.

Other Business

Following Murray’s testimony the board closed the public hearing and turned to less controversial matters for its regular meeting. It voted to approve a request from the BASF Corporation to increase the surfactant rate allowed for the herbicide imazapyr when mixed with the herbicide glyphosate, a combination that is frequently used in forests when species are present that are difficult to control. Dan Simmonds, the board’s forestry expert, said that the only problem that might arise from an increased surfactant rate was an increased probability of tree crop death, which concerns applicators more than the board.

The board postponed correcting several sections of its various regulations until the staff had drafted definitions for several words and phrases.

The board considered a request from the town of Harpswell to amend its notification requirements for aerial pesticide applications. Harpswell citizens had voted in 2002 to ban the aerial application of diflubenzuron and tebufenozide, both insect growth regulators. An absentee landowner had contracted with an aerial pesticide applicator based in Presque Isle to spray diflubenzuron over 25 acres on Lower Goose Island in Harpswell, and the application occurred before either the landowner or the applicator was aware of the new municipal regulations. The Harpswell town administrator, wishing to avoid the repetition of such an unpleasant accident, requested that either the board or the commercial applicator be required to give written notification to any municipality in which an aerial spray project is planned. The board’s current policy requires that either the applicator or the landowner give written notification to the board and to the Maine Poison Control Center, as well as publish a notice in the newspaper or give notice to abutting property owners. The board was unwilling to take any notification responsibility upon itself. Board member and professional aerial applicator Andrew Berry urged that the contracting party, not the contractor, should be responsible for notifying the municipality if any such notification were required, although board member Carol Eckert pointed out that the board has more regulatory power over applicators than landowners. Unable to agree on an appropriate amendment, and generally agreeing that current regulations suffice, the board voted to take no action on Harpswell’s request.

The board approved a consent agreement negotiated with TruGreen ChemLawn of Bangor. This company had applied Riverdale TruPower Selective Herbicide to the lawn of a residence in Bangor without the authorization of the owner, who had repeatedly rejected sales calls from the company. The owner attempted to write off the mistake as a “freebie” until, in addition to worrying about her exposure to the lawn chemicals, also found that several of her ornamentals had suffered herbicide damage. The company was fined $1000 for the careless, negligent and faulty use of pesticides.

– Alice Torbert