Testimony of Sharon S. Tisher

In Opposition to L.D. 1791
"An Act to Increase the Number of Members on the Board
Of Pesticides Control"

January 23, 2006

My name is Sharon Tisher. I teach environmental law and Honors courses at the University of Maine. For most of the last twelve years, I have attended and reported on the proceedings of the Board of Pesticides Control (BPC) for the Maine Organic Farmer and Gardener newspaper. I have also served as a representative on three stakeholder committees convened by the BPC to develop pesticides policy: the Policy Committee for the Act to Minimize Reliance on Pesticides, the Advisory Committee on Standards for Pesticides Application and Notification in Schools, and the Pesticide Indoor Use Advisory Committee.

I think it's a perfectly fine idea to balance out the BPC with the addition of a representative of a Maine structural pesticide applicator's association and a Maine business association. But if we do this there are a few other provisions of the Maine statutes that will need to be amended, in the interest of consistency. Perhaps these could be rolled into the numerous amendments of L.D. 1890.

First and foremost is the problem with the name of the Board. After adding these two new members, I propose renaming the Board the Maine Board of Pesticide Permissiveness. Then there's the problem of the aforementioned Act to Minimize Reliance on Pesticides. This, as some of you will remember, was enacted in 1997, in the face of very troubling information, from a benchmark National Academy of Sciences study, about the inadequacy of our national system of pesticide testing and regulation to protect the specially sensitive populations of children, and pregnant women and their unborn children. In the face of these concerns, as well as newly understood risks from pesticides to human and wildlife reproduction and hormonal systems, the legislature declared it state policy to reduce reliance on pesticides wherever practicable. The emerging science of Integrated Pest Management, or IPM, provided the essential tools to accomplish dramatic reductions in the quantities and frequency of pesticide application, while still effectively controlling pests and protecting yields. But we might as well scrap this concept and rename this legislation "An Act to Maximize Reliance on Pesticides."

Finally, I suggest substituting for the state motto "Dirigo" the Latin phrase "Nos cado secundum", which means "we fall behind."

In all seriousness, this bill appears to be a preemptive strike in response to the fact that the BPC has of late devoted considerable time to developing regulations for indoor pesticide applications, including requiring IPM in those applications. These regulations are not yet final. It appears to be putting the cart before the horse to meddle in the composition of the Board under an assumption that certain interests are not adequately represented on the Board, before the Board has even officially acted. I for one have every confidence that the final rule of the Board will more than adequately reflect the interests, and concerns, of the Maine business community and structural pest applicators. These parties have had very ample opportunity to express their concerns, in repeated returns to the drawing board and new public hearings.

If anything, the history of the efforts to develop a rule for indoor pesticide applications, which spans an extraordinary two decades of BPC history, suggests that regulated interests have too much, not too little, role in controlling the timing and content of Board action in this area. The Board has repeatedly considered, but failed to meaningful tackle, the problem of lack of notification procedures for indoor pesticide applications in rental premises, or commercial and public buildings, and for insuring the safety of tenants and members of the public. In the two years of rulemaking procedures that led to pesticide drift regulations in 1987, many witnesses expressed concerns that people were more than likely to be exposed to pesticides from unregulated indoor applications than from outdoor drift. According to a staff memo, "the Board members at the time agreed and promised to explore the indoor issues once they completed work on Chapter 22." Many other states have adopted regulations on indoor use, and in 1990, the staff presented the Board with a draft regulation setting standards for indoor application, but it was never enacted. In 1999, the Pesticide Indoor Use Advisory Committee was convened, on which I served. The Committee included only a minority of "environmental" members, and included representatives of the restaurant and the rental real estate industries, as well as a structural pest applicator. We developed a consensus recommendation for regulatory action which, again, was never followed up on.

Following is a summary of some of the enforcement actions that have come before the Board over the last few years which have prompted renewed concern about the need to act in this area:

• a landlord not licensed to apply pesticides applied an unregistered, illegal, highly toxic pesticide to the interior of a pregnant woman's apartment, without notice to her or permission. The instrument of application was none other than a "Supersoaker" water gun.
• a Bangor landlord applied an insect fogger to the apartment of a tenant, without a license and without allowing the tenants and their cat adequate time to vacate the premises and cover food and food preparation equipment as required by the label. Whereas the label for the pesticide required that no more than a single canister could be released in any one room, the applicator set off three canisters in the kitchen, while the apartment was still occupied. The tenant had to enter the kitchen to rescue her cat. Both the tenants and their cat became sick with vomiting, lightheadedness and difficulty breathing, and the tenants were treated at Eastern Maine Medical Center.
• an indoor application of fungicide in a potato storage facility in Monticello sent an employee in an adjacent office to the hospital, resulted in an allegedly chronic asthmatic condition and a civil lawsuit. The applicator had allegedly informed employees in the adjacent office that spraying would take place and that they "should not be alarmed if they saw smoke emanating" from the storage facility. The employees were not advised to evacuate prior to application.
• an investigation in response to an employee complaint revealed that a Machias hospital had both hired professional exterminators and used hospital maintenance staff to make at least 15 separate pesticide applications at the hospital, using nine different pesticides, to control springtails. No one from the hospital had the required commercial pesticide applicator license. Two of the pesticides applied indoors by the maintenance staff were not labeled for indoor use, and hence were illegal. Ten hospital employees filed written statements with the Board stating that they had experienced symptoms related to pesticide poisoning. After operating room staff became ill following an unlicensed application, physicians evaluated them in the hospital's Emergency Room.

Closer to home, two recent episodes have not yet come before the BPC for enforcement action, but involve the structural applicator hired by State Facilities Management for addressing pest control in state offices. A Department of Agriculture employee was disturbed to find an applicator completing an indoor pesticide application in the fitness facility while she and others were working out. And a number of DEP employees complained when the structural applicator applied pesticides in response to a complaint about the presence of spiders, which are beneficial insects that present no risk to human health. The latter incident resulted in a meeting of BPC and DEP representatives and the State IPM Specialist, in an effort to determine how better to regulate pesticide applications in state facilities and protect occupants from exposure.

The BPC's Director of Enforcment Henry Jennings summed up the need for regulatory action on indoor, structural pest application practices at the Board's June 8, 2001 meeting. 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 access to information on what was sprayed, to get the Material Safety Data Sheets…" "I find it ironic," Jennings concluded, "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 [human] exposure."

I hope you will agree with me that these examples are convincing evidence that the Board is not acting irresponsibly in working on new rules for indoor pesticide applications, and their decision to do this is hardly an occasion for legislation that dramatically shifts the balance of power on the Board in favor of applicators and regulated entities, and against members of the public who need protection from pesticide exposure and adequate notification. Most people who observe the proceedings of the BPC conclude that the weight of power under the current organization is strongly in favor of applicators. There is a slot for an agricultural applicator, for a forestry applicator, and for a "commercial applicator," who is currently a commercial ag applicator, but could very well be a structural applicator. There are only two "public representatives." One of those two currently is the past director of pesticide applications for the Department of Transportation, and accordingly arguably is also a representative of applicators. Even the University representative, in past appointments, has been on occasions decidedly more sympathetic to the concerns of the applicator community than to those of the public.

Even in the absence of a structural pest applicator on the Board, Dick Stevenson, of Modern Pest Control, over the years has attended nearly as many BPC meetings as I have and has had every opportunity to give input into Board actions. By contrast, I don't remember ever seeing a representative of a Maine business association attending a regular meeting of the BPC or testifying at a public hearing, except on the current matter of proposed indoor air regulations. Once the issue of indoor regulations is resolved, which may well happen before this legislation, if it passes, takes effect, I think a Maine business association is likely to have little interest or incentive in engaging in the issues that routinely come before the BPC.

Both of the recent past public representatives on the Board, in exit interviews I conducted and published, expressed a strong desire to have more environmental, rather than applicator and business, representation on the Board and in Board proceedings. Jo D. Saffeir, who served on the Board for six years, stated that "the Board needs as broad a range of perspectives as possible. When the audience of most meetings consisted exclusively of ag industry representatives or lawn care industry or structural pesticide industry reps and MOFGA, I felt it was not good. There's a need for other environmental groups or public advocacy groups to get involved in activities of the Board…to reflect the interests of Mainers as a whole." Dr. Alan Lewis, who served on the Board for twelve years and served as Chairman for two years, observed that "the Board is put together in a way that it is pretty much going to maintain the status quo. It will deal with the egregious violations that come along, keeps the major rules in place and the major players somewhat in line, but I don't see it as an agent for change." When asked how he would like to see the Board changed, he recommended: "I think the Board should be balanced with more activists, increased from seven to nine, with four public representatives. The law says the public representatives should have 'demonstrated environmental' interests. We need ….real stringent criteria for environmental expertise."

If any changes are made to the organization of the BPC, I would recommend following the advice of these experienced former Board members, and adding a position for a representative of a Maine statewide environmental organization, and a representative of a Maine organic farming organization.

Respectfully submitted,

Sharon S. Tisher