Maine Organic Farmers and Gardeners Association
BPC Report – Winter 2005-2006

Maine BPC Reports \ BPC Report – Winter 05-06

Tax on Pesticides Considered

The Maine Board of Pesticides Control opened its July 29 [2005] meeting with University of Maine Cooperative Extension’s (UMCE) James Dill, who proposed funding pesticide education and disposal programs through a flat tax of 20 cents on pesticides packaged for home use. The surcharge would apply to all EPA-registered pesticide products, including algaecides, pool chemicals and DEET-based insect repellents, regardless of container size. The tax could generate as much as $600,000 to $1.2 million. Of the proceeds, 3% would go to the Integrated Pest Management fund, 52% to the BPC for educational programs and for collecting obsolete pesticides, and 45% to UMCE for educational programs. Funds beyond amounts required by agency budgets would be added to the General Fund. In some cases, funds would be earmarked for particular programs; for instance, the surcharge on DEET-based insect repellents would help fund education on vector-communicated diseases, such as West Nile virus.

Dill had proposed a similar surcharge in 2000, but the governor vetoed the bill, in part because the tax was placed on distributors. The current proposal would tax the end consumer at the point of sale. Board member Clyde Walton disputed this change, saying that government funds spent on pesticide disposal should come from those ultimately responsible for the products’ existence. Audience member Michael Legasse of Green Thumb Lawn Care objected to a state agency levying taxes on the general public; board chair Carol Eckert said that the tax was completely voluntary, as people can choose not to buy pesticides. A sign in stores’ pesticide display areas would alert consumers to the tax. The board generally approved of the proposal and asked Dill to meet with BPC staff to develop language for a bill to be sponsored by Rep. Richard Blanchard.

IPM for Public Buildings

The BPC conducted a workshop to prepare the proposed Integrated Pest Management (IPM) rules for public buildings other than K-12 schools for the public hearing in September. Changes initiated in this workshop were primarily rearrangements and clarifications. Exemptions for baits and gels were separated from exemptions for crack and crevice treatments, due to confusion expressed previously by pest control operators. A section regarding the use of nonvolatile materials in “inaccessible areas” was reworded to refer to “areas not readily accessible” — if the area were truly inaccessible, its treatment would be impossible.

Forestry Herbicide Approved

The DuPont company requested and was granted a Special Local Needs Registration for use of Assure II herbicide in hybrid poplar plantings in Maine. Assure II is a general use pesticide labeled “Danger” for eye exposure. Forester Ron Lemin of UAP Timberland, an Arkansas-based herbicide distributor, asserted that the herbicide would be applied only to grassy weeds during tree establishment and would not be used long-term. He noted that hybrid poplars are selected crosses, not genetically modified organisms.

‘No’ to General Use of Trichlorfon

Board toxicologist Lebelle Hicks summarized the Medical Advisory Committee’s 24-year-long review of trichlorfon, an organophosphate listed as limited use in Maine but available for general use in other states. Trichlorfon, a powerful mutagen that is highly mobile in water, has been used in Maine to control blueberry spanworm and spruce budworm. Users in other states have found it effective against grubs and chafers in turf, so Maine lawn care companies and golf course owners requested that the BPC list it as a general use substance. The BPC previously granted such companies several permits for its use in “emergency situations,” but committee and board members do not want to encourage expanded use of an organophosphate insecticide when the national trend is to phase out these chemicals, regardless of the status of a product in other states. Trichlorfon was left on Maine’s list of limited use pesticides.

ID Sites before Spraying

In response to complaints heard at the June meeting about lawn care companies applying pesticides to the wrong sites, the BPC developed a “Policy Concerning Positive Identification of Proper Treatment Site by Commercial Applicators.” The policy requires applicators to use at least one and preferably several “positive identification methods” before applying pesticides to any location. Examples include obtaining the customer’s electric meter number or visiting the customer and taking a photograph of the property before treatment. The policy passed unanimously.

Lawn Pesticides Applied During Rains

Board member Gary Fish reviewed a staff investigation into lawn care company activity during an unusually rainy week this May. During this time most soils were saturated, and significant rain fell almost daily. Half a dozen lawn care companies applied scheduled treatments anyhow, with TruGreen of Westbrook, the Lawn Dawg of Portland and Scotts of Hermon having the most applications per licensed applicator. The label on the most frequently used product, Ortho Weed B Gon Pro, states: “do not apply if rainfall is expected within 48 hours.” The label on the second most frequently used product, Chipco Merit, states: “applications should not be made when turfgrass areas are waterlogged or the soil is saturated with water.” Both products are labeled as “highly toxic to aquatic invertebrates.” Assistant Attorney General Mark Randlett pointed out that “should” statements on labels may not be enforceable, but the board agreed that the large number of applications during the rainy period surely contained some flagrant violations of label instructions and professional standards. Fish agreed to find a number of enforceable violations to pursue. On Chief of Enforcement Henry Jennings’ suggestion, the board will establish a stakeholders group to develop best management practices for applying pesticides in rainy conditions.

Insecticides vs. Lobsters

Two new members joined the Environmental Risk Assessment Committee as it begins to determine the threat posed to lobster populations by insecticides used against browntail moths: Leon Tsomides, a biologist with the Department of Environmental Protection who oversees the river and stream biomonitoring program; and the committee’s new toxicologist, John Wise, director of the Maine Center for Toxicology and Environmental Health at the University of Southern Maine. The committee also gained three ad hoc members for this study: BPC member Andy Berry, a commercial aerial pesticide applicator; and Carl Wilson and John Sowles from the Department of Marine Resources. Oceanographer Lawrence LeBlanc, who has studied the transport of organic chemicals in marine environments, will also assist with the study.

Board Approves Consent Agreements

Smith Farms Inc. of Presque Isle was fined $500 for damaging 180 pine trees belonging to a neighbor. The trees suffered severe desiccation when Smith Farms sprayed the herbicide paraquat on its broccoli fields. The farm was not charged the maximum $1500 fine, because BPC members considered the owner “generally very conscientious,” especially regarding worker safety.

Tina Hamilton of Scarborough was fined $100 for treating four lawns in 2004 without a license. She had neglected to renew her master applicator’s license because she was selling her business.

The Evergreen Golf Club in Rangeley was fined $200, because herbicides were applied to the grounds even though no one at the company had a commercial applicator’s license.

More on IPM in Public Buildings

The September 9 BPC meeting opened with the second public hearing this year for the proposed Chapter 26 rules for IPM in Public Buildings other than K-12 Schools. The current version of the rule requires building managers who contract with a pest control operator to provide one-time disclosure to all employees, nursing home residents, residents of long-term care facilities, apartment tenants, and parents of children in childcare facilities or nursery schools that pesticide applications may occur on their premises. Persons belonging to these categories may request that the building manager provide them with specific information before any applications. Use of nonvolatile products (e.g. gels and granular materials) is exempt from notification requirements if the product is placed in an area not readily accessible. Apartment tenants have the right to refuse pesticide application to their own living quarters until the pest problem becomes a public threat. The rule also requires that applicators use basic IPM practices, such as identifying the pest before beginning treatment, identifying conducive conditions in the environment (e.g. food left out), and using less toxic treatments first.

A previous version of the rule included prison inmates and short-term hospital patients among groups to be notified; required notification between 7 days and 24 hours before each application instead of one-time notification with the option for further information; required that sprayed areas remain vacant for 24 hours if no reentry period was stated on the label; and required stores that operated 24-7 to shut down before pesticides were sprayed. Pest control industry representatives submitted an alternate rule that, among other changes, substituted for notification requirements a sign to be posted at all entrances with a phone number to call for information regarding recent or future pesticide applications.

Many who had spoken at the previous public hearing reiterated their positions. Ted St. Amand, president of the Atlantic Exterminating Company, said on behalf of the Maine Pest Management Policy Coalition that pest control operators were upset that their proposed IPM rule had been “completely ignored.” He added that exempting 24-7 stores from the evacuation requirement was “unfair” and insisted that the requirement be removed from the rule entirely. He feared that increased restrictions on commercial spraying would encourage private individuals to “take matters into their own hands” by going to Home Depot, possibly increasing the overall use of pesticides.

David Lovejoy from the Maine Department of Corrections said that jails and prisons were unable to close units to evacuate prisoners from areas being treated (prisoners are exempt from the notification requirements). He and those working under him were “reluctant to take the time” to follow IPM techniques. “We want to be able to do whatever, whenever,” he said in reference to pest control. Jody Breton, also from the Maine Department of Corrections, said that she had no objection to the rules for employee notification but would like the board to provide examples of proper notification.

Richard Groton, head of the Maine Restaurant Association, complained of “rampant rulemaking,” noting that other states do not have similar requirements. “It’s all very well to be on the cutting edge,” he said, “as long as you can demonstrate that your rules have a purpose.” He appeared unimpressed by Eckert’s explanation that the purpose of the rule was to reduce occurrence of pesticide-related medical problems by reducing public exposure to the chemicals and to provide the public with the “right to know” about pesticide applications through notification. Groton asserted it would be impractical for pest control companies to notify Maine’s 50,000 businesses and institutions annually of their responsibility to notify employees, whether or not the operation sprayed pesticides. The board agreed that the rule should be reworded to clarify that only businesses and institutions currently contracting with a pest control company would need to be notified.

Patty Aho of the Convenience Store Association of Maine thanked the board for exempting 24-7 stores from the evacuation requirement, but objected to the change from 24-hour notice to one-time notice. Every storeowner she had contacted in her association preferred the 24-hour notice, because they rarely sprayed pesticides, and the older version imposed fewer notification requirements on them. She also asked the Board to provide outreach education to alert employers of the new required hiring practice.

Alice Percy spoke on behalf of MOFGA, commending the board for addressing the more reasonable concerns of the rule’s opponents without backsliding on its decision to implement IPM strategies throughout the state. She requested that the board, without weakening notification procedures, add to the rule a requirement that pesticide warning signs, including a telephone number for further information, be posted at entrances of public buildings.

Jim McGregor, executive vice president of the Maine Merchants Association, asked what would happen if an employee, upon notification of a pesticide application, refused to be in the vicinity or come to work. Eckert pointed out that, as with unexpected illnesses or family emergencies, the person could probably exchange shifts with a coworker.

Scott Stevenson of Modern Pest Services protested that the rule made extra paperwork for employers at hiring time and raised liability issues for pest control operators. He also disapproved of the ban on preventive spraying and feared that spraying on nights and weekends would break down communication between pest control operators and clients.

Will Everitt of the Toxics Action Center spoke in favor of the rule because it would reduce public exposure to pesticides through IPM techniques and notification. He recommended that the rule require that applicators give clients paper or digital copies of the Material Safety Data Sheet for the substance to be sprayed; clients would distribute copies to building residents. He added that when employees and others receive their one-time notification, building managers should be required to inform them exactly what further information they have the right to request, so that they know whether or not they are interested.

Matthew Davis of Environment Maine supported the purpose of the rule but said he preferred the version requiring 24-hour notice. He responded to St. Amand’s fear of increased use of pesticides by homeowners by suggesting that the board may have to further restrict the kinds of chemicals available off-the-shelf.

Jody Spear, speaking on behalf of the Citizens for Reform of Pesticide Spraying, approved of the Board’s direction but said that the rule did not go far enough toward protecting children and other vulnerable groups. “Building managers and exterminators can use their discretion about what elements of IPM are ‘appropriate’ and ‘practicable’…this is not IPM as I understand it.” She recommended Acadia Hospital’s IPM program as a model and requested that the board remove the exemptions for prisons, hospitals and 24-7 stores and reinstate the 24-hour reentry requirement. “I heard Mr. Groton say that Maine is attempting to plow new ground with this rule,” she said. “I think that would be the best possible outcome.”
Richard Stevenson Jr. of Modern Pest Services demanded that the board quantify the public demand for the rule and incorporate the industry’s proposals.

Finally Dick Stevenson of Modern Pest Services said that while the notification requirements were still problematic, he agreed with MOFGA in supporting pesticide warning signs at building entrances and volunteered to help the Board enforce such a policy by educating his clients.

Critical Pesticide Control Areas

The board discussed the Medical Advisory Committee’s (MAC) recommendations for individual applications for a Critical Pesticide Control Area. Earlier this year the board considered disallowing the institution of a Critical Pesticide Control Area for individual households, due to lengthy and problematic application processes; however, opposition was expressed at a public hearing, so the board decided to try to streamline and standardize the process instead. The MAC recommended that applicants be required to provide letters from two licensed healthcare providers giving information on specific substances (including solvents) and exposure levels thought to cause health problems. The provider would need to identify a “likely mechanism” linking the substance to the health condition. The MAC also recommended that it review the application prior to a full board review. Applicants would have to sign a waiver granting the board permission to review their medical history before they began the application process.

Will Everitt, Associate Director of the Toxics Action Center, presented TAC’s recent report “Catching the Toxic Drift: How Pesticides Use in the Blueberry Industry Threaten Our Communities, Our Water, and the Environment.” The report details reports of pesticide drift from blueberry operations and the danger of pesticide leachate contaminating drinking water supplies and aquatic habitats, and provides policy recommendations for containing the problem. The TAC enjoyed great success on the first of these objectives – to phase out aerial spraying – when Cherryfield Foods and Wyman & Sons, the state’s largest blueberry growers, agreed to switch to boom spraying when threatened with a lawsuit under the Clean Water Act. Other recommendations include phasing out use of organophosphates and increasing Maine citizens’ right to know about the use of pesticides in their communities.

Everitt said that many victims of pesticide drift whom the TAC had interviewed had been unaware that they should complain to the BPC. Although he celebrated the TAC’s victory over Cherryfield and Wyman’s, he noted that while boom spraying and ground spraying should reduce the risk of pesticide drift, they increase the risk to the applicator. He suggested that Maine mimic “body burden studies” conducted in Washington and California, to track toxic substances in farm workers’ bodies.

Matthew Davis of Environment Maine added that drift monitoring is crucial to measuring the effectiveness of the switch from aerial to boom spraying; the board has curtailed drift monitoring projects. “I’m disappointed to see it has stopped,” said Davis. “Because aerial spraying has not stopped.” He suggested that the board raise fees on “polluting industries” such as [conventional] blueberry growers to fund drift studies.

More Consent Agreements

Hendrix & Dail, a North Carolina spray contracting firm, was fined $300 for failing to have a commercial master applicator within six hours driving time when two commercial applicators fumigated soil for strawberry growers in Maine. The two operators had arranged to take the master applicator exam while in Maine; both failed the test but conducted the treatment anyway. The fine was reduced from $500, because the firm’s usual master applicator had been called to National Guard duty and some attempt had been made to replace him.

River Meadow Golf Course of Westbrook was fined $400 because a company employee applied an insecticide. No employee at the course held a commercial applicator’s license and no one recorded the application.

– Alice Percy