Maine Organic Farmers and Gardeners Association
BPC Report – March 2005

Maine BPC Reports \ BPC – March 05

March 2005

The BPC proposed removing protections in its regulations for individuals and families with health conditions that make them particularly sensitive to pesticide applications. Chapter 60 of board regulations currently enables persons to petition the board for designation of a Critical Pesticide Control Area (CPCA) when they can provide medical and/or epidemiological evidence that exposure to pesticides causes serious and/or longstanding health effects, or when pesticide applications may threaten groundwater, endangered species, significant wildlife habitat or natural resources. In such CPCAs, the board can impose special restrictions on the type or manner of pesticide application, prohibit pesticide applications altogether, or provide special notification provisions before pesticide applications.

In more than 20 years since this provision was enacted, only two such applications to protect sensitive individuals have come before the board. One, on behalf of a chemically sensitive child in Hope, Maine, was granted after a hearing in 2000. It was subsequently withdrawn when the affected family moved. The second was referred to consensus rulemaking procedures and subsequently withdrawn by the Gorham applicant. The board proposed amending Chapter 60 to make CPCAs available only to "groups of sensitive individuals in hospitals, nursing homes, residential care facilities or other complexes," not to single individuals or families. Robert Batteese, Executive Director of the Board, described reasons for rolling back protections: "(1) it has been a very disruptive and expensive process to thrust upon a neighborhood, (2) individuals have not been able to produce the level of verified medical and/or epidemiological documentation of their condition that was originally anticipated, and (3) .... the Health Insurance Portability and Accountability Act (HIPAA) makes it next to impossible to discuss an individual's medical condition in public meetings." (Jan. 20, 2005, e-mail)

On March 18, 2005, the board held a public hearing on the proposed change. Leslie Poole of Jefferson, grandmother of Codey Brown, the applicant in the Hope CPCA, argued that reducing protections for chemically sensitive individuals contradicted the board's statutory mandate to minimize reliance on pesticides. Without such protections, the only resort was to the courts, which were "much more expensive" for both applicants and their neighbors.

Jonesboro activist Nancy Oden contended that the rule change was "amoral and backwards ... No one should be exposed to pesticides. Not ever." The rule protects "endangered species," and Oden argued that "humans are endangered species" who should be protected against pesticides.

Another opponent, Brunswick resident Alison Johnson, has written two books related to multiple chemical sensitivity, Casualties of Progress and Gulf War Syndrome: Legacy of Perfect War. She has produced several videos about MCS and established a Chemical Sensitivity Foundation. Johnson argued that MCS is a growing problem and part of the panoply of symptoms of many sick veterans of the Gulf War. "I have yet to find a sick Gulf War veteran who does not have MCS," Johnson noted. Whereas Gulf War Syndrome was previously thought to be related to stress, it is now understood to involve "neurological damage due to toxic chemicals." Johnson also noted that the U.S. Department of Housing and Urban Development now recognizes MCS as a disability that should be accommodated by landlords. A chemical exposure may make a person with MCS "go downhill for days and weeks," and as the problem grows, Johnson argued, "the rest of the world has to begin to make life half way bearable for them."

Harborside resident Jody Spear argued that providing appropriate precautionary protections should improve relationships in a neighborhood. The state should afford the same rights to humans as they afford to endangered species. Spear believes that the "most egregious" part of the proposed rule was that it required MCS victims to be sentenced to end stage confinement" in an institution before they could receive CPCA protection.

Jane McCloskey of Deer Isle testified that she was one of the fortunate ones who had largely recovered from MCS, and that she had testified on behalf of Codey Brown and maintained a pen pal relationship with her. McCloskey described MCS as a "devastating illness, some say worse than cancer." She described people with chemical sensitivities as "speed bumps" in pesticide use: "… don't just jump to pesticide use as the only alternative ... slow down for me."

Sharon Tisher, who had been the pro bono attorney for the Brown family in its application for a CPCA in 2000, argued on behalf of MOFGA that it is "very ironic" that the proposed rule deprives individuals and families of the same rights afforded to fish in fish hatcheries; and, in a day when the benefits of living at home as opposed to institutionalization are well recognized, both for individual quality of life and costs to the public, that the rule would compel MCS victims to enter an institution before having any chance at protection. Such institutionalization was likely to be a "Catch 22" as chemically sensitive people would probably have more chemical exposure in an institutional setting.

Tisher argued that the rule was not "useless" or "irrelevant" just because it had been invoked only twice in 20 years. The potential for such protections undoubtedly provides sufficient leverage in many instances for sensitive individuals to make arrangements with their neighbors, precluding any need for a formal petition. Similarly, when the Brown petition in Hope was pending, the Brown family worked out an agreement with neighboring farmers to have no organophosphates sprayed for one summer – an agreement that may have significantly impacted Codey's health in the long term. In that petition, ample medical evidence supported the application, including supporting letters from three Maine treating physicians that Codey's continued health would be seriously impaired by further pesticide exposure.

The more recent, unsuccessful application in Gorham may have inspired this rule change, but was a case of "bad cases making bad law," Tisher argued. The applicant in that case was unwilling to have her medical history disclosed or discussed in a public setting. Tisher noted that, as in a civil lawsuit, when applicants put their medical condition in issue, they must anticipate a loss of privacy. The new federal privacy rules don't change that. The rule might be amended to specify that upon request of the board or an affected individual, applicants would have to sign a medical authorization providing for review of their relevant medical histories.

Darren Hammond of Harrington, a farm manager for Wyman blueberries who had attended the hearing on the Brown CPCA application, spoke in favor of the proposed rule, arguing that existing notification rules were adequate protection for chemically sensitive individuals. He suggested that people with MCS may be guilty of "doctor shopping" to get their medical opinions and noted that "the world is full of chemicals today, and any pesticides we use in blueberries is minimal compared to everyone's chemical exposures 365 days of the year."

In a conversation following the hearing, BPC Director of Enforcement Henry Jennings said that he supported a rule change, because in his experience of working with applicants and their neighbors, the process "exacerbated the polarity of the conflict and made both parties very angry with the other." The process of finding a middle ground was a good idea, "but trying to do this through rulemaking was not."

Reported by Sharon Tisher

© 2005. For information on reproducing this article, please contact the author.