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 Maine BPC Report – Winter 2000-2001 Minimize


Access to Pesticides Records Debated
“Back to the Drawing Board” on Pesticide Sales Data
West Nile Virus
New Program Targets Homeowner Yard Care in Casco Bay Communities
Unlicensed Application at DOL Office Complex
Two New Public Members Join BPC


Access to Pesticides Records Debated

The saga of the Jefferson farmer who refused to give Board of Pesticides Control (BPC) inspectors access to his pesticide application records [see June/Aug. 2000 MOF&G] became the focus of the Board’s September 29, 2000, meeting in Augusta. Andrew W. Williamson, IV, of County Fair Farm, initially refused a request of his neighbor, Joyce Babb, to provide a list of the pesticides he used on his crops. Babb operates a mobile home park close to Williamson’s fields and is required under the Safe Drinking Water Act to test the park’s well water. The extent of the required tests depends on an analysis of likely contaminants from activities in the vicinity. Babb asked for the pesticide information to narrow the number of chemical contaminants she would have to test for, which would substantially reduce her costs. When Babb turned to the BPC for help in getting the information, it sent an inspector twice, who was also refused access to Williamson’s records. BPC regulations require that farmers maintain pesticide application records for two years, and that the records “shall be available for inspection at reasonable times.” An extensive discussion was sparked at the Board’s April 28, 2000, meeting concerning when a neighbor’s request should trigger such an inspection. The consensus of that discussion was that BPC staff could be responsive to neighbors’ needs for information, except in obvious cases of harassment.

Williamson appeared before the BPC on September 29 to defend his right to refuse the pesticide information. He argued that the inspector who came to his farm was “very derogatory and very demanding.” Williamson maintained that he “shouldn’t provide a list of what to go look for in the well.” He noted that he was “the only farmer around,” and suggested that providing such a list would make him a “sitting duck” for a lawsuit if contamination were found. The most Williamson offered initially was to provide a list of the crops he planted, “so with a little imagination they could determine what kinds of pests I had and pesticides I used.”

Williamson came armed with some strong supporters. Jon Olson of the Maine Farm Bureau stated that the Bureau “feels very strongly that pesticide application records need to be confidential – It’s not because farmers want to hide what they’re doing [but] they are very concerned that the information will be used against them.” Olson later clarified that farmers were concerned about “how these records could be misused by environmental activists and the media.” Olson argued that the Legislature’s recent provision for confidentiality of nutrient management plans under the Nutrient Management Act indicated an intent that pesticide records should be confidential, too. If the BPC was going to make pesticide inspections public, “they should go to public hearing before making that a policy.” Williamson’s state Senator Marge Kilkelly also appeared on his behalf. Kilkelly stated that “the Board’s being a conduit for potentially unlimited information being available to the public is a problem. To require Williamson to give up his information is “opening a Pandora’s box and could have some unintended consequences.” Kilkelly joined Olson in urging the BPC to “go through a formal rulemaking process regarding what you’re going to do when third parties request information.”

But representatives of the BPC responded that they were not, in fact, announcing a new rule. Mark Randlett, the Assistant Attorney General who is counsel to the Board, argued that this was not a change in the regulations. Chapter 50 of the regulations already provides that records shall be available for inspection. “Whether or not you obtain those records for a third part is a policy issue, not a rule.” Randlett noted that inspection records would probably be accessible under the Freedom of Information Act. Randlett also questioned whether Olson’s argument based on the Nutrient Management Act’s confidentiality provisions was appropriate. “I’m not sure this case fits into that application; pesticide applications may not be part of a nutrient management plan.” (At the BPC’s Nov. 4 meeting, Randlett presented a memo confirming that the confidentiality provisions of the Nutrient Management Act didn’t apply to pesticides). Henry Jennings, director of enforcement, rejoined that “for 15 years it’s been our policy to help third parties get pesticide information where there’s a reason to get it.” Newly elected Board Chairman Vaughan Holyoke attempted to reassure Williamson about the consequences of any disclosure. If Babb’s well water tests positive for pesticides that Williamson used, Holyoke noted, “it doesn’t say you’ve misused them. That happens from time to time.”

After noting that Jennings and a representative of the water testing lab had recently contacted him and described the reasons his pesticide information could save his neighbor considerable expense, Williamson ultimately avoided a showdown by agreeing to provide a list of the pesticides he used. The matter was tabled at the September 29 meeting pending that resolution. As of the Board’s Nov. 4 meeting, however, Jennings reported that Williamson had not given Babb the list, so the matter was put on the agenda for the December meeting.

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“Back to the Drawing Board” on Pesticide Sales Data

More than three years after the Legislature mandated that the BPC “implement a system of record keeping, reporting, data collection and analysis that provides information on the quantity of product and brand names of pesticides sold,” the Board seems no closer to achieving meaningful pesticides sales reporting. For two years the BPC issued a 50-page report listing various brand names sold, with no bottom line accounting of the quantity of pesticide active ingredients that would permit a comparison to compilations made in 1991 and 1995. The problem was, as BPC director of licensing Gary Fish noted at the September 29, 2000, Board meeting, it “is a full time job to get this right.” BPC staffers simply don’t have the time to cross-reference brand name by active ingredient and convert liquid products to pounds of active ingredient, something the EPA database evidently does not yet do. Recognizing the uselessness of the report, last year the Legislature formally suspended the reporting requirement for a period of two years, to allow the BPC to come up with a solution within its budgetary constraints.

The BPC simultaneously appointed a pesticides data advisory committee to consider how best to respond to the 1997 Act. The committee, chaired by Vaughan Holyoke, met on July 14, and decided to recommend a selective approach to data analysis: “Another approach might be to start looking at a few situations where there are only a few players and it might be feasible to compile information with existing staff.” (Staff notes of meeting) The committee recommended focusing data collection and reporting on three sectors of users: forestry, blueberries, and commercial and homeowner lawn care. The proposal was sent to the Board and to various other interested parties, and drew a strong protest from Dave Bell of the Maine Wild Blueberry Commission. Bell contended in a September 21, 2000, letter to Holyoke that the Legislature directed that sales data be compiled for “all sectors,” and criticized the “piecemeal approach” suggested by the committee. He expressed concern about “a high likelihood that some members of the public would draw erroneous conclusions on usage by the targeted group because of the lack of a statewide perspective.” He also suggested that selective reporting of pesticide use by blueberry growers in Maine would put them at a “competitive disadvantage in markets around the world,” although he noted that “to our knowledge” cultivated [highbush] blueberry growers use more pesticides than Maine growers.

Upon considering Bell’s comments, Holyoke essentially withdrew the proposal for selective reporting at the September 29 Board meeting. With only one food group reporting, Holyoke acknowledged, “someone might think this is the worst … We’ll go back to the drawing board and flounder a little,” Holyoke promised. Fish put the Board’s quandary a bit more bluntly: “Either the Legislature’s got to give us the money to do it right, or take a hike.”

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West Nile Virus

Staff toxicologist Lebelle Hicks updated the BPC on contingency planning for the West Nile Virus at the September 29 and November 4 meetings. So far, 100 dead birds that have been tested in Maine have tested negative for the virus. Nationally 14 people were sickened with the virus this year with only one death, with the focus of the human illnesses in Staten Island, Brooklyn and New Jersey. A wide range of mammals are affected; Raccoons, bats, and horses have all tested positive for the virus. A Connecticut news report that I provided to the BPC indicated that resmethrin, a synthetic pyrethroid, was sprayed liberally along shoreline towns in 1999, but officials have ordered almost no spraying in 2000, despite some positive findings in mosquito and bird species throughout the state. A Norwalk, Connecticut, official reported that “Out of every four calls we get [on West Nile], one is concerned that we are not doing enough spraying, the other three are saying ‘please don’t spray.’”

If the virus is detected in Maine, Hicks indicated that the West Nile Inter-agency work group, chaired by the Maine Bureau of Health, will be considering the use of adulticides and larvicides in state assisted mosquito abatement projects. The adulticides include malathion, naled (Dibrom), permethrin, resmethrin (Scourge), and phenothrin (Anvil); the larvicides include Bacillus thuringiensis, Bacillus sphaericus, methorpene, and temophos. The Centers for Disease Control will hold a national meeting to discuss mosquito control measures in affected states in January. In anticipation of that meeting, the BPC has two advisory committees evaluating the risks associated with spraying and recommending the least risky products. The Medical Advisory Committee, chaired by Carol Eckert, M.D., will look at human risk factors, and the Environmental Risk Assessment Committee (ERAC), chaired by new Board member Lee Humphreys (see below), will look at environmental risks. Four new nominees were added to the ERAC specifically to address the West Nile issue: Leonidas Tsomides, DEP; Norman Dube, Atlantic Salmon Commission; Carl Wilson, DMR; and Jim Dill, Cooperative Extension. I also recommended that a representative of Maine Audubon be invited to join the Committee. Both groups hope to complete their recommendations by the end of the year, and are considering a public forum in December for the public and interested organizations to give input into their recommendations before they are finalized.

At the Board’s November 4 meeting, Lee Humphreys reported on the first ERAC meeting. Humphreys noted that the representative of the Department of Health, which will be making the ultimate decision on whether or not to spray, expressed considerable uncertainty on several critical issues. DOH Deputy Commissioner Phil Haynes commented that the State “doesn’t yet know what constitutes an emergency [sufficient to justify spraying],” and that only a small percentage of humans infected with this virus actually get encephalitis. Haynes also questioned whether it was possible to gain control over the mosquito population through spraying. Very little is known about what species of mosquitoes are found in Maine and which species can carry the virus. The last study of the subject was done in the 1950s. One prevalent species, the salt marsh mosquito, does not carry the virus.

On the other hand, Humphreys noted that some communities are already gearing up for a mosquito control effort. The towns of Wells and Kennebunkport have made formal requests to the DOH to assist them in implementing a mosquito larvicide program.

A representative of a commercial applicator who spoke at the ERAC meeting commented that his boss told him that “the West Nile Virus will be good for business.”

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New Program Targets Homeowner Yard Care in Casco Bay Communities

The BPC unanimously approved a $24,949 grant to Friends of Casco Bay to initiate a program dubbed “Bayscaping: An Education Campaign to Encourage Low Input Landscaping.” The program will combine surface water monitoring, public service announcements, and a voluntary certification program to encourage homeowners to reduce their use of pesticides and chemical fertilizers on lawns and gardens, in order to enhance water quality in Casco Bay. Starting with baseline testing this fall, the program will test for the presence of lawn care pesticides, including dicamba, MCPP, 2,4-D, diazinon and chlorpyrifos, in stormwater runoff at three sites. It will run TV spots focusing on well-known Maine personalities, showcasing their “Bay-Friendly” yards, with native plants, buffer plantings, and less than 100% “perfect” lawns. Finally, Friends of Casco Bay will develop a “property evaluation process” that includes a list of best practices for low input yard care, and awards property owners who follow these practices with permanent plaques for yard display indicating a “Bay-friendly” yard. Ultimately, the program hopes to show a correlation between widespread adoption of “Bay-friendly” practices and a reduction in chemical residues in surface water monitoring.

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Unlicensed Application at DOL Office Complex

The BPC staff is taking increasing enforcement measures against unlicensed personnel applying pesticides in commercial and residential facilities. It’s legal to apply pesticides in your own home without a license, but most other applications require a license and training. A recent notable example occurred in July, 1999, when an employee of Capitol City Associates, a property management firm, made two pesticide applications at 323 State Street, Augusta, which is leased as office space by the State Department of Labor (DOL). The employee applied diazinon, an organophosphate that is a fetotoxin, immunotoxin, and suspected mutagen and neurotoxin, both inside and outside the DOL offices. An employee who suffers from lung cancer and was sensitive to the chemicals complained to the BPC, which found that no employee of Capitol City Associates was licensed to apply pesticides. Director of enforcement Henry Jennings noted that the firm was “pretty reluctant” to enter into a consent decree for this violation: “People in property management think they can spray in their own home, and they think we’re being picky [about requiring licenses for commercial applications]. When you’re spraying diazinon, I don’t think that’s being picky.” Board medical representative Dr. Carol Eckert expressed surprise that the DOL or any state agency would have a contractor who wasn’t licensed to apply pesticides. Jennings agreed that “if the state policy is to minimize reliance on pesticides we should start with the state.”

Capitol City Associates ultimately agreed to a $350 fine, and as part of the consent decree approved at the Board’s Nov. 4 meeting, agreed to “place a one-day advertisement, approved by the Board’s staff, in the Kennebec Journal, apprising landlords and building managers of the pesticide applicator licensing requirements, and to cooperate with the Board’s staff to make a direct mailing to area landlords and building managers apprising them of the licensing requirement.”

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Two New Public Members Join BPC

In record time, the commissioner of agriculture nominated and the governor approved two new public appointees to the BPC, both of whom received MOFGA’s support. Replacing Alan Lewis and Jo D. Saffeir, who retired from the Board this summer, will be Lee Humphreys of Warren and Clyde Walton of Kents Hill. Humphreys’ appointment is a landmark: the first time a MOFGA-certified farmer has served on the Board. Humphreys, co-owner of Meadowsweet Farm, sells MOFGA-certified mixed vegetables, herbs, flowers, raspberries and grapes. She has been very active in various environmental monitoring and education efforts, including serving as a water quality technician for Cooperative Extension and the State Planning Office, training volunteers in water quality sampling; and promoting conservation education in schools for the Knox-Lincoln Soil and Water Conservation District. She is also an adjunct faculty member of Bates College, in the department of music, where she teaches flute. She has a B.S. in Environmental Policy from Unity College, and degrees in Flute from University of Michigan and Manhattan School of Music.

Clyde Walton worked for state government for more than 40 years as a landscape architect, most recently as manager of landscape and environmental mitigation for the Department of Transportation (DOT). Walton served nine years on the National Academy of Sciences Transportation Research Board’s Landscape and Environmental Design Committee and is a past president of the National Roadside Vegetation Management Association. While managing the often controversial area of roadside spraying for the DOT, Walton was a strong voice for pesticide reduction and risk assessment. From 1979 to 1998, Walton achieved an overall reduction in herbicide use in Maine from 1-1/2 gallons to 1/5 of a gallon per mile.

He initiated the first health monitoring of DOT employees doing roadside spraying, requiring annual checkups (he found no pesticide-related problems). Working with the BPC’s Medical Advisory Committee, he accomplished the first risk assessment of the chemicals used on the roadside program in the mid-1980s, so that the chemicals used were selected not just for efficacy but also for presenting the lowest risk.

– Sharon Tisher

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