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  You are here:  ProgramsPublic Policy InitiativesMaine Board of Pesticides Control ReportsBPC – Oct 28 2005   
 Maine BPC Report – Oct. 28, 2005 Minimize


Rules for Applying Pesticides Indoors: Two Decades and Counting
Enforcement Action, Consent Agreements



Rules for Applying Pesticides Indoors: Two Decades and Counting

The Maine Board of Pesticides Control (BPC) opened its Oct. 28 meeting with a workshop session to decide the fate of the controversial proposed Chapter 26, a rule to implement Integrated Pest Management (IPM) in all buildings open to the public other than K-12 schools (already covered by a similar rule). Since the Sept. 9 public hearing, at which seven people opposed the rule and four supported it, the BPC had received nine opposing letters, 229 identical opposing postcards, and 51 supportive email messages. The staff provided the board with a new version of the rule, with such substantial revisions that the board had to discard the previous version and initiate a new rulemaking process, which will include further opportunity for public hearing.

To address the concern expressed by some members of the pest control industry that the new restrictions would encourage business owners to take a “do-it-yourself” approach to pesticide applications, the definition of an “applicator” was expanded to include any person applying pesticides to buildings occupied by the public, as well as licensed commercial applicators. The staff also clarified that when the building manager is not the pesticide applicator, the applicator must provide the required information about a spray event to interested parties.

The previous version of the rule required building managers to notify personally new employees, tenants, inmates or long-term patients that they had the right to be notified before certain types of pesticide applications and that if they chose to be notified they had the right to certain information about the place, time and materials to be used for the application. The new version affords the same rights to building residents, but the notification for employees is provided in the form of a “conspicuous” sign in a common area, such as a lunchroom or entrance hall. Employees could at any time add themselves to a building registry to be notified before spray events. New language was added to forbid that building residents “delay or prohibit the applicator from performing the pesticide application as scheduled” through requests for additional information.

Applicators working in rented residences are no longer required to notify all tenants in the building unless they are making an application to a common area. The tenant of the residence to be treated still must be notified, and he or she could refuse treatment until alternative measures have been tried and have failed to control a hazardous pest problem. If the town’s public health or code enforcement officer determines “a need for immediate pest management,” the tenant’s objections may be overruled without any attempt at alternative control measures. Board members Lee Humphreys and Dan Simmonds expressed concern at the lack of notification for nearby tenants, pointing out that if the lawn next door was sprayed, then a tenant on the state notification registry would be notified, but if the apartment next door was sprayed, that tenant would have no protection. Assistant Attorney General Mark Randlett suggested that the rule could require that a notice be posted in a public area of the building stating that an application would occur somewhere in the building at a certain time; the board also considered adding indoor spray events to the jurisdiction of the current registry or setting up a separate indoor application registry.

The staff removed the requirement to treat buildings during unoccupied periods, in response to opponents’ complaints that the exemption for 24-7 facilities was unfair. This requirement was replaced by “risk minimization” standards that require applicators to “consider” factors such as the presence of children or chemically sensitive individuals, the likelihood of human or animal exposure, the volatility of the product, and the nature of the building’s ventilation system. Though head staff member Bob Batteese claimed that if someone complained about an irresponsible application the burden of proof would be on the applicator to show that he did consider these factors, the rule does not actually prevent applications from occurring under adverse circumstances.

The board also discussed the idea that a universal logo with a phone number could be posted on the entrance of all public buildings to provide building residents, employees and the public with the opportunity to inquire about recent or future spray events. Such a logo was supported at the September public hearing by MOFGA and members of the pest control industry, although the latter wanted it to replace the notification standards, and MOFGA wanted it to supplement them. Board chair Carol Eckert, however, insisted that a logo would be more difficult to enforce than a notice posted inside the building, and supported it only as a voluntary measure. She agreed with MOFGA that the logo alone would be an insufficient replacement for notification standards. Board member John Jemison complained that the staff’s current logo does not distinguish between sanitation methods (the use of detergents and other cleaning products) and actual pesticide treatment. The logo project may be handed over to the board’s new public relations director.

The board began its regular meeting with a review of the staff’s Program Evaluation Report, a paper required by the Joint Standing Committee on Agriculture, Conservation, and Forestry. The report, due on Nov. 1, was prepared so hastily that some faulty baseline figures in the “Performance Measures” section showed an increase in product registrations and public compliance with board rules that may or may not actually exist. The report also included a list of “emerging issues,” which sparked a discussion of recent efforts by Environment Maine and the Toxics Action Center to lobby the BPC about pesticide use in blueberry fields. The environmental organizations petition drives collected signatures in support of banning aerial pesticide applications to agricultural fields, requiring the board to monitor drift and runoff, banning agricultural use of organophosphate pesticides, and removing the registration fee for the Pesticide Notification Registry. If enough signatures were collected – and Batteese said early reports indicate that the petitions had been filled at the Common Ground Country Fair – the BPC will have to initiate a rulemaking process for each measure (although that does not ensure passage of any of them). Board chair Carol Eckert voiced concern that the time the board would need to devote to these issues could again impede progress on the Chapter 26 rule, which has been in process for two decades.

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Enforcement Action, Consent Agreements

Chief of Compliance Henry Jennings presented an enforcement action to be taken against Cory Capitan, formerly a commercial pesticide applicator working for Modern Pest Services. Capitan successfully offered 11 of his employer’s customers his private services at a reduced rate, although he did not hold a license to perform commercial applications independently. The staff had offered a consent agreement fining Capitan $2,995 – an amount equal to his profits from the illegal applications – but received no response. The BPC referred the matter to the Attorney General’s office for enforcement.

The board approved six consent agreements negotiated with persons and companies in violation of state pesticide rules. Greg Moyer Landscaping of Bath was fined $250 for permitting its employees to apply pesticides to customers’ properties even though none of the employees were licensed commercial applicators.

Paul Dumont of Sunshine Apiary in Windsor was fined $750 for using state Apiarist Anthony Jadczak’s applicator license without Jadczak’s permission to purchase Phostoxin, a restricted use pesticide used to control the greater wax moth. Phostoxin is potentially lethal to the applicator if misused and accidentally inhaled. Dumont also admitted to using the insecticide Mavrik to control varroa mites in his beehives, although Mavrik is not labeled for such use; any use of a pesticide that is not in accordance with the label is illegal. Degesch America, the company that sold the Phostoxin to Dumont, was fined $500 for distributing a restricted use pesticide to an unlicensed person and for distributing a restricted use pesticide without holding the proper distributor’s license.

Lewis Brothers Golf & Property Services of Falmouth was fined $100 for allowing an unlicensed employee to apply rotenone-pyrethrins and acetic acid to customers’ properties without proper supervision.

Basham Tree Service of South China was fined $100 for spraying the herbicide Krenite S within 50 feet of a stream in Byron when clearing roadsides for the Maine Department of Transportation. MDOT representative Bob Moosmann said that the department has recently started hiring roadside services through contracting bids instead of paying companies an hourly fee, which may encourage workers to take shortcuts, such as using power sprayers instead of backpack sprayers, when they are not directly supervised. However, board inspectors hidden in nearby brush observed the incident. Board member John Jemison voted against this agreement, explaining that in cases involving water quality issues he supported higher fines of at least $250.

TruGreen ChemLawn of Westbrook was fined $1000 for failing to notify a family on the Maine Pesticide Notification Registry of a pesticide application within 250 feet of their residence. The fine for this offense is usually $500, but the company also committed a different violation earlier in the year, when it was fined $3000 for applying pesticides to the wrong properties. The treated properties had the same street numbers as the correct properties, but were on a street with a different name in a neighboring town. In addition to the fine, the board responded to this incident by sending a letter to all of Maine’s Commercial Master Pesticide Applicators notifying them of the board’s new policy requiring companies to make a positive identification of a property (e.g. GPS coordinates or an electric meter number) before performing a treatment.

– Alice Percy

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