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  You are here:  ProgramsPublic Policy InitiativesMaine Board of Pesticides Control ReportsFall 2001   
 Maine BPC Report – Fall 2001 Minimize


Meetings in May, June, July 2001

Board of Pesticides Control Struggles with Data Collection Legislation
MTAC Petitions for School Pesticide Regulation
Board Seeks to Duck Initiative on Indoor Pesticide Use
Board Nervous About Casco Bay Project
Murray Urges Board to be Proactive on State Pesticide Use
Board of Health Outreach on West Nile Virus Criticized
Research Proceeding on Salmon and Pesticides
Illegal Aquatic Pesticide Use in Maine Lakes



Board of Pesticides Control Struggles with Data Collection Legislation

On June 7, Governor King signed into law Senator John Nutting’s L.D. 1540, “An Act to Ensure that the State Board of Pesticides Control has Sufficient Resources to Provide Accurate Information About the Use of Pesticides in the State.” The legislation, strongly supported by MOFGA, was designed to help Maine farmers by telling an “untold story,” in Nutting’s words, of significant progress in pesticide reduction in Maine. It was also designed to break through the impasse that the Board of Pesticides Control (BPC) had encountered in meeting the mandate of the 1997 Act to Minimize Reliance on Pesticides, which required annual reports on the quantities of pesticides sold in Maine. Since 1997, the board had produced two reports, which Executive Director Bob Batteese had conceded were essentially useless: 50 pages of data by brand name, not correlated or subtotaled by active ingredient, and with no bottom line quantifying pesticides sold in the state, either in aggregate or by agricultural sector or commodity.

Following the second report, the legislature last session had suspended the reporting requirement, to give the board time to determine how to meet it, and required the board to report on its findings by October 2001 – a report that was never made. The board consistently acknowledged that existing statutes and regulations gave it access to the basic sales reports necessary to correlate a report, but that reducing sales information by brand name to quantification by active ingredient was a logistic nightmare, requiring at least one additional full time staffer.

The last useful report produced by the board, for agriculture and forestry sectors only, had been prepared by staffer Tammy Gould in 1995; Gould has since left the agency. A subcommittee headed by Board Chair Vaughan Holyoke had delved into the issue and proposed to attempt limited sales reporting by a few sectors where data were readily available and not duplicative: blueberries and forestry. The Maine Blueberry Commission rose in protest, suggesting that quantifying data on pesticides used only by blueberry growers would single them out unfairly from other food commodities and be bad PR in their foreign markets. Holyoke had reacted to the protest by agreeing at the September 29, 2000, meeting to “go back to the drawing board and flounder a little.” No further report to the board was forthcoming from Holyoke’s committee before Nutting initiated his legislation.

MOFGA testified in support of the bill at a public hearing on March 29, 2001, appending to its testimony the series of reports in this paper on the lack of progress in pesticides data reporting since the 1997 Act. MOFGA focused on the issue of pesticides and children’s health, citing a new EPA assessment of the risk of pesticides exposure to children, and the Maine Department of Agriculture survey of pesticide use in Maine schools. A copy of MOFGA’s written testimony is available at www.mofga.org.

The Natural Resources Council of Maine also supported the legislation, citing the fact that industry reporting on the use of other toxic materials had made advances in Maine and nationally, and that Maine’s lack of information on pesticides data was clearly out of step. Bob Batteese, testifying for the Board of Pesticides Control, opposed the legislation, reiterating his position that it was infeasible.

The legislation as signed into law reinstitutes the requirement that the board “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,” and requires the board to “submit a report on pesticide activities during the previous calendar year to the …Legislature” before April 1, 2002. “The report must contain sales information on quantities of pesticides sold listed by the common name of the active ingredient.” The legislation allocates $30,000 from the board’s reserves to comply with the reporting requirement.

At its regular meeting on June 8, 2001, the day after the governor signed the bill into law, the board appeared bewildered at the prospect of complying with the legislation. Batteese reluctantly reported that the bill “has been signed; we were just hoping it would get lost in the process.” Some discussion focused on what exactly the legislation required; board member Carol Eckert observed that the bill did not explicitly call for a bottom line tabulation of quantities of each active ingredient sold. Board Chair Vaughan Holyoke conceded that little doubt existed of Nutting’s intent in this regard: “It [the report] better be what he wants or all hell will break loose.”

Board staff member Gary Fish observed that “this is so much bigger a task than anyone knows it is. Good luck to whoever does it.”

Staff member Henry Jennings noted that the $30,000 allocated would just “be enough to compile a list of the multipliers you need to convert to active ingredients [from gallons or pounds of products sold]. He noted that some pesticide products, such as fruit tree sprays, have four different active ingredients: “multiply that by 7,000 products.”

Batteese at one point appeared to question whether the bill was politically motivated, to address the threatened FEN referendum imposing a moratorium on herbicide use in industrial forests: “He [Nutting] wants to be able to show homeowners in Portland they’re using more pesticides than the forest industry on clearcuts.” Batteese indicated he didn’t feel the board’s own staff could handle this project. He proposed requesting bids for outside groups to undertake the project: “Better get a research group to bid on it and then let them take the heat when they can’t produce the data.” The board directed Batteese to work on a request for proposal.

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MTAC Petitions for School Pesticide Regulation

Nearly a year ago, in its November 2000 meeting, the BPC was presented with a gravely disturbing report, prepared by its own supervising agency, the Department of Agriculture. In “What’s ‘Bugging’ Our Schools? Pest Concerns and Pesticide Use in Maine Public Schools,” state entomologist and Ag Department IPM specialist Kathy Murray surveyed all of Maine public school districts on their pesticide use, accomplishing an impressive 88% response rate. The survey results (Dec.-Feb. 2000 MOF&G) reveal that most pesticide applications in Maine schools are made illegally, by school custodial staff who are not licensed and have no training in pesticide application, safety, or health concerns. Only 5% of schools provide written notice when pesticides are to be applied, and 82% of respondents have no integrated pest management plan in place. (For a positive example, see our feature story in this MOF&G, “Camden/Rockport Has Model School IPM Program.”)

The board listened attentively last November but took no action to address the problems the report revealed. Feeling that educational opportunities available for school administrators would not be enough to accomplish widespread commitment to a responsible approach to pesticide use, the Maine Toxics Action Coalition presented the board, at its July 27, 2001, meeting, with a formal request to initiate rulemaking. MOFGA, a member of MTAC, strongly supported the application, as did the Toxics Action Center of Maine.

Kathleen McGee, director of MTAC, explained that the proposed rule would require that schools have a formal IPM policy (State IPM Specialist Kathy Murray is putting the finishing touches on a proposed model policy); would prevent schools from applying certain pesticides classified as “known, likely, or probable” carcinogens in any school settings; and would require written parental notification at least five days before pesticide applications. McGee felt that all of these policies would go a long way toward protecting children and school staff from unnecessary and potentially harmful toxic exposures: “Frankly speaking, we have become quite lazy about addressing pest problems, and rather than prevention and using simple measures, we skip to the 'instant’ cure. These ‘cures,’ time and again, have proved to be toxic, especially to kids … If we notify [parents] about school picnics, we can notify them about pesticide use,” McGee urged. On behalf of MOFGA, I added that because the department’s own survey revealed widespread ignorance and violations of the laws about pesticide use in the schools, regulating this area should be a “number one” priority for the board.

The application garnered the attention of industry lobbyists. Deborah Vanderbeek, representing the “American Crop Protection Association,” a pesticides trade group, spoke at the BPC meeting in strong opposition to the proposed rule. She indicated that her group is working with environmental groups on a federal legislative proposal that has passed the Senate (Amendment No. 805 to S.1 – School Pest Management Legislation); that it supports that proposal, but believes that the MTAC proposal is “Draconian” and that MTAC “wants to prohibit use of all pesticides in schools and school grounds.”

The federal legislation, as passed in the Senate, would require development of school pest management plans and would require annual notification to parents of pesticide use, with a registry system where interested parents could register to receive 24-hour advance notice of pesticide applications. Unlike the MTAC proposal, it does not prohibit use of any specific classifications of pesticides in schools. The Washington Post reported on July 19 that the House GOP had vowed to kill the parental notification provisions of the House bill.

Will Everett of MTAC countered Vanderbeek in arguing that the MTAC proposal was “not Draconian.” Everett pointed out that the proposal was modeled after legislation that had been enacted and was being successfully implemented in Massachusetts, and that the proposal was even less stringent that in Massachusetts, where day care centers as well as schools are covered.

The staff of the BPC had suggested deferring action on the proposal to see what happened with the federal legislation. Spurred by supportive comments by board members Michael Dann and Dr. Carol Eckert, however, the board directed staff to work with MTAC and the Department of Education to develop recommendations on a state regulation addressing pesticide use in the schools.

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Board Seeks to Duck Initiative on Indoor Pesticide Use

In January 1999, the BPC organized a Pesticide Indoor Use Advisory Committee to propose steps the board might take to address the largely unregulated area of indoor pesticide use. Federally regulated label requirements prescribe which pesticides are appropriate for indoor use and how they should be applied, but state regulations regarding notification and posting cover only outdoor pesticide applications. Several serious enforcement actions had come before the board involving landlords applying unregistered pesticides in their apartment buildings without applicator’s licenses, and the board expressed concern about the fact that landlords could under current law apply pesticides in apartments without notification to their tenants.

The Advisory Committee included representatives of MOFGA and of the Multiple Chemical Sensitivity Information Exchange, as well as representatives of exterminators and other pesticide applicators, restaurant owners and landlords’ associations. The Committee met over the course of 1999, and at the end of the year reported to the board with a consensus recommendation that the board develop regulations requiring a logo be posted at a prominent place in public commercial buildings, as well as apartment buildings, advising that “Cleaning Agents, Disinfectants & Pesticides” were “Used to Assure Cleanliness & Sanitation.” The logo would provide a phone number for the facility manager and for the applicator, to enable members of the public or tenants with concerns about what was being applied and when it was applied to obtain information.

Following delivery of the recommendation, the logo proposal dropped onto the board’s capacious “to do” list, until it appeared, without notification to Committee members, on the “drop list” a year and a half later at the board’s June 8, 2001, meeting. In the interim, the staff had never been requested to draft regulations for the board’s consideration, nor had any substantive discussion of the proposal occurred at a board meeting.

Having represented MOFGA on the Committee, I objected to dropping the proposal and argued that members of the public who had participated over the course of 1999 on the Committee deserved a reasoned explanation from the board about why it was not pursuing the issue of indoor notification. Dr. Carol Eckert, the board member who had chaired the Committee, responded that the board had put off the rulemaking process pending the rulemaking on the Hope Critical Pesticide Control Area, then felt it “didn’t have the resources” to pursue it. Vaughan Holyoke, Board Chair, responded that he didn’t like the logo requirement because it seemed like a “scare tactic.”

Two staff members, however, spoke in favor of pursing the issue of indoor notification. Director of Enforcement Henry Jennings noted that the board has “a whole chapter on outdoor notification, but the reality is somebody can come in and spray your apartment and the law doesn’t allow you to access information on what was sprayed, to get Material Safety Data Sheets …. I find it ironic,” Jennings commented, “that we put all the emphasis on outdoor notification and we don’t have some rights on indoor applications, in a situation where you’re more likely to have exposure …”

Director of Certification and Training Gary Fish also reminded the board that it prepared draft rules for indoor notification seven years ago. “Every time we get to the point where we try to do something, we get a petition that misdirects the board somewhere else. It’s not that indoor applications are not a priority, but something happens where all priorities are off.”

In response to these comments the board agreed to take the item off the “drop” list and put it on the ballot to be circulated to board members to identify priorities for action.

Also absent from the board’s current “to do” list set for prioritization was the number one recommendation from the Policy Committee on Pesticide Minimization that reported to the board on April 6, 2001. [See June-August, 2001 MOF&G, page 8.] This recommendation, initially proposed by MOFGA, was to “identify grants/other funding to provide financial incentives to farmers for evaluating/demonstrating alternatives that reduce reliance on pesticides.” The “to do” list does reflect the additional recommendation to support development of a state funded IPM Council, as proposed by Kathy Murray and Peter Mosher of the Department of Agriculture. Such an IPM Council could undertake the development of the financial incentive program.

When the Board reconvened on July 27, regulations for indoor application of pesticides had been placed back on the “to do” list after member balloting. Dr. Carol Eckert was asked to reconvene a meeting of the Advisory Committee on Indoor Air Applications to finalize a proposal for regulations. Eckert indicated that the committee might, as a result of the MTAC petition, address school pesticide regulations at the same time.

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Board Nervous About Casco Bay Project

In September 2000, the BPC authorized a $24,000 grant to Friends of Casco Bay [FCB] to support an innovative water quality monitoring and outreach program focused on chemical lawn care at homes in the Casco Bay region and its impact on water quality. The “to do” list generated at the board’s April 27, 2001, planning session included a proposal to “support and expand BayScaper activities,” recognizing that this program addressed the board’s long-standing concern about unregulated pesticide use by homeowners.

However, at the board’s May 4, 2001, meeting, some board members expressed concerns about the public impact of the water quality monitoring program, in the event that it detected pesticide run-off into the bay. Consequently FCB was asked to send a representative to the board’s June 8 meeting to discuss its proposal for release of information on detections.

Executive Director of FCB, Joe Payne, appeared before the board to address its concerns and to explain the reasons for initiating water quality monitoring of run-off into the bay. He explained that national analyses estimate that 60% of pollution in bays like Casco come from stormwater runoff, but whenever the issue comes up related to land use in the communities surrounding the bay, people demand data specific to their neighborhoods. “Unless the [water quality] numbers are in the back yard of the person speaking, the numbers are not considered appropriate.”

He stated that they had data documenting pesticide residues in sediments in Casco Bay and in blue mussels, but much of that data related to older, now illegal, persistent pesticides. The sampling underway would help to identify whether the newer pesticides and land use problems were continuing to contribute to pesticide contamination in the bay. Accurately sampling stormwater runoff, however, was far from simple. “Stormwater sampling is art and science and mostly frustration.” The FCB has sampled three stations, each representing a small residential community with roads running down toward the bay, with samples taken from central stormwater collecting points under the road, every 15 minutes over a period of two hours, following rainstorms. No results have been reported yet, but Payne told the board that in view of the uncertainties of the process, FCB would only attempt to “qualify, not quantify, the results.” The FCB would report the presence or absence of specific pesticides in the runoff, then would turn to the BPC toxicologist, Dr. LeBelle Hicks, for help in addressing the toxicity of any detected pesticide. It would not claim to have reliable data on the concentration of the pesticide in the runoff.

Board member Lee Humphreys stated that the board had asked Payne to come in because “we’re concerned about how data will be handled and who will have access to the data. We’re concerned that it could get blown out of proportion.”

Dr. Carol Eckert elaborated: “The problem with hexazinone [blueberry herbicide detected widely in Downeast well(s] is as soon as you have any presence there are people who are going to consider this unacceptable. People will say why isn’t BPC going to take control of this, why isn’t the State … If you do get detects, we hope you will work with us in how to communicate it so that we don’t get a lot of outcry.” Vaughan Holyoke added, “When you’re putting too much interpretation on sampling, it gets damn dangerous.”

Payne replied, “I can’t say someone in the press isn’t going to pick this up as a hot issue … [but] we’re not Chicken Littles. We’re very conservative.” He pledged a willingness to work with the BPC in releasing FCB’s results. He also noted the big difference in public perception of drinking water versus stormwater runoff: “We’re talking about pesticides in sewage and stormwater here, which people expect to be bad, unlike drinking water. [Stormwater’s] going away from them, it’s not going towards them.”

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Murray Urges Board to be Proactive on State Pesticide Use

Department of Agriculture IPM specialist, entomologist Dr. Kathy Murray, spoke to the BPC at its June 8 meeting, urging it to use the Clean State Initiative to promote IPM at the state agency level. The Initiative was originally put forth at the urging of Governor King, and addressed in L.D. 886, introduced by Sen. Sharon Treat, which was passed by the House and the Senate in May 2001. It establishes a state government environmental compliance policy addressing pollution prevention, energy efficiency, environmentally friendly purchasing and recycling practices. Each state agency is directed to submit a biennial plan to the Clean State co-directors beginning June 1, 2002.

Murray has already urged state officials responsible for implementing the policy to include pesticide use, and development of an IPM plan, in the plan requirements. She included a number of proposed questions to be answered by each state agency, including whether children were regularly present at the agency facility, and if so, whether parents were notified 24 hours in advance of possible pesticide applications, and whether toxic materials were kept in a locked storage area. Working to improve state agencies’ policies on pesticide use remains on the BPC’s “to do” list.

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Board of Health Outreach on West Nile Virus Criticized

On May 31, 2001, the Maine Bureau of Health issued a two-page press release detailing its preparations for a possible West Nile Virus outbreak. The release was notable for the absence of any language endorsing pesticide spraying to address the problem, and for its observation that the risk of WNV transmission was “very small,” that “healthy children are at extremely low risk for illness,” and that a number of non-chemical means to avoid mosquito bites could be used to further reduce that risk. Bureau Director Dr. Dora Mills conceded that pesticide spraying was “an option of last resort,” and was interviewed on Maine Things Considered as stating that she would be on the telephone objecting were her hometown to initiate pesticide spraying to address West Nile Virus.

However, the official state position on WNV and pesticide use was preempted and upstaged by the earlier release, on May 15, 2001, of an extensive report prepared by the Maine Environmental Policy Institute (MEEPI) entitled “OVERKILL: Using pesticides to control West Nile Virus mosquitoes in Maine may do more harm than good.” (Available at www.meepi.org, or by writing to MEEPI, 126 2nd Street, POB 347, Hallowell, ME 04347). Kathleen McGee of the Maine Toxics Action Coalition sent a copy of the report to all 500 Maine municipalities. MTAC also sent a pamphlet about WNV to all physicians in Maine. The Toxics Action Center also co-released the report with MEEPI in Massachusetts and Connecticut.

Regarding the status report on WNV at the June 8, 2001, BPC meeting, BPC public relations director Paul Gregory expressed concern that the Bureau of Health had not been visible enough in communicating to municipalities its concerns about pesticide overuse. Gregory noted that “a community could start spraying tomorrow, as long as they had a licensed applicator and a registered product.” Gregory said that the state had “a lot of good stories to tell about how the state is prepared to deal with the problem, but it’s not my story to tell, it’s theirs, and they won’t do it.”

Board member Lee Humphreys, who chairs the BPC’s Environmental Risk Assessment Committee, noted that Bureau of Health attendance at the ERAC’s meetings on WNV had been “poor.” BPC toxicologist LeBelle Hicks had provided the Bureau of Health with draft fact sheets for municipalities and homeowners, but the bureau, according to Humphreys, had “dumped them.” Humphreys agreed that if the bureau was not out front on this issue, the environmental groups were “going to take control.” “They already have,” Gregory responded.

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Research Proceeding on Salmon and Pesticides

Chair of the ERAC Committee Lee Humphreys reported to the BPC on June 8 that the Committee had “jumped the gun” in previously reporting an intent to seek a “No Taking” letter from the feds related to the BPC’s detection of hexazinone and an organophosphate pesticide in a Maine Atlantic Salmon run river [see June-August 2001 MOF&G, page 8, and March-May 2001 MOF&G, page 10]. Such a letter would be an official determination that the pesticide applications by Maine blueberry growers that led to the pesticide detections did not threaten the health or habitat of the Atlantic Salmon, now declared officially endangered under the Federal Endangered Species Act. The Committee had concluded that much further water monitoring and research was necessary in order to make the case for such a determination.

The BPC staff will continue its water quality monitoring of the Downeast salmon run rivers this summer; Jasper Wyman & Sons is conducting its own monitoring; and the DEP is also sampling stormwater runoff from blueberry barrens for pesticide residues. University of Maine researcher Barry Mower is testing a dozen pesticides commonly used in the blueberry industry for estrogenic (hormone mimicking) effects, “something the feds are very interested it,” according to Humphreys. The BPC water quality specialist Julie Chizmas, who directed the original drift study that identified the organophosphate Phosmet in the Narraguagus River, noted that the blueberry industry had reacted positively to the study. Wyman plans to plant up to 40,000 tree seedlings at various locations along the Narraguagus river, including the area where Phosmet was detected in river samples, to develop a more effective buffer for run-off.

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Illegal Aquatic Pesticide Use in Maine Lakes

Tracy Walls, a vernal pools biologist who works as a volunteer coordinator for Maine Audubon, listened with interest to a Maine Public Radio story about two residents of Scarborough who had illegally applied the herbicide 2,4-D, a suspected carcinogen, to a 28-acre pond. The individuals had bought the pesticide, manufactured by Aquacide Company of White Bear Lake in Minnesota, over the Internet. Aquacide advertises in its “Do-It-Yourself Guide for Weed, Algae, & Pest Control” that customers can “improve your water quality, restore water oriented activities and increase the value of your property by controlling aquatic nuisance weeds this year.” It also claims that “our products are certified and approved for use by state agencies. Those are good reasons to buy with confidence.”

In fact, the Scarborough residents were violating the law in two ways. Aquacide Pellets is not a registered pesticide in Maine and hence is illegal to use, or to sell, anywhere in Maine; and applying any pesticides to a public body of water requires an aquatic discharge license from the DEP. The DEP and BPC staff are cooperating in an investigation of the incident and expect an enforcement action. Meanwhile Walls went to the hardware store the day after the story ran and happened to overhear a customer asking a clerk for “something she could use for the weeds in her pond.” The clerk recommended a pesticide product off the shelf, saying “this is ultra concentrated. It will really work for you.” Something is rotten in the State of Maine, thought Walls. Not content to sit on it, Walls put together a request to the BPC for formal rulemaking to address this problem and garnered the support of the Maine Volunteer Lakes Monitoring Association, the Lakes Environmental Association, MOFGA, and the Department of Environmental Protection.

The regulatory approach that was urged on the board at its July 27 meeting was to classify all aquatic formulations of pesticides as “restricted use,” meaning that they could be purchased only by licensed pesticide applicators. Phil Garwood of the DEP spoke to the board in strong support for addressing the availability of these chemicals. The BPC’s investigation of the Scarborough incident revealed that 17 property owners along that one Scarborough pond had requested the Aquacide catalogue. “If you multiply that by the number of towns in the state, the potential for abuse is enormous,” Garwood noted.

Widespread publicity about both the West Nile Virus and invasive aquatic species might aggravate the problem of illegal pesticide use on Maine ponds, as Walls suggested. The DEP’s capability to enforce its permit requirement is very limited, Garwood noted, hence, “If there’s a way the board can come up with to control the availability of the pesticide to those who might use it illegally, that’s much more effective than anything we can do. I encourage the board and staff to be very creative and aggressive, because I think you have a much better way to solve this than the DEP.” While enforcement against mail order and Internet suppliers would present the same challenges if the pesticides were classified as restricted use, penalties for selling restricted use products to unlicensed homeowners would be substantially harsher. The board asked the staff to investigate classifying aquatic pesticides as restricted use and come back with a proposal at its next meeting.

– Sharon Tisher

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