On September 21, 2003, the Board of Pesticides Control (BPC) held a public hearing in Augusta on a “citizen’s petition” submitted by lobbyist Robert Tardy on behalf of a pesticides industry group, “Responsible Industry for a Sound Environment” (RISE). RISE sought repeal of a BPC rule adopted last May, which classified aquatic pesticides as “restricted use,” meaning that they could be sold only by licensed restricted use dealers and could be used only by individuals having a pesticide applicator’s license. The rule aimed to limit over-the-counter and Internet availability of aquatic herbicides for use by homeowners. Because of the risks to aquatic ecosystems from herbicide use, a DEP permit is required for every application except self-contained farm ponds. Many citizens are unaware of the permit requirement, however, and are tempted to treat their ponds and lakes themselves. RISE contends that the restriction will unnecessarily limit sales of pesticides in Maine.
None of the 159 “concerned citizens” who had signed Tardy’s petition to repeal the aquatic herbicide restrictions showed up at the November 21 public hearing in Augusta, nor did Tardy himself. The only one present to support the petition was RISE employee Jim Skillen, who sheepishly introduced himself as the “skunk at the garden party.” Skillen explained that RISE generally opposes regulations that make general use pesticides restricted use (requiring a special license to sell or use them) based “on the site of application.” Skillen argued that under federal statute regulating pesticides (FIFRA), pesticides should receive special restrictions based only on acute toxicity, for worker protection. Skillen also argued that this rule won’t address the main problem in Maine, that of Internet sales of aquatic pesticides, and “only penalizes law abiding citizens.”
Eight people testified against the proposed repeal of the aquatic pesticides regulation. First was Paul Gregory, previously public relations officer for the BPC, now an environmental specialist with the DEP, who works in the area of invasive aquatic plant species. Gregory explained that a DEP permit is required for a homeowner to apply a weedkiller to a public water body, which includes all lakes and ponds except contained farm ponds. Permits are rarely issued, only in cases where the risk from the invasive plant outweighs the harm that pesticides can do to the lake. In fact, Gregory related that the only permit the DEP issued last year was to itself, for an effort to keep invasive hydrilla in a southern Maine pond from spreading throughout the state. Gregory described aquatic herbicides as extremely potent – noting that less than five gallons was used to treat the 46-acre pond; the herbicide was able to control the spread of new hydrilla plants, but also effectively knocked back the population of water lilies and other vascular plants.
The availability of aquatic herbicides over the counter in Maine effectively circumvents DEP regulations requiring a permit, Gregory noted, and is a “tacit invitation to break the law.” “Keeping up with the Joneses” and the “more is better” mentality along a lake shore can severely impact the lake environment, he added.
Scott Williams, a biologist and executive director of the Maine Volunteer Lake Water Monitoring Program, agreed that applying aquatic pesticides “shouldn’t be undertaken by a nonprofessional”; that the public is not aware of the delicate structure of the aquatic environment; and that destruction of habitat can alter the food chain and affect the fisheries.
Scott Bradford of the Maine Bass Federation expressed similar concerns for fish populations, noting that “vegetation growth is mother nature doing its job.” Roland Bass, from Manchester, testified that he used to live in Florida, where lakes are routinely treated with herbicides. Every five years, the lakes must be drained and the bottoms scraped to remove layers of polluted sediment that the herbicide creates.
Tracey Walls, a wetlands ecologist who works at the University of Maine, also came to oppose the petition. Walls had originally requested that the BPC regulate aquatic pesticides two years ago, after hearing a story on Maine Public Radio about the illegality of applying these pesticides to Maine lakes. The day after the broadcast, Walls was in a hardware store and overheard a customer asking for “something to kill weeds in a lake,” and “they sold it to them.” Walls argued that “most people are law abiding,” and if they know what the law is, they will comply.
John Van Bork opposed the RISE petition on behalf of the Kennebec Water District, the Maine Water Utilities Association, and “anyone else who has a pipe in a lake.” Van Bork stated that the Water District had to test every year for a long list of chemicals, including many pesticides. For example, 2,4-D has an allowable maximum for public water supplies of only 70 parts per billion. The list of pesticides to monitor is ever growing, with more pesticides at lower permissible amounts. “What may be a perfectly fine herbicide now 20 years from now may be a disaster.” He said that he used to treat the floor of his camp with PCB to kill carpenter ants, and now the allowable amount of PCBs in drinking water is 500 parts per trillion: “That is nothing.”
Sharon Tisher testified on behalf of MOFGA and distributed a summary of the ecological effects of 2,4-D, including its toxicity to fish, particularly salmon, and other aquatic animals, from the Journal of Pesticide Reform. Tisher disputed RISE representative Skillen’s argument that the BPC rule “does nothing to prevent Internet sales.” She noted that a sale involves two parties, the seller and the buyer (and ultimately user). The rule gives the BPC authority to regulate the buyer in an Internet sale, who under the rule must be a licensed applicator to purchase and use aquatic pesticides. The BPC Assistant Attorney General Mark Randlett interjected that the Attorney General’s office also takes the position that out-of-state companies who sell to Maine customers are “distributing” in Maine and hence subject to enforcement for violating the law.
At its January 23 meeting, the Board unanimously rejected repealing the rule and adopted the staff amendment that develops a list of products covered by the rule that have aquatic uses clearly listed on the container’s label. The board’s basis statement for its action noted that “the 15 people who were opposed to repeal of the rule represented a wide range of environmental, fishing, property owner and public drinking water interests. The [Board] agreed with them that the rule should not be repealed, because it is useful in preventing illegal use and protecting state waters.”
Minnesota Aquatic Herbicide Manufacturer Violates Consent Decree
Fewer than nine months after entering into a consent decree regarding its illegal sales of aquatic pesticides to Maine citizens, Aquacide Company of White Bear Lake, Minnesota, was caught red handed in a violation of both the consent decree and the new regulation on aquatic pesticide sales.
In 2001, a complaint from a resident on Grondin Pond in Scarborough resulted in a joint investigation by the Department of Environmental Protection and the BPC, which revealed that Aquacide Pellets were being purchased and illegally applied by lakefront property owners throughout the state. Aquacide’s product was not registered in Maine, nor was the company licensed as a Maine pesticide dealer. Its promotional material, moreover, suggested that the product was approved for use in all states, and did not reveal that in Maine homeowners needed to obtain a DEP permit (rarely granted) to apply pesticides to water bodies.
Aquacide settled the enforcement action in December 2002 by agreeing to pay a $6,000 fine, $4,500 of which was suspended so long as the company complied with terms of the decree. Aquacide promised to register its product in Maine before selling it here, to obtain a Maine pesticide dealer’s license, and to add a statement in its catalog about the potential need to obtain state permits.
The Aquacide case spotlighted the general problem of illegal herbicide use in Maine’s ponds and lakes, and eventually led the board to adopt the new rule requiring that aquatic herbicides be sold only by Maine licensed restricted use pesticide dealers and be sold only to licensed pesticide applicators.
Following the consent decree, Aquacide registered its product as a pesticide in Maine but did not register as a pesticide dealer. On August 28, 2003, Bob Batteese, BPC Director, called the Aquacide Company and told the person who answered the phone that he wanted to control aquatic weeds in China Lake. Batteese asked if it would be ok to use Aquacide Pellets in Maine, and he was assured it would be ok. He then placed an order for 10 pounds of Aquacide Pellets that were delivered to his house via UPS, in violation of both the consent decree and BPC regulations. A referral of the matter to the Attorney General for enforcement action was placed on the agenda of the board’s January 23 meeting, but was tabled, as Aquacide’s representative had called enforcement staff and indicated that the company wanted to negotiate an out-of-court settlement.
Board Requests Study of Impact of RR Right of Way Herbicides
Approximately 12,000 miles of railroad rights of way exist in Maine, and most receive annual applications of herbicide to prevent growth of grasses and brush on the railway beds. Railroad operators believe that plant growth presents a significant safety hazard by obstructing routine safety inspections of the tracks; these inspections help prevent derailments. Railroads have traditionally received annual variances from the BPC from the requirement of mapping sensitive areas, including wetlands, rivers and lakes, where they plan to apply herbicides. They have also been allowed a minimal 10-foot buffer requirement in their applications, rather than the 50-foot buffer required for other rights of ways, such as highways and utilities.
In September 2002, the board decided to scrutinize the potential environmental impact of herbicide use by railroads. It voted to convene a stakeholders group of railroad companies, including the Maine DOT, which owns and maintains 300 miles of mostly inoperative rights of ways. The board asked the group to develop a monitoring plan for studying drift and leaching of herbicides in waters adjacent to application sites, and asked that the studies be conducted at the railroads’ expense.
At its January 23 meeting, the board heard an interim report of the stakeholder group from Robert Moosmann, the MDOT Senior Landscape Architect who volunteered to organize and chair the group. Moosmann submitted a tentative proposal for a monitoring plan that calls for collecting 30 drift card samples and 15 water samples split equally over three rail lines and three days of application. In addition, the Portland Water District will provide results of its water sampling of Sebago Lake adjacent to the rail line in Sebago Lake Village, and the Maine Drinking Water Program will sample public wells adjacent to tracks receiving herbicide applications. Moosmann confessed, however, that he “can’t say all parties are on board” with the monitoring plan. Moosmann stated that the meeting of the railroads to attempt to respond to the board’s request was “contentious.” Three of the six rail companies – Guilford Rail, Montreal Maine & Atlantic, and Eastern Maine Railroad – are not yet committed to “footing the bill” for this monitoring. They question whether a problem really exists and note that monitoring last summer showed nothing, so “why continue to chase a dead horse?”
New board chair Carol Eckert, M.D., reemphasized the board’s commitment to having this work done. “We’d really like to see this monitoring go through, or otherwise we have to change our approach in granting variances.” Director Bob Batteese observed that the railroads had to weigh the potential $12,000 cost of doing the monitoring against the added maintenance cost of having a 50-foot, instead of 10-foot, buffer, and deploying ground crews to control vegetation manually within the larger buffer.
Enforcement director Henry Jennings noted that of the products principally used on railroad rights of way – Roundup, Arsenal, Diuron and Oust – Diuron “stands out like a red flag as a potential to leach.” Moosman agreed that Diuron’s half life is more than a year, and that its concentration in soil may go up over time, increasing the potential to move horizontally. The DOT has stopped using Diuron, but since most of its tracks are no longer in use, it maintains a much narrower right of way than the operating railroads. The railroad companies, Moosmann reported, don’t want to give up any of their arsenal of “tools” to control vegetation. According to information in 2002 pesticide commercial applicator reports obtained from the BPC subsequent to the meeting, Diuron also stands out as the single most applied product on railroad rights of way. A total of 9970 pounds of Diuron formulation was applied in 2002, along with another 5050 pounds of Krovar, a combination of Diuron and another pesticide.
The railroads are required to submit a final monitoring plan no later than February 2004 in order to have action on their variance application for 2004.
– Sharon Tisher