Maine Organic Farmers and Gardeners Association
Maine BPC - Summer 1998

Maine BPC Reports \ BPC - Summer 1998

Board of Pesticides Control: Pesticide Notification Registry Takes a Tailspin

With each round of public hearings on the proposed pesticide notification registry, well organized opposition to the proposal has induced the Board of Pesticides Control (BPC) to further contract the scope and usefulness of the rules. At a February 27 work session, the Board approved two new gaping exemptions to the rules and raised fees to a point that would be unaffordable for most people. At a public hearing on the new revisions on May 1, the Board met strong public opposition.

Registry exemptions

Following the organized opposition of the agricultural community at the first public hearing on the proposals in June, 1997 – with the sole exception of MOFGA, which strongly supported the proposed registry — the Board voted last August to broadly exempt agriculture from the registry requirements (Dec/Feb. 98 MOF&G). People who wanted notice of pesticide applications by neighboring farmers were relegated to the less formal provisions of Ch. 22 of BPC regulations, which allow any property owner or tenant to request notice of any outdoor pesticide application that may occur within 500 feet of his or her home. The notification requirement may be satisfied, however, by only one notice for a growing season, stating the “approximate” date(s) when pesticides will be applied. If the property owner is dissatisfied with this notice, additional agreements may be negotiated, and a complaint may be made to the BPC if the parties are unable to agree about the adequacy of notice. By contrast, the pesticide notification registry rules require that time of application be pinpointed within a 24 hour period, and be given at least six hours and not more than 14 days in advance. By leaving much more up to negotiation between the parties and case-by-case determination by the Board, the informal rules are arguably less “user friendly.” (For one example of when they completely failed, see Enforcement Actions, below).

The agricultural exemption was spurred by farmers’ testimony about the difficulty of precisely predicting application times and products given variations in weather and field conditions, and the mandates of IPM techniques. Even without formal procedures for agricultural notification, much pesticide application in the state was still covered by the proposed rules. After virtually no discussion at the February 27 meeting, however, the Board voted two additional huge exemptions to the rules – for all rights-of-way applications, including MDOT highway applications and railway applications, and for all structural pest control applications within 8 feet of the customer’s residence (although staff member Tammy Gould commented that her residence was within 8 feet of her neighbor’s home. The Board did not consider the possibility that the tenant in the very building receiving the structural application could be a member of the pesticide registry and be unaware of an application contracted by a landlord). With these exemptions, the pesticide applications subject to the registry were essentially reduced to cosmetic turf and ornamental applications, either by homeowners or commercial applicators, and to forest applications.

Higher Fees

Substantial discussion did precede a Board decision at the same meeting to raise proposed fees for the registry. The originally noticed fee structure, through the two previous public hearings, had been $10 for initial registration and $5 for each year thereafter. People who could produce medical evidence of special chemical sensitivity could petition the Board for a larger perimeter area of required notification (250 feet vs. 150 feet from their property boundary). At the February 27 meeting, the Board voted 4 to 2 to raise the fees to $35 per year for anyone who “just wanted to be on the registry” but could not produce medical evidence of a special chemical sensitivity, and $10 per year for the chemically sensitive. The Board’s about face on the fee issue appeared inspired by comments of former Board chairman Vaughan Holyoke, Glenn Nadeau of the Maine Public Service Company (which was in any event exempted by other rule modifications), and Dave Bell of the Maine Blueberry Commission at the January 30 public hearing (March/ May 98 MOF&G) . These witnesses had warned the Board that the registry could be misused by anti-pesticide activists to harass pesticide applicators. Holyoke and Nadeau had argued that the fees should be substantially raised to discourage people who “just wanted to be on the registry,” or that the registry should be opened only to people with medical documentation. In the February 27 discussion, Board chair Tom Saviello embraced the concept of a two-tiered fee structure, proposing $50 to $60 for people who “just want to be on it” (although the highest fee proposed at the public hearing had been $35). Saviello argued, “our goal is to protect people who need to be protected,” presumably only those who could produce evidence of acute chemical sensitivity. While Saviello exempted MOFGA (”one organization that’s rational in the way they’ve approached this”) from his concern about harassment, he confessed to having visions of activists “sitting in the malls and getting signatures for the registry,” simply to make pesticide applications more difficult. (Saviello failed to mention that the considerable paperwork required under the proposed rules, including listing the names and addresses of all affected property owners, and the $10 initiation fee, might make this scenario unnecessarily alarmist.

Potato farmer and Board member Jeff Smith joined in Saviello’s concerns that the registry has the “potential to be misused … causing impediments on pesticide usage.” When Alan Lewis countered that the registry doesn’t prevent any use, just requires notice, Smith replied, “If you carry it to the limit of the imagination of what could be done, it might prevent effective use.” Smith felt that much opposition to pesticide use is “philosophical rather than having a scientific basis.” Without scientific evidence of harm, Smith queried, “How do we ascertain whether we’ve protected anybody?”

Lewis argued that fears that the registry would be used to harass people and interfere with their reasonable pursuit of a livelihood were considerably less once agriculture had been exempted from the registry: “Ag is totally different from pesticides used for aesthetics or cosmetics.” Lewis also argued that people who had “philosophical” concerns about pesticides shouldn’t be discriminated against: “Why are we opposed to people being opposed for philosophical reasons? The lesson from science is that there is no such thing as absolute proof. We can put together a very long list of pesticides that the best evidence told us were safe, and now we all learn the contrary is true. People are simply asking for information, and they know enough to know there’s no assurance of safety.”

Lewis’ argument did not, however, carry the day, as the Board voted to raise fees for people without a medical letter to $35/year. On the advice of Board attorney Thomas Harnett, because the revised rules differed substantially from those put out for public hearing (a fee structure of $175 versus the original $30 over five years for people without a doctor’s certificate), yet a third public hearing on the proposal was held on May 1.

Public Hearing Testimony

At the public hearing in Bangor, no one spoke specifically in favor of the fee hike. Strong testimony in opposition to the two-tiered fee structure came from the chemically sensitive themselves. Alison Johnson from Brunswick has contended with Multiple Chemical Sensitivity (MCS) in her family and operates a national information service for the chemically sensitive. She reported from a survey of 351 MCS victims across the country. Johnson suggested that a better terminology for the problem would be “toxic induced loss of tolerance.” People develop MCS, Johnson explained, through either cumulative exposures or a single serious exposure to chemicals. Pesticides are one of the “primary exposures that can sensitize these people …. One bad exposure can put them in a class of people who no longer have a life.” One victim who had to give up an active and successful professional life as a result of spray drift from an arborist’s pesticide treatment wrote that “my life was sacrificed for a tree.”

Johnson argued that the $35 annual fee for people who don’t have a doctor’s certificate was “much too high.” She explained that few doctors are able to certify that an individual has multiple chemical sensitivity — one doctor in Boston and two in Portland. So even a person with acute chemical sensitivity who is unable to travel or unable to afford the expense of an examination may not be able to produce a letter. Johnson indicated that many of the people who suffer from this problem are Gulf War veterans, few of whom “have $35 to shell out.” And the high fee, Johnson argued, acts as an obstacle to people who have read enough to understand that by avoiding unnecessary chemical exposures they could reduce their chances of ever developing MCS. “My husband is a Bowdoin professor,” Johnson noted, “and we would have to think twice about paying $35 to be on the registry.”

Richard Sandstrom, a victim of MCS from Lewiston, put the matter more bluntly: “There’s only one reason for the high fee. We all know that. It’s so nobody will sign up for it.” Sandstrom urged the Board to “either do it right or don’t do it at all.” Harriet Tilley, 73, a resident of Bangor for 50 years, testified that she has struggled and suffered with the effects of her neighbors’ “toxic vanity spraying” for years. Tilley objected strenuously to any fee for being on the registry: “Summer in Maine is very short. I should be able to go out in my yard any day. I’m 73 and I don’t have many summers left. I will not pay a fee to have my name added to a list of victims.” Nancy Oden of Jonesboro called the proposed rules “one of the best examples of self-satire I’ve ever seen.” Oden argued strongly that agriculture should not be exempt, as it accounted for “most of our exposure” in Washington County, and she called the exemption for structural pest control “lunatic:” “Some houses are within 8 feet of one another, and you won’t notify the neighbors?”

MOFGA argued that the recent revisions to the notification rules would make them “a useless piece of paperwork, which will sit on the books without giving any benefit to the vast majority of people who need protection.” The Board was deeply mistaken in basing the new fees on a fear that members of the public would abuse the registry for purely political ends. Even more disturbing, MOFGA argued, was the view expressed by some on the Board that people who can produce a doctor’s certificate of MCS have a “science-based” reason to require notification, and that all others have merely a “philosophical” opposition to pesticides (hence should be charged a higher fee). This ignores, first, the economic concerns of the organic farmer. Where a negligently applied pesticide application on neighbor’s property can contaminate organic crops, it behooves organic growers to know precisely when and where their neighbors are applying pesticides. Since more than half of MOFGA’s 170 certified growers have gross farm income under $5000, the $35 fee would clearly be prohibitive.

MOFGA also argued that the assumption that there’s less “science” to support the concerns of people who want to minimize long-term exposure to pesticides, as opposed to people who have MCS, is just plain wrong. “It would be deeply regrettable if this Board were to adopt a two-tiered notification policy based on a Dark Ages notion that there’s no science to caution against chronic environmental exposures to low doses of pesticides.” To document this, MOFGA presented the Board with a summary of scientific research on the risks of chronic exposure associated with four of the most commonly used pesticides that would be covered by the registry: diazinon, 2,4-D, glyphosate (Roundup), and Chlorothalonil (Daconil, Bravo). MOFGA also strongly opposed the blanket exemption for rights-of-way – which, it noted, was not even requested by right-of-way managers – and the exemption for outdoor structural applications.

BPC and Ag Dept Strategic Plans Ignore Pesticide Minimization

If the BPC and Agriculture Department’s draft strategic plans are any indication, one might conclude that last year’s legislative mandate to minimize reliance on pesticides and promote IPM had fallen on deaf ears. The Act, P.L. 1997, Ch. 389, originally L.D. 1726, declares State policy “to work to find ways to use the minimum amount of pesticides needed to effectively control targeted pests in all areas of applications.” It directs all “agencies of the State involved in the regulation or use of pesticides [to] promote the principles and the implementation of integrated pest management and other science-based technology to minimize reliance on pesticides …” It mandates specifically that the BPC “shall implement a system of record keeping, reporting, data collection and analysis that provides information on the quantity of product and brand names of pesticides sold …. [and] study ways to improve pesticide information data bases and to optimize the useful analysis of reported information.”

Under Governor King’s performance based budgeting system, all state agencies this year were required to develop strategic plans with quantifiable objectives to guide annual operations. The BPC’s draft plan, approved on February 27 for forwarding for Agriculture Department review, continues the BPC’s traditional emphasis on addressing misuse of pesticides as opposed to use reduction. While the BPC pledges to “reduce the number of adverse incidents from pesticides by 2% as compared to 1998 levels” through, among other things, reducing the “percent of pesticide violations,” and increasing the “percent of training programs,” nowhere does the plan set quantifiable goals for reducing the quantity or toxicity of pesticides sold or used in Maine; nor does the plan address improvement in the information data bases on pesticide sales as required by the statute, or any role of the BPC in promoting the use of IPM.

A review of the Department of Agriculture’s 12/15/97 Action Plan Worksheet, the departmental strategic plan, shows the same omission. The plan identifies an overall goal “to promote stewardship of Maine’s agricultural and natural resources while protecting human health and the environment;” and subsidiary objectives to “reduce nuisances and adverse impacts on human health or the environment from targeted agricultural activities by 2% by the year 2001 as compared to 1996” and to “reduce confirmed incidents of adverse impacts on human health or the environment from pesticides by 5% by 2001 as compared to 1996.” None of approximately 100 action items under these objectives addresses the promotion of IPM, reduction in the quantity of pesticides sold or used, or improvements in the data bases for pesticides sold in Maine. Peter Mosher, head of the Department’s Office of Agricultural and Natural Resources, conceded that IPM or pesticide reduction “doesn’t show right now [in the plan] but will show when we revise the strategic plan.” Mosher indicated that the yet to be hired replacement for retired Don Mairs, the department’s head of IPM, will be charged with writing a portion of the plan related to these objectives.

Three Enforcement Actions Concluded

Three enforcement actions previously reported (Dec/Feb 97 MOF&G) were resolved by consent agreements approved in the BPC’s February 27 meeting. In the case of the Ellsworth Wal-Mart’s punctured and leaking diazinon and Weed & Feed bags, less than a year after receiving written warning for pesticides storage and signage problems, Wal-Mart agreed to pay $1,600 to the state and to develop written procedures to establish safe pesticide handling practices, to be submitted to the Board for approval. In the case of LawnMark by TruGreen-ChemLawn’s repeated lawn care pesticide applications within 500 feet of the residences of two chemically sensitive individuals who had independently twice requested notice of pesticide applications under Ch. 22 of the regulations, the company agreed to pay a $1,000 assessment. In the case of the organic grower who got an unwanted diazinon treatment to his home, wellhead and seedlings when Brunswick’s Modern Pest Control made a carpenter ant treatment at the wrong address, the terms of the consent agreement approved by the Board called for a $1,000 assessment paid by Brunswick to the state. In none of the consent agreements did the companies admit wrongdoing.

Food Quality Protection Act Impact

The Food Quality Protection Act of 1996 (FQPA) repealed the Delaney Clause of the Federal Food, Drug and Cosmetic Act but at the same time imposed some more stringent standards for setting tolerances for food pesticide residues. The Act required for the first time that the EPA, when it sets tolerance levels, consider cumulative health impacts of pesticides through multiple channels of exposure, impact of other non-pesticidal chemicals with similar effects, impact on children and neonatal exposures. Although the process of tolerance review and implementation of the Act’s revisions is still in its infancy, its impact is beginning to be felt in the state.

At the March 27 BPC meeting, BPC staff member Wes Smith reported that the Board had been requested by Zeneca to withdraw the state’s pending petition under Section 18 of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for emergency permission to use the herbicide Reflex on dry beans. (Section 18 allows states to apply for exemptions from normal federal registration procedures for “urgent, non-routine situations” where “significant economic losses” are expected to occur without such approvals.) Under the FQPA, the EPA is now required to consider the impact on drinking water standards of Section 18 exemptions. Since one study suggested Reflex had contaminated drinking water, the EPA announced that it would grant no further Section 18 exemptions for Reflex until the company produced sufficient evidence that drinking water contamination was not a risk.

Ironically, at the same meeting, Cooperative Extension Specialist Dave Handley reported another kind of fallout from the FQPA. Handley reported that the USDA, which funds and oversees state cooperative extensions, had advised the Maine Extension office in writing that the office was going to be evaluated on how many emergency Section 18 exemptions it obtained from the EPA for unregistered products, to replace existing pesticides likely to be unavailable under the new standards set by the FQPA. The USDA sees Section 18 as “a way to bridge the gap until alternative products are found,” observed Handley. Handley confessed to some frustration, however, in getting conflicting messages from different branches of government: “One part of government is saying they’re going to evaluate you on how many Section 18s you get, and another is saying they’re not going to do many Section 18s, so it’s very confusing.” Handley was referring not just to the EPA’s reluctance to issue Section 18s, but to the BPC’s decision at the March 27 meeting to continue its practice of refusing any Section 18 petitions where the manufacturer sought under its label to obtain a waiver of liability for crop damage.

Dave Bell of the Maine Blueberry Commission reported at the same meeting that blueberry growers are increasingly concerned that a lot of registrations are going to be cancelled as a result of the FQPA. During its first phase of tolerance reassessment, EPA plans to review the “worst-first,” i.e., organophosphates, carbamates, and B-1/B-2 carcinogen pesticides. Atrazine, Bravo, Guthion, EBDC, Diazinon, Malathion and Lorsban are a few examples of pesticides that risk cancellation. Board member and retired entomology professor Dick Storch reported that indications at a recent conference were that possible compromises would save one or two products in these classes of pesticides. Some national grower groups, however, are poised to sue the EPA nonetheless, which would delay implementation of any cancellations for years.

Fish Kills Prompt DEP Rulemaking Request

The DEP generally tries to let the Department of Agriculture run its own show regarding regulating pesticides. However, in an unusual move prompted by the frequency of fish kills in Maine attributable to pesticides, DEP Environmental Specialist Nick Archer appeared before the BPC and requested that it write new rules related to pesticide mixing and loading sites. Archer reported that Maine had experienced about one fish kill a year, all over the last several years in Aroostook County, related to agricultural pesticides. In 1996, 10,000 fish were killed in a Canadian fish pond fed by a brook in Maine that had received a pesticide spill. In 1997, 1500 to 2000 fish, including 500 brook trout, were killed in Whitney Brook. The grower cited for the spill contended that some diluted pesticide had spilled out of a sprayer as it crossed a bridge over the brook. DEP tests suggested, however, that that much damage could not have been done by diluted pesticide, and that more likely unmixed pesticide had contaminated the brook during mixing and loading operations. Accordingly, after discussion with grower organizations, the DEP was recommending a regulation that would prohibit mixing and loading within 50 feet of the high water mark of bodies of water. The BPC unanimously agreed to proceed with the requested rulemaking.

– Sharon Tisher