The MOF&G Online
Board Addresses Indoor Pesticide Applications
The Maine Board of Pesticides Control (BPC) began its Feb. 18 meeting with a workshop to review comments submitted by the public regarding proposed standards for interior pesticide applications. Representatives of many industries - including correctional facilities, nursing homes and restaurants -- had objected to the BPC's proposed requirement for 24-hour notification to employees or building residents before application of pesticides, claiming that this would be expensive and inconvenient. The board resolved to rewrite the rule to require a one-time notice to employees when they are hired; this notice would include an offer to provide future notification prior to specific spraying events if the employee so desired. Hospital patients and nursing home residents would receive a similar notice upon admission. Inmates of correctional facilities would receive notice upon admission but would not have the option of receiving future notice, because the Maine Department of Corrections was concerned that "prisoner grievances would increase significantly."
The Board further resolved to develop a universal symbol for posting at doors of public buildings to alert the public (who are not protected by the notification requirements) that pesticides are used in the building; a phone number on the sign would enable concerned persons to inquire about specific spraying events.
Finally, pesticides that have no reentry period stated on the label will have a reentry period defined as "adequate time for product to dry and carriers to dissipate."
The board received 13 letters offering opinions on and suggestions for the proposed rule as well as 37 identical postcards supporting the rule as written. In one letter Richard Grotton, president of the Maine Restaurant Association, stated that following labels and guidelines written by manufacturers and the EPA should sufficiently guarantee safety. This sparked a discussion of automatic pesticide misters, which emit bursts of pesticide spray at timed intervals and are sometimes used in food handling facilities with manufacturer and EPA approval. "That doesn't sound very IPM-ish to me," said staff member Lebelle Hicks. The board agreed that such machines should be uniformly banned.
Andrew Hackman, writing for the Chemical Specialty Products Association, requested that the exemption from notification rules when spraying for biting or stinging insects (an exemption that covers such activities as using insect repellents and wasp killers) be extended to "other pests of public health significance." The EPA maintains a list of such pests; this could form a basis for rulemaking, and state entomologist Kathleen Murray confirmed that organisms such as rats and cockroaches carry a documented health risk. However, board chair Carol Eckert, M.D., said that she would distinguish between biting insects, which can actually inject pathogens, and organisms that are merely sanitation issues. Chief of compliance Henry Jennings pointed out that pesticide treatments for rodent infestations are rarely as urgent as treating live hornet nests, and that while fumigating for rats requires a license, using insect repellent does not.
Alison Johnson, an author and activist, urged the board to protect individuals suffering from Multiple Chemical Sensitivity. While the board maintained that the purpose of the rule was to protect long-term occupants, Eckert suggested that the rule could require building managers to supply information on pesticide use to anyone who inquires. Staff member Heather Jackson expressed concern about liability in the case of accidental or purposeful misinformation, but Eckert likened the pesticide issue to the issue of allergens in restaurant food.
Sarah Rockwell, a tenant and student in Portland, wrote to urge the board to require notification be provided in the native language of the employee or building resident, and to provide verbal as well as written notification due to the relatively high rates of functional illiteracy in many parts of Maine. The board felt that providing notice in all native languages might not be practicable - Eckert stated that around 50 languages are spoken in Portland - but that a universal symbol, if well advertised, could be understood by foreigners and functionally illiterate persons. Board member Lee Humphreys suggested that foreign language agencies in Portland or foreign language departments at Maine colleges might help disseminate information to many ethnic groups, and stated that such an endeavor would be worthy of board effort even if it could not be included in the legal language of the rule.
The board began its regular meeting by approving Section 18 emergency registration renewal requests for coumaphos and thymol to control Varroa mites and small hive beetles in managed bee colonies. Varroa mites have exhibited resistance to currently approved control measures, such as fluvalinate. State apiarist Anthony Jadczak told the board of the importance of the beekeeping industry to agriculture due to the pollination services it provides and warned that the industry was endangered in part due to pest problems. He stated that because registered products do not effectively control mites, many beekeepers are using "biological"-like coumaphos and thymol "under the table." These treatments are more hazardous to the applicator than their synthetic counterparts, because they are strong corrosives, but they leave fewer environmentally harmful residues. Neither coumaphos nor thymol is permitted for organic honey production.
Responses to Requests
The board granted the request of Ashley Brewer of Northeast Applicators LLC to cease to require sampling potatoes from storage lots treated with chlopropham, a sprout inhibitor. Brewer agreed in 2003 to perform residue testing after the board approved a Special Local Needs registration for the product. The highest residue level that appeared was 21.8 ppm on unwashed, unpeeled potatoes, significantly lower than the 30 ppm tolerance set by the EPA for washed and peeled potatoes. Brewer stated that he intended to continue testing some samples for his own information and would share results with the board, but he did not want the sampling to be mandated.
The board passed Wyman and Sons' blueberry pest management plan for the Deblois Critical Pesticide Control Area (CPCA), which contains a state-owned fish hatchery. The plan restricts the kinds and frequencies of pesticide applications within 500 feet of the spring or 250 feet of the stream. Permitted pesticides include Bt products for controlling spanworm, Mycotrol ES for flea beetles, and Malathion for fruit flies. The plan also includes methods for minimizing drift, such as restricting boom length on plane sprayers and planting trees between blueberry fields and the water.
RWC, Inc. received its annual variance for its railroad vegetation management program. RWC and other vegetation management companies that work on railways are routinely exempted from the requirement to record all sensitive areas within 500 feet of the spray pattern. Instead the companies keep a 10-foot buffer from open water and employ a spotter to run ahead of the spray rig and alert the operators when sensitive areas, such as water bodies or residences, occur. RWC also uses only glyphosate within one-half mile of Sebago and Phillips Lakes, restricting use of the more toxic Karmex to rail yards.
The staff submitted an amendment to Chapter 31 clarifying that commercial applicator licenses depend on company affiliation, a detail that had evaded several applicators. If an employee obtains an applicator license under one company, then moves to another company, he or she retains certification but must acquire a new license. Independent contractors are licensed as sole proprietors and retain licenses when they shift contracts among companies.
The board approved two consent agreements negotiated with persons who admitted to infracting upon pesticide rules. Carl R. Smith III, a potato grower in Newport, was fined $200 for failing to comply with EPA's Worker Protection Standard for three years in a row. The Worker Protection Standard, which was passed in 1992 and became enforceable in 1994, provides that employees handling potentially dangerous substances such as pesticides be properly trained in their use at least once every five years. Smith was first advised of his noncompliance with this law in 2002, and two subsequent annual inspections showed no improvement. Board member Seth Bradstreet, also a potato grower, said that he had heard many complaints of unequal treatment of growers by various inspectors; the manner in which inspections are conducted varies widely across the country and enforcement tends to be spotty.
Dana Wright, a Littleton potato grower, was fined $300 for seven instances of providing fraudulent records to the board. He and his brother Dennis were required to attend continuing education programs in order to extend their private pesticide application licenses beyond the initial three-year period. Because Dennis Wright was unwilling or unable to attend these programs, Dana attended alone and signed and submitted seven Recertification Attendance and Credit Forms in his brother's name. A clerk in the BPC office noticed the identical handwriting. Eckert recommended changing the rules for the education programs to require an observed sign-in at the beginning and a certificate collection at the end to prevent such infractions.
BPC Considers Protections for Chemically Sensitive
The BPC proposed removing protections in its regulations for individuals and families with health conditions that make them particularly sensitive to pesticide applications. Chapter 60 of board regulations currently enables persons to petition the board for designation of a Critical Pesticide Control Area (CPCA) when they can provide medical and/or epidemiological evidence that exposure to pesticides causes serious and/or longstanding health effects, or when pesticide applications may threaten groundwater, endangered species, significant wildlife habitat or natural resources. In such CPCAs, the board can impose special restrictions on the type or manner of pesticide application, prohibit pesticide applications altogether, or provide special notification provisions before pesticide applications.
In more than 20 years since this provision was enacted, only two such applications to protect sensitive individuals have come before the board. One, on behalf of a chemically sensitive child in Hope, Maine, was granted after a hearing in 2000. It was subsequently withdrawn when the affected family moved. The second was referred to consensus rulemaking procedures and subsequently withdrawn by the Gorham applicant. The board proposed amending Chapter 60 to make CPCAs available only to "groups of sensitive individuals in hospitals, nursing homes, residential care facilities or other complexes," not to single individuals or families. Robert Batteese, Executive Director of the Board, described reasons for rolling back protections: "(1) it has been a very disruptive and expensive process to thrust upon a neighborhood, (2) individuals have not been able to produce the level of verified medical and/or epidemiological documentation of their condition that was originally anticipated, and (3) ....the Health Insurance Portability and Accountability Act (HIPAA) makes it next to impossible to discuss an individual's medical condition in public meetings." (Jan. 20, 2005, e-mail)
On March 18, 2005, the board held a public hearing on the proposed change. Leslie Poole of Jefferson, grandmother of Codey Brown, the applicant in the Hope CPCA, argued that reducing protections for chemically sensitive individuals contradicted the board's statutory mandate to minimize reliance on pesticides. Without such protections, the only resort was to the courts, which were "much more expensive" for both applicants and their neighbors.
Jonesboro activist Nancy Oden contended that the rule change was "amoral and backwards...No one should be exposed to pesticides. Not ever." The rule protects "endangered species," and Oden argued that "humans are endangered species" who should be protected against pesticides.
Another opponent, Brunswick resident Alison Johnson, has written two books related to multiple chemical sensitivity, Casualties of Progress and Gulf War Syndrome: Legacy of Perfect War. She has produced several videos about MCS and established a Chemical Sensitivity Foundation. Johnson argued that MCS is a growing problem and part of the panoply of symptoms of many sick veterans of the Gulf War. "I have yet to find a sick Gulf War veteran who does not have MCS," Johnson noted. Whereas Gulf War Syndrome was previously thought to be related to stress, it is now understood to involve "neurological damage due to toxic chemicals." Johnson also noted that the U.S. Department of Housing and Urban Development now recognizes MCS as a disability that should be accommodated by landlords. A chemical exposure may make a person with MCS "go downhill for days and weeks," and as the problem grows, Johnson argued, "the rest of the world has to begin to make life half way bearable for them."
Harborside resident Jody Spear argued that providing appropriate precautionary protections should improve relationships in a neighborhood. The state should afford the same rights to humans as they afford to endangered species. Spear believes that the "most egregious" part of the proposed rule was that it required MCS victims to be sentenced to end stage confinement" in an institution before they could receive CPCA protection.
Jane McCloskey of Deer Isle testified that she was one of the fortunate ones who had largely recovered from MCS, and that she had testified on behalf of Codey Brown and maintained a pen pal relationship with her. McCloskey described MCS as a "devastating illness, some say worse than cancer." She described people with chemical sensitivities as "speed bumps" in pesticide use: "…don't just jump to pesticide use as the only alternative...slow down for me."
Sharon Tisher, who had been the pro bono attorney for the Brown family in its application for a CPCA in 2000, argued on behalf of MOFGA that it is "very ironic" that the proposed rule deprives individuals and families of the same rights afforded to fish in fish hatcheries; and, in a day when the benefits of living at home as opposed to institutionalization are well recognized, both for individual quality of life and costs to the public, that the rule would compel MCS victims to enter an institution before having any chance at protection. Such institutionalization was likely to be a "Catch 22" as chemically sensitive people would probably have more chemical exposure in an institutional setting.
Tisher argued that the rule was not "useless" or "irrelevant" just because it had been invoked only twice in 20 years. The potential for such protections undoubtedly provides sufficient leverage in many instances for sensitive individuals to make arrangements with their neighbors, precluding any need for a formal petition. Similarly, when the Brown petition in Hope was pending, the Brown family worked out an agreement with neighboring farmers to have no organophosphates sprayed for one summer -- an agreement that may have significantly impacted Codey's health in the long term. In that petition, ample medical evidence supported the application, including supporting letters from three Maine treating physicians that Codey's continued health would be seriously impaired by further pesticide exposure.
The more recent, unsuccessful application in Gorham may have inspired this rule change, but was a case of "bad cases making bad law," Tisher argued. The applicant in that case was unwilling to have her medical history disclosed or discussed in a public setting. Tisher noted that, as in a civil lawsuit, when applicants put their medical condition in issue, they must anticipate a loss of privacy. The new federal privacy rules don't change that. The rule might be amended to specify that upon request of the board or an affected individual, applicants would have to sign a medical authorization providing for review of their relevant medical histories.
Darren Hammond of Harrington, a farm manager for Wyman blueberries who had attended the hearing on the Brown CPCA application, spoke in favor of the proposed rule, arguing that existing notification rules were adequate protection for chemically sensitive individuals. He suggested that people with MCS may be guilty of "doctor shopping" to get their medical opinions and noted that "the world is full of chemicals today, and any pesticides we use in blueberries is minimal compared to everyone's chemical exposures 365 days of the year."
In a conversation following the hearing, BPC Director of Enforcement Henry Jennings said that he supported a rule change, because in his experience of working with applicants and their neighbors, the process "exacerbated the polarity of the conflict and made both parties very angry with the other." The process of finding a middle ground was a good idea, "but trying to do this through rulemaking was not."
April 15 Meeting
At its April 15 meeting, the BPC resolved to revise, but not revoke, the Chapter 60 rule allowing chemically sensitive individuals to seek CPCA protection. In addition to the overwhelmingly negative reaction to proposed amendments that the board had received at its public hearing, the staff reviewed 53 written submissions, of which 31 supported the amendments and 22 opposed changing the existing rule. Board members who had previously supported revoking the individual's right to CPCA protection now strongly favored retaining that right and reworking the rule to ensure a smoother process. Board member Lee Humphreys found herself "suddenly back-pedaling" during the testimony, as she realized that the BPC is a "last resort for people who need protection in a world where chemicals are everywhere." Board member John Jemison called Tisher's testimony "very compelling" and pointed out that because individual CPCA protection issues rarely arise, "we would be heading in the wrong direction if we took protection away from people who need it."
However, board member Seth Bradstreet stated that better enforcement of other existing rules (such as buffers and wind speed restrictions) would eliminate at least some need for the chapter 60 rule. He expressed concern that agricultural land and the right of landowners to use their land agriculturally is being restricted by urban sprawl. Andrew Berry, owner of Maine Helicopter Inc., opposed imposing further regulations on those who earn their living as spray contractors, but added that as an asthmatic he sympathized with those seeking to distance themselves from chemicals. Eckert and staff member Lebelle Hicks believed that higher standards are needed for the medical testimony, in order to prevent establishing a CPCA on false premises. Both recommended involving the Medical Advisory Committee, either to formulate appropriate standards or possibly to review medical testimony for toxicological accuracy. Eckert also recommended that independent mediation be required before a CPCA is established. According to Mark Randlett, assistant attorney general, the state maintains a list of certified mediators, some of whom specialize in environmental issues. The parties concerned are generally responsible for the cost of the mediation. The Board resolved to seek the advice of the Medical Advisory Committee and to further discuss the role of mediation in the process.
The board amended Chapter 27, which regulates the Integrated Pest Management standards for K-12 schools, to require notice to all parents only when school is in session. At other times, only parents of students who will be in the building around the time of the application (such as members of sports teams) would be notified. Notices of the application must always be posted to entrances near the sprayed area. Chapter 31 was amended to exempt pool and spa operators who are certified by certain approved organizations, as well as pet groomers, from applicator licensing requirements.
Pesticide Applications on Blueberry Lands
David Yarborough, University of Maine Cooperative Extension blueberry specialist, reviewed Extension's latest water quality monitoring results. Extension has sampled wells annually in and around blueberry fields since 1989 for hexazinone, an herbicide that leaches into groundwater and contaminates drinking water supplies. Recent tests have also monitored for the herbicide terbacil and the fungicides propiconazole and febunconazole. Neither fungicide was registered for use last year and neither was present in ground or surface water at detectable levels. Hexazinone ranged from nondetectable to 9.5 ppb, the latter at a site that, in 2003, suffered a point source spill. The town water supply in Machias contained just over 1 ppb hexazinone. The EPA Health Advisory Limit for hexazinone in drinking water is 400 ppb. Terbacil was not detected at levels above 1 ppb at any test sites; the Health Advisory Limit for terbacil is 90 ppb. Because no monitoring in the past 12 years has shown pesticide levels approaching the Health Advisory Limits, the BPC agreed to allow the university to test only once every four years, alternating with monitoring conducted by BPC staff every four years, so that testing will occur biennially.
The board reviewed the staff's "2004 Drift Study of Aerially Applied Blueberry Pesticides," which was conducted near salmon habitats on the Narraguagus and Pleasant Rivers in Washington County. Low levels of the fungicide fenbuconazole or the insecticide phosmet were detected on drift cards or in water samples at five of nine sampling sites. When sampling downwind of application areas, 22 samples tested positive and 18 negative; however, staff believed that some of the nondetects were sampled too long after the application to be accurate. Since Cherryfield Foods and Wyman & Sons, the state's two largest blueberry growers, will cease aerial pesticide spraying, Eckert recommended continued testing to see if boom spraying significantly reduces drift.
However, two representatives of Wyman & Sons, Nat Lindquist and Darin Hammond, vehemently opposed the BPC's testing program. Wyman & Sons believes itself to be targeted by environmental groups because it has been weakened by the threat of a lawsuit from the National Environmental Law Center, which was the impetus for the switch to boom spraying. The company fears further legal threats based on all pesticide spraying if monitoring continues. The representatives informed the board that the company's land will henceforth be posted to prevent anyone but BPC staff from conducting investigations. BPC staff must call company offices first and may not be granted permission to test if the company deems the "political situation" unfavorable. The representatives objected to the BPC staff's use of university students and volunteers from two watershed councils to assist in the testing, claiming that at least one of these individuals had an "environmental agenda" and that some drift samples might have been contaminated by insufficiently trained volunteers.
They also objected that environmental groups obtained data from the study before Wyman & Sons and asked that data not be released until studies are officially published. Randlett said that even early drafts of such documents are subject to Freedom of Access laws, so the staff had to release them upon request. Staff member Heather Jackson said she had called the offices of Wyman & Sons and Cherryfield Foods to inform them of the general results upon the conclusion of the study.
The board approved a consent agreement with Mainely Grass Inc. of York. The company was fined $1500 with $500 suspended for applying lawn pesticides at the wrong address. The company was previously fined for a similar, 2003 offense.
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