Support Restrictions on Aquatic Pesticide Sales
1/1/04: We are happy to report that at the Board of Pesticide Control's December 19, 2003 meeting, the Board voted unanimously to reject the industry petition for repeal of the aquatic pesticides rule, and to proceed with enacting the staff's recommendation for technical changes to the regulation. Final action is expected at the Board's January 23 meeting.A pesticides industry group, "Responsible Industry for a Sound Environment" (RISE) has petitioned the Board of Pesticides Control to repeal a new regulation adopted last May, which restricts the use of aquatic pesticides in Maine's ponds and lakes to individuals having a private or commercial applicator's license. RISE contends that the rule unreasonably restricts the use of pesticides such as 2,4-D, which have primarily terrestrial uses. Background on RISE's petition and the rationale for the BPC rule is provided in the excerpt below from a forthcoming MOF&G article. The full text of the RISE proposed rule, which would repeal Section 4 of Chapter 41 of the BPC regs, is available at www.thinkfirstspraylast.org (scroll down to rulemaking).
For information on the toxicity of 2,4-D, see www.pesticide.org/factsheets.html, www.pesticideinfo.org/Detail_Chemical.jsp?Rec_Id=PC33440 and, specifically for ecological effects on fish and other aquatic organisms, see www.pesticide.org/24Decological.pdf. See also, ace.orst.edu/info/extoxnet/pips/24-D.htm. The Maine Dept. of Environmental Protection has also posted information about aquatic herbicides: www.maine.gov/dep/blwq/topic/invasives/invherbicide.htm.
Oppose the RISE petition by submitting written comments by 4:00 p.m. December 5, 2003, to Robert Batteese, Jr., Board of Pesticides Control, 28 State House Station, Augusta, ME 04333-0028, or by e-mail to robert.batteese@state.me.us.
In May, 2003, in response to a request from the Department of Environmental Protection (DEP) and the urging of environmentalists, the Board of Pesticides Control (BPC) adopted a rule restricting the use of aquatic pesticides to individuals having a private or commercial pesticide applicator's license. Although DEP regulations require a permit for any homeowner to treat a pond or lake with aquatic pesticides, many instances of sales off the internet to Maine homeowners without DEP permits had been discovered. The DEP reasoned that restricting these pesticides at the point of sale to licensed applicators was an important additional check on their use, to prevent harm to wildlife and drinking water sources from inappropriate use. The BPC ultimately agreed. The pesticides industry, however, has mounted an assault on the new rule; the outcome will likely be determined at a November 21, 2003 public hearing, and subsequent Board deliberations.
On July 1, 2003, the industry group Responsible Industry for a Sound Environment (RISE) wrote a letter requesting that the Board rescind the new rule. RISE stated that it represents over 170 pesticide producers and suppliers who provide over 90 percent of the domestically produced aquatic pesticides utilized in the U.S. The organization objected to "the Board's action making all aquatic herbicides restricted use without consideration of the aquatic herbicides' toxicity and potential to cause unreasonable adverse effects on the environment, as well as the onerous impact this action will likely have for non-aquatic uses of many of these products." RISE complained that the rule encompassed sewer root control products which would be flushed down drains but not applied directly to water bodies, as well as 2,4-D, which is primarily a terrestrial herbicide. Noting that the same arguments were submitted during the rulemaking process, the Board agreed at its July 18 meeting to take no action, except to exempt sewer root control products from the rule.
On September 26, 2003 the BPC received a "citizen" petition with signatures of 159 registered voters from the towns of Corinna, Newport, and Pittsfield, submitted by Robert J. Tardy, a lobbyist hired by RISE, and evidently gathered by Tardy's daughter, Jessica Tardy. The petition sought repeal of the aquatic pesticides rule. Under the Administrative Procedure Act, the Board is now required to hold a public hearing on the proposed rule change. At the same time, the Board will consider some fine tuning of the rule recommended by BPC staff: using a BPC list of aquatic pesticides registered in Maine, instead of the EPA list referenced in the current regulation, which has proved to be outdated. Interested persons can also submit written comments to the BPC until December 5, 2003.
Reports on Public Hearings
January 23, 2004 Hearing
At its January 23 meeting, the Board unanimously rejected the repeal of 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 their action noted that "the fifteen 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."November 21, 2003 Hearing
None of the 159 "concerned citizens" who had signed Robert 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 the federal statute regulating pesticides (FIFRA), pesticides should only receive special restrictions based 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 up 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 week-killer to a public water body, which include 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 the DEP regulations requiring a permit, Gregory noted. They are 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.
Scott Williams, a biologist and Executive Director of the Maine Volunteer Lake Water Monitoring Program agreed that aquatic pesticides "shouldn't be undertaken by a non-professional," and that the public is not aware of the delicate structure of the aquatic environment, and of how 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 herbicide applications. Every five years, the lakes must be drained, and the bottom 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 NPR about how it was illegal to apply 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. 2,4-D, for example, has an allowable maximum for public water supplies of only 70 parts per billion. And the list 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 PCB's 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 of 2,4-D, including its toxicity to fish, particularly salmon, and othe 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 there are two parties to a sale, 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. 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.
The BPC will consider the petition and any written submissions at its January meeting.