Comments of The Maine Organic Farmers and Gardeners Association Public Hearing on Spray Ban Ordinance
Presented June 11, 2003
My name is Sharon Tisher, and I am pleased to represent The Maine Organic Farmers and Gardeners Association at this meeting, at the invitation of Donna Kausen. MOFGA, which has long been active in seeking to reduce pesticide use in Maine and to address the problem of pesticide spray drift, strongly endorses the Addison spray ban ordinance, and disagrees with the position of the Maine Commissioner of Agriculture with respect to the ordinance. I am also a concerned neighbor, having a camp across the river in Harrington for sixteen years. I will pay particular attention to the legal issues raised by the Commissioner's letter of April 10, 2003, as I am a retired trial attorney, with fifteen years in practice in Connecticut, a member of the Maine bar, and have for the previous nine years taught environmental law in the Ecology and Environmental Sciences Program at the University of Maine. I also have some relevant factual insights to share, from my observation over the years at meetings of the Board of Pesticides Control, reporting for the Maine Organic Farmer & Gardener.
In a nutshell, MOFGA believes that the Addison ordinance is a wise and thoughtful step to protect its citizens, while allowing farmers who feel they must to continue to apply pesticides in a manner much less likely to affect their neighbors by drift. And we feel that the Commissioner has jumped the gun and is incorrect in contending that enforcement of the ordinance would in any respect contravene the "Right to Farm" law, 17 M.R.S.A. sec. 2805.
A couple of years ago, I was at a meeting of the Board of Pesticides Control when Jon Olson, Secretary of the Maine Farm Bureau Association, announced that the Bureau was initiating an effort to develop best management practices for aerial spraying. When asked why they were doing this, he replied that it was necessary "for the Right to Farm law." There was never, however, a further report of progress in this regard. There ARE no best management practices for aerial spraying, nor other best management practices for blueberry cultivation that require or recommend aerial spraying, and the Commissioner has pointed to none. Why not? The answer, at least to a trial lawyer, is obvious. Best management practices set standards and standards, when they are violated, create liability. Best management practices for aerial spraying were a hot potato that the Farm Bureau dropped. Now, however, the Bureau and the Department miraculously contend that there do in fact exist best management practices for aerial spraying, though they can point to no specific document that contains them. To them Addison should reply "you can't have it both ways."
I have read your Town Attorney Charles Gilbert's excellent letter of May 21, 2003, and essentially agree with it. I think it is interesting that the Agriculture Department has produced no responsive opinion of the Maine Attorney General endorsing their effort to invalidate the Addison ordinance. I would like to address, and amplify upon, two of Mr. Gilbert's points.
Does Right to Farm include aerial spraying?
As Mr. Gilbert notes, there is an initial, fundamental legal question about whether the Right to Farm statute was intended to cover aerial spraying in the first place. The statute defines the kind of farm operations protected by its provisions to include "ground and aerial seeding," but only "ground spraying." There is no mention of aerial spraying of pesticides under the otherwise extensive enumeration of things farmers do to be encompassed by the legislation. Carving out aerial spraying to give property owners and municipalities more leeway to object to it would certainly be well grounded in fact. Aerial spraying is clearly more prone to cause problems for neighboring properties than ground application. The University of Maine Cooperative Extension Wild Blueberry Fact Sheet: Minimizing Off-Target Deposition of Pesticide Applications (www.umaine.edu/umext/wildblueberries/FactSheet/303.htm) notes that:
Drift is a side effect of pesticide use associated with ground and aerial application and is an important environmental concern…..Drift can cause potential injury to non-target plants and animals, and has the potential for producing illegal residues on non-target sites…Pesticide applications which are directed upwards or made by aircraft are likely to be subject to more drift. Pesticide application by aircraft or air blast sprayer can result in residue problems on sites that are distant from the actual application site. Pesticides released close to the ground or substrate are not as likely to be suspended in the air as those released from a greater height or distance from the target. (p. 1, emphasis added)
Mr. Gilbert was inclined to defer to the Commissioner, the official charged with administering this statute, on the issue of whether aerial spraying was intended to be encompassed under "Right to Farm." I am much less inclined to do so, particularly as, as Mr. Gilbert points out, the Commissioner appears to have misinterpreted the statute in other respects, particularly as to his duties under the Administrative Procedures Act. It is most relevant in this regard, moreover, to consider the previous, if tacit, interpretations of the Department. A Board of Pesticides Control document (attached) lists twenty municipalities that have enacted ordinances restricting pesticide use including five - Coplin Plantation, Lebanon, Limestone, New Sweden, and Rangeley, which prohibit aerial applications. New Sweden's ordinance has been in effect since March 27, 1990. The Lebanon ordinance has been in effect since March 10, 1980. The Limestone ordinance has been in effect since March 16, 1970. All of these communities are largely agricultural. To my knowledge, the Department has not previously contended that enforcement of any of these ordinances runs afoul of Right to Farm. To contend that the Addison ordinance cannot be enforced is hence a new interpretation and inconsistent with the Department's prior interpretations over a period of at least three decades.
I would accordingly say to the Farm Bureau and the Department, that if you wish to restrict communities' ability to regulate aerial spraying under Right to Farm, you had better go to the legislature to pass an amendment of 17 M.R.S.A. sec. 2805 to include aerial spraying in the definition of "farm operation." That would be an interesting, and highly controversial, legislative initiative.
Has the Commissioner properly determined that enforcement of the Addison ordinance would restrict or prohibit the use of best management practices?
As Mr. Gilbert has observed, the Commissioner has not proceeded, as required, under the Administrative Procedures Act, to establish best management practices with respect to aerial spraying in blueberry cultivation, and then to determine that enforcement of the Addison ordinance would restrict or prohibit such practices. The Farm Bureau, as noted above, recognized that it ought to establish best management practices, but failed to. When MOFGA inquired of the Board of Pesticides Control director Bob Batteese regarding the existence of best management practices for blueberries, we were advised: "I am not aware of and do not have copies of any best management practices for blueberries other than for the use of hexazinone which appears on the UMCE Blueberry website." (May 20, 2003 e-mail). The "Hexazinone Best Management System for Wild Blueberry Fields" (www.wildblueberries.maine.edu/FactSheets/250.htm) nowhere requires or recommends aerial spraying; to the contrary, it notes, "When using the liquid [hexazinone], use ground application over air application, since this will result in more accurate and even placement." (p. 5).
When we inquired of U. Maine Blueberry Specialist Dave Yarborough as to the whereabouts of the "best management practices" referred to by the Commissioner, he also referred us to the "Hexazinone Best Management System" document, but added that "Please note that although there are not explicit sheets indicating other practices are best management practices, the use of scouting fact sheet http://www.wildblueberries.maine.edu/FactSheets/204.htm and the supporting fact sheet in the guide http://www.wildblueberries.maine.edu/TableofContents.htm are the best management practices for wild blueberry production." (May 28, 2003 e-mail). It is highly doubtful that "fact sheets" not developed, approved by the Commissioner, or formally identified as "best management practices" would qualify under the Right to Farm statute. Even if they did, moreover, nothing in the cited documents appeared to require or even recommend aerial pesticide spraying. And the Drift Fact Sheet cited above clearly acknowledges the greater problems presented by aerial spraying.
To the Commissioner we would accordingly say that if and when you amend the Right to Farm statute to cover aerial spraying, your next step, if you wish to restrict communities' ability to regulate aerial spraying under Right to Farm, would be to develop best management practices which clearly delineate when aerial spraying is recommended over other methods of pesticide application, taking into account not only efficacy in pest management but also drift, and associated environmental and human health concerns. You had better proceed, moreover, in an appropriate rule-making process under the Administrative Procedures Act. We recommend a consensus rulemaking process similar to the one successfully used last year by the Board of Pesticides Control to develop a regulation for pesticide use in schools. And we recommend that the rule-making committee include a representative of the Department of Health, the Department of Environmental Protection, the Board of Pesticides Control, the Board's Medical Advisory Committee, the Natural Resources Council of Maine, MOFGA, and the Maine Toxics Action Coalition, as well as members of the public in communities affected by aerial spraying.
Sharon S. Tisher, J.D. Instructor, Department of Resource Economics and Policy, University of Maine Chair, Public Policy Committee, Maine Organic Farmers and Gardeners Association