Maine Organic Farmers and Gardeners Association > Programs > Public Policy Initiatives > MOFGA Position Statements

Testimony Delivered in 2011/2012

LD 1830 - An Act to Establish the Department of Agriculture, Conservation and Forestry

Testimony of Russell Libby, Executive Director
In Opposition To:
LD 1830, An Act to Establish the Department of Agriculture, Conservation and Forestry

Good afternoon Senator Sherman, Representative Edgecomb, and members of the Agriculture, Conservation, and Forestry Committee. I am Russell Libby, Executive Director of the Maine Organic Farmers and Gardeners Association (MOFGA), and I am speaking today in opposition to LD 1830.

MOFGA’s opposition to a merger is not absolute. There are conditions under which a merger might make a good deal of sense. The fact that this Committee works with both Departments now is an example of how that is possible. We have five specific concerns about LD 1830, and this process, which lead us to oppose the bill.

1. The cart is before the horse. In the early 1980’s, when there was a substantial reorganization of the Department of Agriculture into the Department of Agriculture, Food, and Rural Resources, there was a detailed bill that specified the revised mission of the Department, the organizational structure, what each Bureau and Division was supposed to do, and the budgetary impact of each of the changes, both to make the transition and moving forward. Those are largely absent from LD 1830. Instead, there is an assumption that this will all be worked out by the new Commissioner with this Committee only hearing about the solutions after the fact. Even rule changes, which historically this committee likes to review, are all to be treated as routine technical rules.

2. The proposed mission (Section 202) doesn’t reflect the breadth of the activities of the Department of Agriculture, Food, and Rural Resources, which I know well, and probably not that of the Department of Conservation. This Committee should be looking carefully at whether Section 202 is the overarching language that represents the broad public interests embedded in these two existing departments, including conservation and environmental priorities.

3. There are no new resources. Both Departments have struggled for decades through round after round of budget and personnel cuts. If this new Department is to provide leadership to two major natural resource sectors, then it will need more money and people, not the same or less. By the way, the fiscal note doesn’t include any transition costs at all, which means that both departments will be using “All Other” funds to make the transition, further limiting their ability to carry out their current programs and mission.

4. There is no process for public involvement. At the Commissioner’s Luncheon at the Agricultural Trade Show, the Commissioner of Agriculture held up an old Yearbook of Agriculture. At that time, the Department of Agriculture had a Board, with one member from each county that provided guidance on issues and policy. Obviously the world has changed a lot in the past hundred years, but some mechanism for public involvement might help to sort out the many issues that will emerge in the years ahead. LD 1830 includes the possibility of one public hearing, sometime between now and June 15th, as the totality of public participation.

5. There are strong possibilities for conflict within the proposed agency. For example, a number of studies are now looking at the future of food production in New England. Several assume that several million acres in Maine that are currently in forest land will become farmland over the next fifty years, making the landscape look a lot more like that of 1950. Is this new Department to promote the agricultural uses? Or maintain the current forestry uses? How is that to be reconciled? The legislation is silent on that.

I understand that every department and agency of state government is deeply engaged in assessments of priority programs and activities. In many ways, it seems that completing that process, and then seeing how to mesh the two Departments would allow everyone who has an interest—the constituents of the two existing Departments and the general public –to have a clearer picture of what a merged Department might look like. That’s what’s missing from LD 1830.

I’d be happy to try to answer any questions.

LD 1810 - An Act To Implement Recommendations Of The Committee To Review Issues Dealing With Regulatory Takings

TESTIMONY OF SHARON S. TISHER, J.D.
ON BEHALF OF THE MAINE ORGANIC FARMERS AND GARDENERS ASSOCIATION
IN OPPOSITION TO L.D. 1810
BEFORE THE JOINT STANDING COMMITTEE ON JUDICIARY - MAINE LEGISLATURE
FEBRUARY 21, 2012

I am a member of the Public Policy Committee of the Maine Organic Farmers and Gardeners Association (MOFGA) and authorized to express this organization’s position with respect to proposed “takings” legislation, L.D. 1810. I am an attorney and adjunct assistant professor with appointments in the Honors College and the School of Economics, University of Maine. I have authored a law review article on Constitutional takings law (“Everglades Restoration: A Constitutional Takings Analysis,” 10 Journal of Land Use & Environmental Law No. 1 (Fall 1994)), and make a study of both Maine and U.S. Constitutional takings law a focus of my undergraduate course on environmental in the Ecology and Environmental Sciences Program at the University of Maine.

MOFGA has more than 6,500 individual, business, and family members, who represent a broad spectrum of citizens – not just organic farmers and gardeners, but also consumers and business people who care about the healthfulness of our food, and the preservation of rural life in Maine.

MOFGA is mindful that we must be deeply grateful for the effectiveness of our local, state, and federal regulatory systems in protecting our clean soils, water and air. Without the major state and federal environmental statutes enacted over the last 40 years, local land use controls, and the effectiveness of regulators in enforcing them, there might be much less to celebrate about rural life in Maine. Development practices which destroy wetlands, overpopulate waterfront property, result in contamination of our soils and groundwater, and drive up the price of real estate, will directly adversely impact the quality of life in Maine, and our ability to continue the practice of organic farming and gardening in Maine. Clean water and clean air and appropriate regulatory restraints on land use are essential to healthful and productive crop cultivation. We oppose the “takings” bill precisely because it jeopardizes these values that our so important to our lives and work in Maine.

L.D. 1810 would cripple state protection of Maine’s wetlands and other fragile natural resources from development, and place added burdens on municipal resources as well. The proposal in effect places a prohibitive “tax” on the public’s protection of its natural resources, to benefit polluters and developers. This and other “takings” legislative proposals, in looking only at the negative impact of government regulation on property value, ignores the very substantial direct and indirect public subsidies and benefits from regulation which create “fair market value” in the first instance (see E. Thompson, “The Government Giveth,” The Environmental Forum, Vol. 11, No. 2 (March/April 1994), attached).

The law firm of Pierce Atwood, in a January 11, 2012 “action alert” to supporters of this bill, has represented that it is “virtually impossible for a landowner to receive any relief [under judicial takings decisions]. Under Maine law, if you can still pitch a tent or park a trailer on your property, no compensation will be granted."

This is an utterly distorted interpretation of Maine law, and of U.S. Constitutional law which in turn controls Maine Constitutional interpretations. It advances a myth frequently relied upon by proponents of “takings” bills: that the Constitution only provides compensation when regulations effectively reduce all of a property owner’s land to a zero market value, with no beneficial use. This is quite incorrect. The 100% reduction in value is the “easy” case (“categorical case,” as Justice Scalia put it in Lucas v. So. Caroline Coastal Council, 505 U.S. 1003, 1011 (1992)). In cases where there is less than 100% diminution of value, the courts apply a balancing test articulated in Penn Central Trans. Co. V. New York City, 438 U.S. 104 (1978). This analysis appropriately balances the public interest in the challenged regulation against the property owner’s reasonable investment backed expectations with respect to the property. Fairness calls for this analysis to be done via a fact-specific, case by case analysis. Some litigants win, some lose, but the fact that in some Maine cases litigants have failed to obtain compensation is no proof that the test is flawed, or the standard unfair.

The Maine Superior Court decision of Wyer v. Board of Environmental Protection (Docket No. CV-92-1091)(1999), which apparently inspired the Pierce, Atwood characterization, is in fact illustration of a very fair result. The Wyer court did parenthetically note that the property at issue, a small shorefront lot in an area located in a "hazardous flood zone" whose buildability was "always in question,” had various recreational uses other than construction of the desired beach house. The nexus of its decision denying compensation turned, however, not on the possibility of transient recreation on the lot, but that the lot had substantial value, at least four times the $10,000 Wyer had paid for it, even after the Sand Dune regulation and denial of a building permit. A neighboring property owner had offered $50,000 to purchase it to protect her view. Because this regulation had not deprived the property owner of all economic value in his property, the court applied the Penn Central balancing test described above. It weighed, in effect, the public interest in protecting the fragile shorefront and dune ecosystem, against the property owner's desire to obtain a profit that was ten times his original investment, and determined, absolutely appropriately, that that desire was not a Constitutionally protected interest.

In my environmental law course, my undergraduate students are required every year to research and write a brief on a hypothetical case requiring application of U.S. and Maine Constitutional takings law. In the course of this formidable exercise, the vast majority of those students come to the conclusion that takings law, while not exactly cut and dried, is flexible and thoughtful and ultimately just. In years of teaching environmental law in the context of an Ecology and Environmental Sciences program, I have come to the conclusion that the law, and Constitutional law above all, is an ecosystem. Everything is connected to everything else. Small changes can lead to unintended and undesirable results. A purported legislative "fix" on takings will in fact constitute a stealth "tax" on government services that will very adversely impact property values, to a far greater extent than the windfall that will be enjoyed by successful litigants under the statute and their lawyers.

LD 1 - An Act To Ensure Regulatory Fairness and Reform

Testimony MOFGA Regarding
LD 1 - An Act To Ensure Regulatory Fairness and Reform
Presented to the Committee on Regulatory Fairness and Reform
by Heather Spalding, Associate Director of MOFGA
February 14, 2011

Senator Courtney, Representative McKane, and members of the Joint Standing Committee on Regulatory Fairness and Reform, my name is Heather Spalding and I am the Associate Director of the Maine Organic Farmers and Gardeners Association (MOFGA). We have members in more than 6,000 homes and businesses, in every legislative district in the state, in states across the country, and in Canadian provinces and other international locations. At least 1,000 of our members operate farms across the State. Each of these farmers is a Maine businessperson for whom economic health and environmental health are interdependent.

This is an exciting time to work with Maine’s organic farming community, which produces healthful food in a manner that limits the use of chemicals, improves farmland and protects the environment. Our organic producers generate at least $36.6 million in sales, support 1600 jobs, and keep 41,000 acres of farmland in organic production. Five percent of Maine's cropland and more than five percent of Maine's farms are certified organic. At least 20% of Maine dairies are MOFGA-certified organic. Because almost half of farmers in Maine are over the age of 60, MOFGA is working hard to train the next generation of Maine’s farmers. Our Journeyperson Program is producing 25 new farmers each year, and we expect that by 2020, at least 5% of Maine’s farmers will be MOFGA Journeyperson Program graduates.

MOFGA is committed to the principal that Maine families, regardless of income and location, should have access to local, organic food. We want Maine to make a long-term commitment to ecological solutions for the health of our farms, fisheries, forests and families. We want Maine to commit to rebuilding its agricultural infrastructure and economy to supply the New England foodshed. MOFGA is working to make this happen and we need the State to work with us.

Regarding regulatory reforms, we recommend that the State simplify licensing standards to help farmers wishing to sell more from their homes. Currently, farmers may need multiple licenses to move product to their customers. One approach could be to extend the definition of the farm to the point where the farmer transfers the product to the buyer. The State also should continue its openness with home kitchen licensing in order to support farmers wishing to develop value-added products, and expand into commercial kitchens and larger markets.

Some of the proposed rollbacks in the document, Phase I of Governor’s Regulatory Reform Proposals, have serious potential to harm public health and to stymie the growth of organic farming.

Maine needs to protect farmland and open spaces, especially in regions of our state where soils are best suited to agriculture. Turning precious farmland into condos and shopping malls is shortsighted, at best.

For many years, MOFGA has worked with the Alliance for a Clean and Healthy Maine to protect people, especially kids, from unnecessary exposure to pesticides and to hazardous chemicals in everyday consumer products. There has been almost unanimous bipartisan support for this work. The Governor’s proposal to repeal the Kid-Safe Products Act and Bisphenol A rule, purportedly in deference to Federal standards, is distressing.

We also are concerned about the Governor’s plans to fiddle with the structure and reporting procedures of the Board of Pesticides Control (BPC). While MOFGA has had disagreements with BPC’s members and staff through the years, we have appreciated the opportunity to engage respectfully in public hearings and stakeholder meetings around pesticides rulemaking. The BPC has worked hard for many years to develop a system that addresses public concern about pesticides drift exposure, makes it easy for land managers to notify neighbors, and minimizes the conflict that arises when people and their property are drifted on. The BPC now has a brilliant, free, internet-based geographic information system that allows land managers to identify and inform concerned neighbors with the click of a mouse - with no fiscal note for the State. Organic farmers need more protection from the Legislature and the BPC, not less, because their crops are threatened by drift from pesticides and pollen from genetically modified organisms. Rolling back existing safeguards will not improve agricultural community relations.

Please remember that the health of our economy can only be as strong as the health of our environment and the health of our people.

I will try to answer your questions if you have any.

Heather Spalding
Associate Director
Maine Organic Farmers and Gardeners Association (MOFGA)
PO Box 170
Unity, ME 04988
207-568-4142
heathers@mofga.org

LD 321 - An Act To Change the Qualifications of Certain Members of the Board of Pesticides Control

Testimony of MOFGA Regarding LD 321, An Act To Change the Qualifications of Certain Members of the Board of Pesticides Control
Presented to the Joint Standing Committee on Agriculture, Conservation and Forestry
by Heather Spalding, Associate Director of MOFGA
March 6, 2011

Good afternoon Senator Sherman, Representative Edgecomb and members of the Joint Standing Committee on Agriculture, Conservation and Forestry. My name is Heather Spalding and I am the Associate Director of the Maine Organic Farmers and Gardeners Association (MOFGA). I am here today to express MOFGA’s opposition to LD 321, An Act To Change the Qualifications of Certain Members of the Board of Pesticides Control. I will explain our opposition to this legislation in a minute, but I would like to do two things before getting into those specifics.

First, because this is the first time that I have spoken before many of the new committee members, I want to thank you all for agreeing to serve on this committee. We’ll be seeing a lot of each other in the coming weeks and I’m hopeful that together we will develop policies in the best interests of Maine foresters, food producers and consumers, and land managers.

Second, I would like to provide a bit of background information on MOFGA. We have members in more than 6,000 homes and businesses, in every legislative district in the state, in states across the country, and in Canadian provinces and other international locations. At least 1,000 of our members operate farms in Maine. Each of these farmers is a Maine businessperson for whom economic health and environmental health are interdependent.

This is an exciting time to work with Maine’s organic farming community, which produces healthful food in a manner that limits the use of chemicals, improves farmland and protects the environment. Our organic producers generate at least $36.6 million in sales, support 1600 jobs, and keep 41,000 acres of farmland in organic production. Five percent of Maine's cropland and more than five percent of Maine's farms are certified organic. At least 20% of Maine dairies are MOFGA-certified organic. Because almost half of farmers in Maine are over the age of 60, MOFGA is working hard to train the next generation of Maine’s farmers through our Farm Apprenticeship and Journeyperson Programs.

MOFGA is committed to the principal that Maine families, regardless of income and location, should have access to local, organic food. We want Maine to make a long-term commitment to ecological solutions for the health of our farms, fisheries, forests and families. We want Maine to commit to rebuilding its agricultural infrastructure and economy to supply New England. MOFGA is working to make this happen and we need the Legislature to work with us.

MOFGA has had a long history working with Maine’s Board of Pesticides Control (BPC). For decades we have attended monthly BPC meetings and reported on the meetings in our quarterly newspaper, The Maine Organic Farmer & Gardener. We have participated regularly in public hearings and stakeholder meetings. While we have had significant disagreements about various rules and consent agreements over the years, we have found that the board and staff members have worked very hard to maintain open and respectful forums and to consider input from all perspectives. We feel that the credentials required for each Board seat are what encourage the airing of all concerns and suggestions.

We are puzzled about LD 321 and have to ask, “Why?,” “What purposes would the changes serve?,” and “What problems would they address?” The makeup and purpose of the BPC has been adjusted a few times through the years, in attempts to present a good balance of perspectives, but generally, it has withstood scrutiny for 30 years. We acknowledge that in 1983, MOFGA proposed and helped pass legislation requiring that a member of the BPC must have knowledge and practical experience in Integrated Pest Management (IPM). It wasn’t partisan or biased. The requirement sought to raise awareness about viable alternatives to pesticide spraying in support of the BPC’s goal of minimizing Maine’s reliance on pesticides. Indeed, MOFGA felt that all members should have a basic understanding and appreciation of IPM. That certainly is the case with the BPC today.

Broadening the training options for the University of Maine Scientist to include a plant pathologist is interesting but, again, we are unsure about what purpose this would serve. What about the University’s expertise in weed ecology, plant health, soil chemistry, and sustainable agriculture? We feel that simplifying the credentials for this seat would make more sense. The requirement could be “a scientist from the University of Maine System’s Plant, Soil and Environmental Sciences Department having practical experience and knowledge of integrated pest management.”

Any trade association, business, citizen’s group, or other entity could advocate for its own representative on the BPC. MOFGA could have requested that a BPC member represent the specific interests of the state’s vibrant and dynamic organic farming community. The Pomological Society could have lobbied for a fruit tree specialist. The Maine Parent Teacher Association and the Learning Disabilities Association of Maine might have advocated for a scientist with expertise in neurological disorders resulting from pesticides exposures. The possibilities are innumerable.

We need broad categories that ensure representation of various interests. Maine businesses advocating for pesticide use in ornamental horticulture and urban landscapes already have representation from the commercial applicator seat. LD 321 would take one type of commercial applicator out of a large group and give it special treatment. Further, it would change one of the public seats to a commercial seat representing the horticultural/landscape industry.

If conventional ornamental horticulture and landscape businesses feel that their concerns are not being addressed, maybe an ad hoc commercial applicator subcommittee should take shape and report to the Commercial Applicator seat.

Public awareness about the harmful effects of pesticides exposure is growing. There are almost 1900 registrants on Maine’s aerial and air carrier spray notification registry. And most comments submitted to the BPC relating to the notification registry have come from public citizens who feel that supporting notification is the very least that Maine could do to reduce pesticide spray exposure. People want access to information, they want to have faith in the conduit that provides that information, and they want to trust that their viewpoints have adequate representation. The BPC will lose credibility if the Legislature drops one of the public, environmental expertise seats. Such an action would make the Board of Pesticides Control more of a Board of Pesticides Applicators. There’s already enough controversy around “BPA”!

I would like to commend the two people who fill the public seats of the BPC. We are extremely fortunate to have the public service of Chuck Ravis and Curtis Bohlen. Not only do they meet the somewhat vague “environmental expertise“ requirement, they also have multiple advance science degrees, and bring many years of professional landcare management, ecology and water quality experience to the discussion. Chuck has a Ph.D. in Environmental Science and Ecology, which he teaches at Thomas College in Waterville. He also has vast experience in conventional landcare including Maine golf courses, and is a resource for landcare professionals seeking information about IPM and environmentally preferable landscaping practices. Curtis holds a Ph.D. in Ecology from Cornell University, and M.S. and B.S. degrees in biology from Stanford University. He has served on the faculty of Bates and Colby Colleges, and now serves as the Director of the Casco Bay Estuary Partnership (CBEP), a program hosted jointly by the Muskie School and the Marine Law Institute. The two public seats of the BPC are not filled by stereotypical treehuggers, but by accomplished and dedicated scientists. They are working very hard and have been careful to consider all sides of arguments. Presenting LD 321 at this time not only is mystifying it’s also a slap in the faces of these two men.

In conclusion, we feel that the current requirements for the seven seats of the BPC provide good representation of diverse perspectives on pesticides use in Maine. Please leave the Board makeup as it is.

Thank you.

LD 330 - An Act To Exempt Farm Food Products and Homemade Food Offered for Sale or for Consumption at Certain Events from Certain Licensing Requirements

Testimony of Russell Libby, Executive Director, Maine Organic Farmers and Gardeners Association (MOFGA)

Neither for nor against LD 330 - An Act To Exempt Farm Food Products and Homemade Food Offered for Sale or for Consumption at Certain Events from Certain Licensing Requirements

March 22, 2011

Good afternoon, Senator Sherman, Representative Edgecomb, and members of the Agriculture, Conservation, and Forestry Committee. I am testifying today neither for nor against LD 330, “An Act to Exempt Farm Food Products and Homemade Food offered for Sale or for Consumption at certain Events from Certain Licensing Requirements.”

First, it’s obvious that Federal and State laws can be made stronger through local action, but can’t be weakened through a local ordinance. A town or city might choose to not enforce something that is technically within their purview, but the State/Federal authority doesn’t go away.

The notion of farmer-consumer marketing agreements that is at the heart of this bill is a good one, and one that needs more consideration. Is it one farmer/one consumer? One farmer, many consumers? Many farmers, many consumers? As the system becomes naturally more complex, so do the regulatory concerns.

I worked hard, along with others, to get some of these issues addressed in the Food Safety Modernization Act, passed by Congress late last year. There are special considerations for farmers who have a label and maintain that product integrity all the way to the final consumer. I think that’s the goal of the proponents of the bill, and I think there is a pathway forward that involves:

A. Creating space for farmer-consumer marketing agreements (“Contracts”)
B. Recognizing that food served at community functions is generally unregulated now, under State and Federal laws
C. Providing training to farmers/processors so that they are aware of the legitimate concerns of food safety regulators, and
D. Simplifying and streamlining the current regulatory system.
Here, too, like the raw milk law and rules, Maine has been more flexible than many states with Home Food Production options for processing. I think one of the big issues is that it’s often not clear, in advance, that things that we might all consider to be normal, common-sense things are regulated activities.

I’ll use the example of a very successful Maine-based company, Stonewall Kitchens. They experimented with a lot of recipes as they found their way to the ones that customers liked. Do we need to make sure the facility is up to standards, and the operators know what they’re doing, or do we need to test each individual recipe? When a business is just starting, it’s an idea, and it’s when it reaches a reality that involves wholesaling, and the product needing to stand for itself without the conversation that comes from the farmer-consumer interaction that the regulatory system becomes more and more important.

Some of the language included in this bill—allowing sales from the farm, or from the farmer/processor to an informed consumer—may be possible under revised State law. However, all of it runs headlong into increasingly strict Federal regulations. Existing Federal law—the Food Bioterrorism Act of 2002—requires any facility that processes food to be registered with the Food and Drug Administration. The new law adds requirements for food safety plans, food traceability, and food defense plans for any facility. Is someone who direct markets value-added products a facility? That remains to be seen, but the answer seems to be, it depends. If you’re producing something that FDA has under scrutiny, you’re going to have to have to meet Federal standards, whether or not there are State regulations.

I am testifying neither nor against this bill for two reasons. First, the exemption for sales of value-added products is so broad it is likely to lead to more FDA oversight of Maine businesses. My preference will always be to deal with State regulators over Federal. Second, the exemptions are extended to sales at farmers’ markets, where it is unlikely that the informed consumer language is going to be applied.

Thank you. I’d be happy to try to answer questions.

LD 366 - An Act Regarding the Sale of Raw Milk

Testimony of Russell Libby, Executive Director, Maine Organic Farmers and Gardeners Association

Neither for nor against LD 366 - An Act Regarding the Sale of Raw Milk

March 22, 2011

Good afternoon, Senator Sherman, Representative Edgecomb, and members of the Agriculture, Conservation, and Forestry Committee. I am testifying today neither for nor against LD 366, An Act Regarding the Sale of Raw Milk.

First, I’d like to say that Maine, compared to many states, is farmer-friendly on raw milk issues. That is, raw milk may be sold at the farm and in stores, and there is a regular testing program to protect both farmers and consumers by making sure the milk meets certain standards.

The challenges are: 1) the pathway in, for someone who is just starting a dairy and can’t afford the high capital investment of a legal milking setup and accompanying handling and storage; and, 2) the question of whether someone who has a cow or goat, or several, and extra milk, has any legal way of moving that milk to people who want to use it.

It seems there are two possible ways to potentially address these issues and still not undermine the intent of the State’s existing raw milk legislation:

A.“Offer for sale.” If someone does not put out a sign, or advertise their product, and through either word-of-mouth, or an inquiry from an interested person, a sale or exchange is made, then was it offered for sale? The State’s current interpretation is “Yes.” A simple definition of the phrase might permit casual on-farm sales but set a boundary beyond which a license is required.
B. “Contracts.” Several states have established a framework that allows interested consumers to contract with a farmer for a share of the milk from a cow or goat. (Colorado, Alaska, Tennesee, and Indiana) This seems to be happening in states that otherwise prohibit raw milk sales, but there’s no reason the model can’t be used here. This could be a method to allow sales beyond the farm without undermining the basic concept of the existing raw milk legislation.

The notion, included in the bill, that the farm extends to the point of delivery, is an important one, and is increasingly a focus of State (and potentially) Federal interest. There may be some creative language that could address this issue as well.

When the farmer took goods to a factory or processor, and that was the end of their involvement, it was easy to draw a line about the boundary of the farm. Now it’s becoming more complex, and our laws and our rules are going to have to adjust to the reality that the only way many farms stay in business is through this combination of turning their products into goods that customers want, and then getting them to their doors.

Thank you. I’d be happy to answer any questions you might have.

LD 412 - Resolve, Regarding Designation of Bisphenol A as a Priority Chemical and Regulation of Bisphenol A in Children's Products

Testimony of MOFGA Regarding LD 412, Resolve, Regarding Legislative Review of Portions of Chapter 882: Designation of Bisphenol A as a Priority Chemical and Regulation of Bisphenol A in Children's Products, a Major Substantive Rule of the Department of Environmental Protection
Presented to the Joint Standing Committee on Environment and Natural Resources
by Heather Spalding, Associate Director of MOFGA
March 25, 2011

Good afternoon Senator Saviello, Representative Hamper and members of our Joint Standing Committee on Environment and Natural Resources. My name is Heather Spalding and I am the Associate Director of the Maine Organic Farmers and Gardeners Association (MOFGA), which has members in more than 6,000 homes and businesses, in every legislative district in the state, in states across the country, and in Canadian provinces and other international locations. At least 1,000 of our members operate farms in Maine. Each of these farmers is a Maine businessperson for whom economic health and environmental health are interdependent. MOFGA also is a proud member of the Alliance for a Clean and Healthy Maine, which has worked hard to develop and promote public policies that will protect Maine citizens from unnecessary toxic chemicals. MOFGA strongly supports LD 412 and its intention of phasing out bisphenol A in reusable food and beverage containers.

I would like to focus specifically on the concern that we have about the presence of toxic, industrial chemicals in food, and the implications for the health of Maine’s children. Emerging science tells us that toxic pesticides are not the only chemicals contaminating our food supply. Other dangerous chemicals find their way into foods through packaging, processing and cooking.

Of the chemicals commonly found in food packaging, bisphenol A (BPA) has earned the most media coverage of late. We are concerned about the chemical’s link to prostate and breast cancer, obesity and diabetes, early puberty, ovarian cysts and uterine fibroids, reduced fertility and miscarriage. We are also concerned that the chemical is present in almost all food and beverage cans, and is leaching into canned foods. There are safer food can liners on the market but they are not as widely available to food processors. The alternatives are more expensive, but it is only ethical to choose safe alternatives when it comes to food packaging, especially when chemicals present serious adverse health effects for children.

MOFGA is dedicated to preserving the integrity of the fresh, local, organic foods that our farmers and processors work so hard to produce. From the soil to the dinner table, food should be free of toxic chemicals. Organic farmers have huge practical and economic responsibilities to ensure that their produce is grown according to strict standards set by the National Organic Program. Food packaging manufacturers should be held to similarly strict standards that safeguard the public and require the development and use of the safest materials.

Maine’s applauds the work that Maine’s Department and Board of Environmental Protection have conducted on bisphenol A. We urge you to support LD 412. Thank you for your consideration.

LD 837 - An Act To Protect Children's Health and Promote Safe Schools and Child Care Centers by Limiting the Use of Pesticides

Testimony of MOFGA Regarding
LD 837 - An Act To Protect Children's Health and Promote Safe Schools and Child Care Centers by Limiting the Use of Pesticides
Presented to the Joint Standing Committee on
Agriculture, Conservation and Forestry
by Heather Spalding, Associate Director of MOFGA
April 7, 2011

Good afternoon Senator Sherman, Representative Edgecomb and members of the Joint Standing Committee on Agriculture, Conservation and Forestry. My name is Heather Spalding and I am the Associate Director of the Maine Organic Farmers and Gardeners Association (MOFGA). I am here today to express MOFGA’s support for LD 837, An Act To Protect Children's Health and Promote Safe Schools and Child Care Centers by Limiting the Use of Pesticides.

MOFGA has members in almost 6,500 homes and businesses in Maine and beyond. Almost half of our memberships are family memberships – families who love what MOFGA does, who grow, purchase and consume Maine’s organic bounty, and who want to protect Maine children from the harmful effects of pesticides.

There is a growing awareness of the threats to kids health from pesticides exposure, and a corresponding increase in learning how to farm, garden and maintain beautiful lawns without the use of pesticides. Just yesterday MOFGA volunteers offered Grow Your Own Organic Garden classes simultaneously at more than 30 venues throughout the state, and most of them were full. Almost all of our classes are selling out regularly.

MOFGA supports the proposed restrictions on the use of pesticides in schools and daycares. We also would support an organic land care requirement for management of playgrounds and ball fields. Although MOFGA does not offer an organic land care certification program, we do work closely with the Northeast Organic Farming Association of Massachusetts (NOFA-MA), which does run such a program. Maine’s knowledge base among organic land care specialists is expanding rapidly. Just this past January, seven more Maine businesses became NOFA Accredited Organic Land Care Professionals.

These businesses know how to manage turf organically, without the use of synthetic and hazardous pesticides. They know how to control broadleaf weeds and grubs without spreading herbicides and larvacides on fields where children will be playing. Proper watering, top dressing of compost, aeration, and use of natural microbial insecticides such as Milky Spore will do the trick. Another method, which we employ on the fields in my hometown of Palermo, is to organize field cleanup days and get families to hand-pull patches of dandelions and other broadleaf plants.

The Board of Pesticides Control’s Chapter 27 regulates the use of pesticides in schools and mandates an integrated pest management (IPM) approach. Implementation of IPM can vary widely but it is our understanding and expectation that responsible pesticide use in any IPM program should include the safest, effective materials, biological and mechanical controls. Organic land care systems should be the standard on school playgrounds and ball fields in our state. Maine should also promote organic methods at school gardens, as well as local, organic foods in school cafeterias.

Chip Osbourne’s comparison of conventional and organic turf management on school athletic fields shows that Maine can have its beautiful school grounds and play safely on them too. We are disturbed by the apparent attitude of Maine’s conventional land care professionals who argue that organic fields are not safe and cause more sports injuries. As Mr. Osbourne says, “The safety of a field is not dependent on whether there is an organic versus chemical-based maintenance program, any turf that has an irregular surface can lead to falls or twisted ankles. In fact, chemical turf is generally hard and compacted because there is not much soil biology. Organic management focuses on cultural practices, such as aeration, that alleviate compaction and provide a softer, better playing surface.”

MOFGA is far more concerned about kids getting lymphoma and leukemia from pesticides exposure than we are about slipping on dandelions. There is absolutely no reason for schools and daycare centers in Maine to use hazardous, synthetic pesticides for cosmetic purposes.

This bill is a win, win, win, win, win scenario. It will protect the health of Maine kids, it will reduce Maine’s reliance on hazardous landscaping chemicals, it will improve the health and quality of Maine schools’ playgrounds and ball fields, it will encourage land care professionals to learn about viable alternatives to conventional turf management, and, over time, it will reduce the amount of taxpayer dollars going toward school grounds maintenance.

Thank you.

LD 975 - An Act To Require Certification of Private Applicators of General Use Pesticides

Testimony of MOFGA Regarding
LD 975 - An Act To Require Certification of Private Applicators of General Use Pesticides
Presented to the Joint Standing Committee on Agriculture, Conservation and Forestry
by Heather Spalding, Associate Director of MOFGA
April 7, 2011

Good afternoon Senator Sherman, Representative Edgecomb and members of the Joint Standing Committee on Agriculture, Conservation and Forestry. My name is Heather Spalding and I am the Associate Director of the Maine Organic Farmers and Gardeners Association (MOFGA). I am here today to express MOFGA’s support for LD 975, An Act To Require Certification of Private Applicators of General Use Pesticides.

Our testimony is short. We believe that anyone using pesticides in commercial crop production should know what they’re doing.

People who spray pesticides outdoors as part of their business operations should, at a minimum, be trained and licensed to use the chemicals according to state law. That law should include extensive education about the significant threats to human health from pesticides. Such training would lead to better communication among land managers and their neighbors who seek advance notification about spraying.

Thank you for considering LD 975.

LD 1129 - An Act To Provide the Department of Environmental Protection with Regulatory Flexibility Regarding the Listing of Priority Chemicals

Testimony of Sharon S. Tisher
In opposition to L.D. 1129 - An Act To Provide the Department of Environmental Protection with Regulatory Flexibility Regarding the Listing of Priority Chemicals

March 29, 2011

Before the Joint Standing Committee on Environment and Natural Resources

My name is Sharon Tisher. I am a retired attorney, and adjunct assistant professor at the University of Maine, where I teach environmental law to undergraduates and various courses in the Honors College. I was honored to serve on the Governor’s Task Force to Promote Safer Chemicals in Consumer Products, which issued its report in December 2007, and whose recommendations lead to the enactment of the Kid Safe Products Act. I also participated in all of the meetings of the stakeholder process that preceded rulemaking under that Act. I am testifying on behalf of the Maine Organic Farmers and Gardeners Association.

I have a specific comment on Section 1 of this bill, and some general comments on the entirety of the bill.

First, I hope that I am misunderstanding Section 1. My apologies to the drafters if I have. But it appears to me that Section 1 is an example of something that we should always discourage in the legislative process: legislation by stealth or subterfuge. There is no mention in either the text of Section 1 or the summary of the impact of Section 1 at the end of the bill, of the citizen right to petition for rulemaking under 5 MRSA Section 8055. It is my interpretation, however, that the intended but undisclosed impact of this amendment would be to deprive citizens of this right under Section 8055. Any rulemaking by petition would not have been included as part of the agency’s regulatory agenda. So under the guise of an innocuous housekeeping provision (who could argue with advance notice to the Legislature?) a fundamental right of the people of Maine will have been denied. I am not aware of any comparable provision in the Maine statutes. How do I explain to my environmental law students that citizens in Maine have a right to initiate rulemaking, under all enabling statutes except the one intended to protect infants and children from toxic chemicals?

And now some general comments. After more than five years of close engagement with the State of Maine on the issues of safer chemicals policy, I have nothing but the highest praise for Maine’s legislators’ and public officials’ hard work, intelligence, fairness, and commitment to protecting the health of Maine’s children. This legislation would undo all of that work, in one moment of carelessness, under the extremely well-funded influence of the chemical industry. It is legislation by stealth on a larger scale: a repeal in the guise of an amendment.

In supporting repeal of the Kid Safe Products Act, the Governor has stated that “federal agencies have better resources than the state to effectively establish standards for such chemicals.” That is something I have some expertise in. I drafted the portions of the 2007 report of the Task Force on Safer Chemicals related to the inadequacy of federal chemicals regulation, and I have appended that section to this testimony. The full report is available at http://www.maine.gov/dep/oc/safechem/me-safer_chem_rpt.pdf. The short answer to Governor LePage is that, believe it or not, sometimes the feds drop the ball. And in this case, everyone, even the chemical industry, admits that they have. The law school casebook that I chose for my course 16 years ago concluded that the federal law that regulates chemical safety, the Toxic Substances Control Act (ToSCA) was “perhaps the most complex, confusing, and ineffective of all of our federal environmental protection statutes.” Now, two editions of that text later, nothing about that has changed. And a website from an industry sponsored organization called the Coalition for Chemical Safety stated in 2009: “After more than 30 years it’s time to reform our nation’s chemical safety laws.”

Despite our growing addiction to relying on the federal government to fix problems at the state level (an addiction that I know the LePage administration opposes), it is a fundamental principle of American Constitutional law that the responsibility to protect Americans’ health and safety lies first with the states, not the federal government. The Kid Safe Products Act does just what states are supposed to do under our Constitution.

Professor Jon Reisman calls this law “technophobic.” I’d say it’s technophilic. It’s in the nature of technology, thank goodness, to improve over time. We can make better chemicals than we made thirty or forty years ago. We should substitute safer chemicals when advances in the technology and science of medical research tells us that the older chemicals are unsafe.

Which brings me to my final point: this is a Maine business friendly law. To cripple this statute is to indirectly but decisively strike a blow against green business in Maine with huge potential. The last I knew, Maine didn’t have any oil wells. Maine doesn’t benefit at all from a petroleum based economy, least of all from petroleum based plastics with toxic chemical additives that mess with the endocrine systems of our children. Maine would benefit from biobased plastics that are derived from potato or wood refuse, and are BPA free. A number of my colleagues at the University of Maine are hard at work demonstrating the feasibility of this new technology, as a recent story on Maine Public Radio discussed. Imagine the potential market in New England, or the Boston market alone, for Maine made bioplastic utensils and food and beverage containers that are BPA free. Researchers and entrepreneurs in Maine are way ahead of other New England states in this field – and we need to stay ahead, not go backwards, which is where L.D. 1129 would take us.

Sensible regulation of toxics and emerging, alternative Green business go hand in hand. I suggest you take a look at the 2007 Safer Chemicals Task Force report on this point. It describes how the lack of adequate regulation of older toxic chemicals created a “Technology Gap” which failed to motivate US chemical producers to develop green chemistry technologies.

In the face of paralysis at the federal level, Maine owes it to its children, and its emerging Green businesses, to protect the landmark statute that it developed carefully and conscientiously over a five year process.

LD 1041 - An Act To Simplify and Enhance Pest Control Notification, LD 228 - An Act To Revise Notification Requirements for Pesticide Application, and LD 16 - An Act To Revise Notification Requirements for Pesticides Applications Using Aircraft or Air-carrier Equipment

Testimony of MOFGA Regarding

LD 1041 - An Act To Simplify and Enhance Pest Control Notification

LD 228 - An Act To Revise Notification Requirements for Pesticide Application

and

LD 16 - An Act To Revise Notification Requirements for Pesticides Applications Using Aircraft or Air-carrier Equipment

Presented to the Joint Standing Committee on Agriculture, Conservation and Forestry

by Heather Spalding, Associate Director of MOFGA

April 7, 2011

Good afternoon Senator Sherman, Representative Edgecomb and members of the Joint Standing Committee on Agriculture, Conservation and Forestry. My name is Heather Spalding and I am the Associate Director of the Maine Organic Farmers and Gardeners Association (MOFGA). I am here today to express MOFGA’s support for LD 1041, and opposition to LDs 228 and 16.

I want to thank Representative Cray for introducing LD 1041. Maine pesticide spray notification laws should provide a common-sense framework for communication among stakeholders - the citizens concerned about exposure to drift AND the business people who rely on pesticide spraying for their economic success. LD 1041 is the next logical step in more than a decade-long process of developing Maine’s notification system.

LD 1041 will ensure Maine citizen's right to know about all nearby, outdoor pesticide spray activities by establishing a clear and effective notification system that will work for everyone: landowners, neighbors as well as public administrators.

It will ensure current contact information for registrants, and make it easy for land managers to identify and notify neighbors about planned pesticide applications.

It endorses a notification system that seeks to minimize the administrative and financial burdens on land managers who spray pesticides outdoors.

It will ensure that the information being relayed to registrants is timely, consistent, informative and easy to understand.

It will direct Maine's Board of Pesticides Control to establish spray notification distance standards for specific application technologies, rather than allowing a political game of volleyball on this particular issue.

Land managers, neighbors, community members, and enforcement agencies all will benefit from the passage of LD 1041.

We are very concerned about the prospect of LDs 228 and 16. The bills throw out all the cooperative strategizing and compromises made by a diverse group of stakeholders over the past eleven years, the past two and a half in particular. We object not only to the minimal notification distances and fees remaining in Chapter 28, but also the confusing and disparate systems for different sectors that spray pesticides. This time last year it seemed that policy makers and land managers understood – it’s not about who is spraying what, it’s about the technologies. There should be no exemptions based on economic sector, geography or population density. People want to know when pesticides might drift onto their properties and, if pesticide sprayers refuse the responsibility of first outreach, neighbors should be able to self-identify in a non-confrontational way that ensures notification about all types of nearby, outdoor, spraying.

Each time a pesticide spraying land manager objects to a proposed element for the notification system, the Board of Pesticides Control dutifully researches it and works to address it. At a BPC meeting last summer, many of us saw an impressive presentation of an internet-based system that would instantly identify all registrants within a certain distance of an intended spray area, and that could instantly send notification electronically to those registrants. I hope this Committee will not vote to throw all of that excellent work away, especially after it requested the work from the BPC last Spring.

Opponents of the comprehensive spray notification registry keep changing their arguments. They supported 1293 unanimously in 2009, then worked to repeal it last year. They unanimously supported 1547 in 2010, and are angrily trying to repeal it now. What will they try to promote next session, a “don’t ask, don’t tell” system. It appears that they just don’t want to alarm the neighbors.

We hope that the Legislature will not hide its head in the sand on this one, and will acknowledge the huge body of evidence about pesticide-induced diseases in humans. People want to know and should have easy and consistent access to information about spraying.

MOFGA maintains that the onus of responsibility for notification of all neighbors within a specific distance of spraying, depending on the technology used, should be on the land managers doing the spraying, not on the innocent bystanders. We lost that debate in this forum last year. Now we’re faced with a threat to roll back Maine’s notification rights even further. What recourse will remain when this is all said and done – litigation? referendums? Definitely more conflict. Likely more legislation. And if there’s one thing likely to lead to litigation, it is not having a clear process for working out these issues, a process that exists now in the existing legislation that would be clarified by LD 1041.

Please support LD 1041 and move this process forward so that it works for everyone.

Thank you.