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  You are here:  ProgramsPublic Policy InitiativesMaine Board of Pesticides Control ReportsBPC – Nov '05-Jan '05   
 Maine Board of Pesticides Control – Nov. 2004 to Jan. 2005 Minimize


BPC Holds Final Hearing on Indoor Pesticide Regulations
Atrazine Spill
Blueberry Fungicide Approved; Organic Control to be Tested
Migrant Worker Training
Consent Agreements
Railroad Variance, Again
Clarification of IPM in Schools
Critical Pesticide Control Area Amendment Warrants Public Hearing
Board Questions Proposed Bill for Removing Chemicals from Schools
Invasive Aquatic Species Problem Snowballing


BPC Holds Final Hearing on Indoor Pesticide Regulations

The Maine Board of Pesticides Control (BPC) opened its Nov. 5 meeting with another public informational gathering session on standards for integrated pest management (IPM) in indoor pesticide applications. Health care and correctional facilities personnel commented previously; this session was open to representatives of the food handling industries.

Dick Groton, CEO and president of the Maine Restaurant Association, challenged the board’s “assumption that less is best” for pesticide use. “I have a problem with going beyond what the manufacturer, the EPA and national organizations say are the standards – why isn’t that good enough for Maine?” he asked. He doubted that the proposed rule would reduce the number of pesticide applications or the public’s exposure to pesticides, because most applications in restaurants are spot or crack and crevice treatments in storerooms or kitchens. Gary Fish, the board’s certification specialist, reminded Groton that the proposed rule was to focus on employees, who do frequent storerooms and kitchens, rather than on the public. Groton proposed an alternative to the proposed IPM rule: that a “pesticides used here” symbol be required at doorways of appropriate buildings; the symbol would carry a phone number that employees and members of the public could call for more information about recent or planned pesticide applications.

Patricia Aho of the Maine Oil Dealers Association said that it would be difficult or impossible for convenience stores operating around the clock to satisfy the requirement of spraying during unoccupied periods. She requested clarification on the definition of a “regular occupant” who must be notified before a pesticide application: Would this include frequently visiting delivery drivers as well as employees? She asked for a clearer definition of the “heat, ventilation and air conditioning systems” that must be shut down during applications, as turning off all forced-air systems in a convenience store could damage shelved goods.

Aho, Groton and other industry representatives who generally opposed the proposed rule said they are willing to involve their industry organizations in educational outreach programs so that employees would be more aware of pest prevention and pesticide safety issues. Most also requested that the board again convene a stakeholders’ group as it did in 1999 to develop IPM rules for K-12 schools. However, Assistant Attorney General Mark Randlett said that while the board could receive information from the regulated public, the public could not craft legal language; the 1999 stakeholders’ group had been convened before certain changes in administrative procedure.

Despite opposition, the board maintained that some kind of IPM rule was necessary and was skeptical of some attendants’ doomsday scenarios. Board member Lee Humphreys, doubtful of earlier assertions that restaurants and grocery stores could meet Food Code requirements only through preventive spraying, had spoken with owners of her favorite food co-ops and restaurants and found several who did not use preventive spraying, including some in older buildings that were not “bug-tight” or designed as food-handling facilities. When she asked food co-op owners about testimony from the grocery industry that pest insects came in on shipments of produce, they said they had never encountered this problem, even though most of the produce they receive is organic and could therefore be expected to carry more insects.

LeBelle Hicks, BPC toxicologist, noted that while the EPA regulates the substance of pesticides, it does not necessarily regulate application equipment. She cited the “mosquito mister” type of automatic applicator that periodically emits pyrethrins or other insecticides in some food areas. The proposed IPM rule would significantly hamper applications of this sort.

On Dec. 17, the BPC heard from government agencies, child care providers, environmental and health organizations and the general public Amanda Sears of the Environmental Health Strategy Center applauded the board for recognizing the public’s right to know when pesticides are applied and noted that public health is best served by “minimizing exposure to pests and minimizing exposure to pesticides.” Sears believes that the original plan of requiring a 24-hour reentry period after use of pesticides that did not have reentry periods specified on their labels was insufficient due to lack of knowledge about the dangers of many pesticides. She recommended increasing the required reentry period for these.

Ruth Gabey, representing the Maine Green Independent Party, spoke about complications of determining safe levels of exposure to pesticides. She cited the danger of “inert” ingredients that are carcinogens in their own right or may increase the carcinogenicity of active ingredients without being carcinogens themselves.

Sharon Tisher, representing MOFGA, said that industry opposition to the rule should not discourage the board, because industry representatives always object to strengthened regulations – another sign that such regulation was necessary to protect the public good. “The fact that a commercial pest control operator argued [at the July hearing] for his right to use routine spraying as preventative pest control indicates that there remain serious misconceptions about the nature of and need for integrated pest management.” She referred to Acadia Hospital’s strict IPM policy, which has attracted national attention and was adopted partly due to studies showing that exposure to some pesticides can have neurological effects leading to aggressive behavior, a danger in a facility that treats mental illness. Tisher said she would support board chair Dr. Carol Eckert’s suggestion for an “emergency exemption” clause for urgent situations.

Sarah Rockwell, a social worker from Portland, advocated for low-income housing tenants or recent immigrants. Since those illiterate in English would not benefit from written notification, she recommended requiring verbal notification in the native language of the tenant or employee. She also recommended that notification include health risks of the pesticide in question, so that people understood the reason for the required reentry period.

Jody Spear, who had submitted written comments favoring the proposed rule after the July public hearing, reaffirmed that support in person at the Dec. meeting. Citing evidence previously provided to the board by Tisher, she reminded board members that pesticides as a group of chemicals can have long-reaching health effects, especially on children. She therefore recommended that the rule require notification to customers in public places as well as to employees.

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Atrazine Spill

At its Dec. 17 meeting, the board considered the June 2003 case in Canton of David Wainwright, a local farmer who earned a small side income applying pesticides to other farmers’ nearby fields. Wainwright was not a licensed commercial applicator (landowners have no legal obligation to ensure that a hired applicator is licensed), nor did he maintain pesticide application records. His activities were discovered when Sam Adams of New Sharon called the BPC to report a pesticide spill in the driveway of his business. Wainwright had pulled to the side of the road while hauling a sprayer, and the sprayer had leaked over 40 gallons of contaminated rinse water, leaving a 9-foot-long yellow puddle. Inspector Raymond Connors identified the substance as pendimethylin (Prowl) mixed with atrazine. Atrazine is classified as a restricted use pesticide. Although he initially cooperated with the investigation, eventually Wainwright failed to respond to phone calls or to a consent agreement mailed to him that would have fined him $1500 for his violations. The BPC referred the matter to the Attorney General’s office.

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Blueberry Fungicide Approved; Organic Control to be Tested

The board approved its seventh emergency registration request to the EPA for propiconazole, a systemic fungicide commercially available as Orbit used to control mummy berry disease in blueberries. Cooperative Extension blueberry specialist David Yarborough cited 10 to 20% infection rates last year, while 2.5% is the threshold for Orbit application. Growers routinely apply Orbit preventively in hot, humid summers, since this weather fosters fungal growth. In a phone call with a Wyman’s representative, BPC chief of staff Bob Batteese learned that last year’s wet summer had left blueberry fields heavily inoculated with mummy berry, and another wet season could cause significant crop losses. Last year the EPA refused to grant this emergency registration and recommended that growers use fenbuconazole (commercially available as Indar), but growers complained that fenbuconazole provided inadequate protection.

The EPA did not grant the 2004 emergency registration request because the Natural Resources Defense Council objected to the product’s incomplete safety review. Although the product is applied in May or June, well before migrant workers arrive for harvest, the chemical can persist for several months in the top 6 inches of soil by adhering to soil particles. Larry Lack and Lee Ann Ward, residents of New Brunswick who own organic blueberry fields in Whitneyville, Maine, wrote to the board objecting to the “serious misuse of the ‘emergency’ provision” that “makes a mockery of the Board’s own website address ‘thinkfirstspraylast.’” (Neither propiconazole nor fenbuconazole are permitted in organic blueberry production.) Burning fields can suppress but will not eliminate the disease, and many fields are no longer burned due to fire hazard or air pollution concerns. This spring, the University of Maine will test organic control of mummy berry. Although most board members were displeased at renewing the emergency registration of a product with an incomplete safety review, all but Humphreys voted for the request.

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Migrant Worker Training

The board unanimously voted to fund a grant for the Career Advancement Center’s Training & Development Corporation and the Maine Migrant Health Program to hire one AmeriCorps member and one health educator to train migrant farm workers and their children about safely handling pesticides. Up to 16,000 migrant farm workers are employed annually in Maine, mostly on Aroostook County potato and broccoli farms but also on blueberry fields in coastal areas. Legally, these workers must receive pesticide safety training every five years. In 900 working hours, an AmeriCorps trainer can educate several thousand migrant workers annually. Approximately 60% of migrant workers have limited English, and few workers in the broccoli industry speak English well (most are Hispanic). Therefore, TDC and MMHP hire only bilingual trainers. In 2004, the BPC funded the entire cost of hiring a trainer, because no federal funding was available for an AmeriCorps trainer; this year federal funding will be available, so the BPC only had to match grants.

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Consent Agreements

At the Nov. meeting, Sterling Insect and Lawn Control of South Portland was fined $150 for failing to properly notify a Scarborough woman who was listed on the Pesticide Notification Registry that it was going to apply pesticides within 250 feet of her property. The woman wished to harvest her organic garden before it was exposed to pesticide drift. The company notified her one hour before it sprayed, providing insufficient time for harvest. Maine law requires pesticide applicators to notify people on the Registry between six hours and 14 days before an application.

The board fined Mainely Grass of York $400 for making two unrequested pesticide applications to the lawn of a York residence. The applicator stated that before the first application, he spoke to an adult at the residence who helped him move boats out of the way, so he thought he was at the correct site. No complaints were lodged until after a second application a month later.

Fairmont Hardware of Bangor was fined $500 for failing to obtain a pesticide distribution license for five out of six years and for offering a product containing chlorpyrifos, an organophosphate that the EPA has banned for general use.

Turf Doctor of Falmouth was fined $500 for poor maintenance of its warehouse in Waldo. Small, uncontained piles of pesticide granules were present, as were containers for liquid pesticides that had been thrown out without having been rinsed.

In Dec., the board passed two consent agreements that had been negotiated by the staff. The South Portland Parks and Recreation Department was fined $250 for spraying herbicide in tree wells at the School Street Park without notifying a woman on the Pesticide Notification Registry whose property was within 250 feet of the sprayed area. The Sam’s Club company was fined $450 for failing to display signs where pesticides were offered for sale in its Augusta, Bangor and Scarborough stores. The stores carry three pesticide products during the summer, but inspectors failed to find display area signs on nine dates over five years. After the BPC notified the company’s headquarters in Arkansas about the fine, it was informed that the company has issued signs to identify the pesticide display areas.

The Dec. meeting concluded with the reelection of Carol Eckert and Andrew Berry as chair and vice-chair respectively.

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Railroad Variance, Again

The BPC began its January 14 meeting by reinstating a longstanding variance for the Eastern Maine Railway’s vegetation management program. Railway companies remove vegetation around tracks to allow inspectors to see damaged fastenings, switches and rails. The Maine Department of Transportation and various private rail companies annually request (and are granted) an exemption from the requirement in the Standards of Conduct for Pesticide Applications to map all sensitive areas within 500 feet of the spray pattern. The contracting firm applying for the variance stated that “railroads run through towns and alongside rivers, lakes, ponds and streams. It would be an extreme hardship to the railroad to note each sensitive area – the abutting property owners, homes, buildings, apartments or other dwellings.” They propose to protect sensitive areas by having a spotter ahead of the sprayer, leaving a 10-foot buffer around any open water, and using drift control agents.

The BPC had protested the 2004 application for this variance, having tired of allowing a significant exception to the drift management rules annually; it demanded proof from the MDOT or the spray contracting firms that the 10-foot buffer really prevented herbicides from drifting into open waterways. When the state and firms refused to fund drift studies, the BPC conducted its own small study. Initial results from 12 water and drift card samples taken by BPC staff last summer showed evidence of drift on only one drift card. (According to a staff member, this occurred when the sprayer operator turned the machine off too late.) Further results are being awaited.

This year’s variance – which applied only to Roundup, not to the more mobile Diuron, which has been used in previous years – was granted without opposition, although the board did insist on an additional provision requiring the spray company to notify the public through newspaper advertisements.

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Clarification of IPM in Schools

The board discussed several proposed amendments to its regulations. The recently instated Chapter 27, Standards for Pesticide Applications and Public Notification in Schools, was clarified at several points. The definition of “school grounds” was amended to include any outdoor area regularly used by schools (even if owned by a town or private citizen). Requirements for the IPM Pest Management Coordinator were changed to indicate that the coordinator must be a school employee, not a contracted pest control operator. The provision forbidding applying pesticides in the presence of other people was amended to allow pesticide applicators to set out bait blocks, pastes or gels in the presence of informed staff members (but never in the presence of students). The requirement to turn off heating, ventilation and air conditioning systems while applying potentially volatile pesticides was revised to exclude heating systems that are independent of ventilation systems (e.g., kerosene heaters in portable classrooms), because these are unlikely to transfer pesticide residues from one area to another.

Chapter 31, Certification and Licensing Provisions/ Commercial Applicators, was revised to exempt from licensing requirements all pet groomers and persons using disinfectants for private residential swimming pools and spas, and was revised to make certification and recertification more efficient and to prevent false claims regarding attendance of recertification meetings.

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Critical Pesticide Control Area Amendment Warrants Public Hearing

Chapter 60, Designation of Critical Pesticide Control Areas, was amended to exclude from protection individuals or single-family homes; if this amendment passes, only groups experiencing long-term exposure to pesticide applications can apply to the BPC for a designation as a critical pesticide control area. (An example given was a nursing home located near a golf course.) According to Eckert, this amendment is necessary because “the process is unworkable” for private individuals. Due to privacy laws, an individual’s medical records may be unavailable to prove that he or she is sensitive to a particular group of chemicals. Furthermore the board never adequately defined its requirement for “verified medical data” and was unsure whether that included the unsubstantiated opinion of a family doctor, or opinions of herbalists or other alternative medical practitioners.

Anticipating public opposition to this amendment (MOFGA has already registered its disapprobation), the board attempted to brainstorm alternative protections for individuals or families from pesticide applications. Individuals may add themselves to the pesticide notification registry (which only warns of nearby pesticide applications, but does not prevent them), and the board discussed waiving the $20 fee for individuals claiming chemical sensitivity. Another suggestion was to strengthen buffer strip regulations. Chief of compliance Henry Jennings suggested, “At a minimum we should hold applicators spraying near a sensitive individual to some kind of best management practice.” Eckert countered, “The problem is if someone says they’re sensitive, we have to believe them; all we can do is try to get a second person to confirm that.”

The amendment to Chapter 60, as well as the amendments to Chapters 27 and 31, will be discussed in a March 18 public hearing.

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Board Questions Proposed Bill for Removing Chemicals from Schools

The board reviewed a bill proposed by the Maine Department of Environmental Protection to fund the removal of hazardous chemicals from schools by applying a fee to general use pesticides sold in the state. Originally the deputy commissioner of the DEP had been scheduled to advocate for the bill before the board, but at the time of the meeting, the bill had been temporarily postponed to await passage of Governor Baldacci’s Property Tax Relief Bill and was being revised to narrow the category of pesticides to which the fee would apply. According to Eckert, the bill has received lots of support from the state’s environmental community. Sharon Tisher, on behalf of MOFGA and the Alliance for a Clean and Healthy Maine, spoke with Eckert and with Chief of Staff Bob Batteese expressing support of the bill on the grounds that any action that raises the cost of pesticides will tend to decrease their use, leading to a safer environment for Maine citizens.

Eckert, however, objected to the funding structure of the bill, saying that it would create work for BPC staff (developing databases for pesticides and distributors to which the bill applies and enforcing the fees on out-of-state distributors with whom they have previously had compliance problems) but would not generate funds for the BPC budget. “I am not opposed to getting toxic substances out of schools in any way,” she said, “but very few of these [chemicals] are actually pesticides … they are mostly lab chemicals.” In light of the board’s 2003 IPM in Schools regulation, Bob Batteese claimed, “It is … difficult for the board to believe that many school systems have accumulated large quantities of pesticides on their properties … the board strongly believes that it should be consulted before any other agency attempts to raise fees on pesticides for purposes other than to support board programs.”

A review of the 2004 Registration Summary revealed that product registrations increased 6.1% from 2003 despite an approximately 10% fee increase. The board acquired $17,000 more in revenues than it spent in 2004, although usually it operates over budget. “Revenue going up is good news, but use going up is bad news,” said Humphreys. “Every bit of that revenue has to be used to educate people.”

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Invasive Aquatic Species Problem Snowballing

The board reviewed a list of precloture requests related to pesticide use filed by legislators for the upcoming session. Proposed bills range from “An Act to Improve Public Understanding in Rulemaking” to “An Act to Authorize the Department of Environmental Protection to Issue Emergency Permits for the Application of Herbicides and Pesticides.” The latter is in response to increasing problems with invasive aquatic species in Maine waters. Most invasive species propagate vegetatively, so plant fragments remaining after mechanical removal will reinfect lakes. The DEP claims that hand-pulling aquatic weeds is not only labor-intensive but also no longer effective, and is therefore trying repeated applications of aquatic herbicides. Unlike mechanically removed weeds, plants killed by herbicides remain in the water and decompose, releasing nutrients that may contribute to lake eutrophication, depletion of oxygen and consequent fish kills. Aquatic herbicides applied to invasive species may also adversely affect nontarget plant species. Board member Clyde Walton said the BPC may be relegated to a minor role on this issue. “It’s not going to stop, it’s going to snowball.”

– Alice Torbert

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