Maine Organic Farmers and Gardeners Association


By Heather Spalding and Jean English

In 2018 the Maine Board of Pesticides Control (BPC) discussed local pesticide ordinances, use of drones to apply pesticides, and board member responsibilities, as well as the usual business of granting variances and special registrations for pesticide uses, levying fines for violators of pesticides rules, elucidating difficulties in tracking pesticide use in Maine, and more.

The BPC, Maine's lead agency for pesticide oversight, is attached to the Maine Department of Agriculture, Conservation and Forestry (DACF). Its seven-member public board (scroll to the bottom of the page) makes policy decisions. This report covers all 2018 BPC meetings. Complete documents relating to BPC meetings are posted on maine.gov. MOFGA posts time-sensitive action alerts related to the BPC at www.mofga.org, in our weekly emailed Bulletin Board (sign up here) and on our Facebook page.

Heather Spalding, MOFGA’s deputy director, attends BPC meetings to represent MOFGA’s views. This summary is taken from her notes and from BPC minutes.

Staff and Board Member Updates

Cam Lay, BPC director for less than a year, resigned early in 2018, and in June the board appointed Megan Patterson as the new director. Patterson previously managed pesticide programs for the BPC. She received the William Twarog Manager of the Year Award for the DACF in December 2017. John Pietroski was promoted to manager of pesticide programs.

The board appointed Dr. Jack Waterman, retired family medicine physician from Waldoboro, to the BPC medical seat.

Pamela Bryer, Ph.D., became the BPC toxicologist. Bryer holds degrees in zoology from UMaine and a doctorate in environmental toxicology from Texas Tech University. She has worked as an environmental consultant in air quality permitting, as an assistant professor of environmental toxicology, for major petrochemical companies and as a compliance officer with the Maine Drinking Water Program. Bryer is active in increasing experiential learning for children in the STEM fields, and serves on the board of the Friends of Maine Coastal Islands National Wildlife Refuge.

Genetically Engineered Bt Corn Approved

In October 2017 the board denied requests from Monsanto Company and Dow AgroSciences LLC to register several new genetically engineered (GE) Bt (Bacillus thuringiensis) corn products. In January 2018 representatives from Monsanto and Dow presented more information to the board about these products that have an additional mode of action. Dave Tierney, director of government affairs for Monsanto, said they had been approved in all other 49 states and Canada. Registration in Maine would enable the company to move seed freely throughout the United States and Canada. Monsanto agronomist James Valent said that options for managing western corn rootworm were crop rotation, soil applied insecticides, corn traits or no management. He said that rotation is rarely viable for corn growers, insecticides are not always effective, and corn rootworm populations can explode in one year, so having the Bt product available when needed is crucial. He explained that SmartStax PRO is the first product with a third mode of action – RNAi target specific to the DNA sequence of the rootworm. (In RNAi, or RNA interference, RNA molecules inhibit gene expression or translation by neutralizing targeted messenger RNA molecules.) Valent added that the product can suppress the European corn borer, corn earworm, western bean cutworm, black cutworm, western and northern rootworm, and some secondary pests from the seed treatment.

Stephanie Burton of Dow said that over 90 Bt corn products are registered in Maine and that the new products are similar to previously registered traits, but with an additional mode of action. The new products eventually will replace older products, so not registering them will limit Maine farmers’ access, she said.

Clark Granger supported the registration, saying that material submitted with the registration request showed that this chemistry could control 10 insects; that pests will eventually develop resistance, so products will change; and that not everyone can rotate with alfalfa because it will not overwinter in some cold, icy soils. He said the board learned in January 2018 that western corn rootworm is presenting some pressure in Maine and that some populations are even showing some pesticide resistance.

John Jemison said that the registration request in October 2017 was for controlling western corn rootworm, and using a product that is only for western corn rootworm on a different pest would violate the law. He added that Maine has no documented need, that farmers can get better outcomes with rotation than with this product, and that the board was not aware that other options would be phased out. He worries that Maine could begin to see the Bt-resistant corn rootworm that is present in the West.

Jemison asked whether the refuge in a bag (a blend of mostly Bt corn with a small amount of non-Bt corn) is protecting organic corn growers. He noted that an organic grower who was concerned about pollen drifting from Bt varieties previously could ask the Bt corn grower to plant a refuge of non-Bt corn between their fields, but the refuge in a bag no longer provides that barrier.

Also related to Bt corn, Jemison noted that training is required every three years for any grower who wants to use the product, and seed sellers are supposed to see the grower’s certificate. Patterson said that training occurs at the Maine Agricultural Trades Show and elsewhere. Staff tracks who has training certificates and notifies those who need renewal.

Registration of the new Bt products was approved, with three in favor and Jemison opposed.

Board Member Responsibilities

Reviewing board responsibilities, Assistant Attorney General Mark Randlett said that the BPC has a duty to represent interests of the public as a whole. Its decisions must be guided by views and concerns of the public, must consider all facts and information available and, according to the Freedom of Access Act, must be made in an open, public process so that citizens can participate and have a chance to understand decisions. Meetings, decisions and records are all public, and records are available for public review and inspection. Under limited circumstances the board can go into executive session, but even then, decisions must be made in public. A clear law prohibits clandestine meetings or policy conversations of board members in which decisions are made or deals are struck, with consequences for the department and the board for violating this law.

Anyone who disagrees with the legality of a decision has a right to file an appeal with a superior court. If the court finds an infraction, it can nullify the action. If a decision was made in bad faith with intent to skirt public meeting laws, the court can order payment of plaintiff’s and other incurred costs and can impose a $500 fine against the agency.

Contact and discussion with the public outside board meetings is appropriate, particularly to help inform board members, but board members must exercise judgment about the extent of personal contact. If a rulemaking process is under way, they have to be especially careful and would do better to advise public citizens to bring concerns to the board meeting or to contact board staff.

Any conflict of interest must be reported, and board members should recuse themselves in cases of conflict of interest.

Heather Spalding noted that had this presentation happened sooner, the October 2017 vote not to approve the new GE corn might not have been overturned.

Using Drones to Apply Pesticides

Cam Lay said he had received inquiries from aerial applicators who would like to use drones (including to control browntail moth), but he wanted to research regulations implemented by other states. Deven Morrill noted that the FAA requires registration of flights and drones.

Granger asked if drone pilots could legally apply pesticides under current rules if they passed the aerial exam. Randlett said nothing in rule prohibits that. Patterson noted that the EPA is requiring all states to redraft their state plans within two years and that chapters 10, 22, 51 and 58 of Maine’s pesticide rules would be affected. She said that nationwide all applicators will have to be at least 18 years old, and identification will be required for taking exams. New requirements will cover categories such as structural and agricultural fumigation for private applicators, and a training requirement for all unlicensed applicators must be instituted. In agriculture, training under the Worker Protection Standard is already mandatory, but this is the first training requirement for unlicensed commercial applicators.

Anne Chamberlain, BPC policy and regulations specialist, noted that applicators would need to meet all requirements detailed in chapter 22, including creating a site plan, a site-specific application checklist, and 1,000-foot buffer zones for sensitive areas likely to be occupied. She added that chapter 51 includes requirements for notification for aerial applications.

After the above discussion, the staff realized a gap in BPC rules: Chapter 10 states that all aerial applicators shall be considered commercial applicators, but the definition of commercial applicator does not allow for applications to lands owned or leased by the applicator for the purposes of producing an agricultural commodity. So applications by drones to agricultural crops apparently could be done by hiring a commercial applicator but could not be done by the owner/lessee. The staff said the board should consider this discrepancy.

Local Pesticide Ordinances

Jesse O’Brien told the BPC that his Downeast Turf farms cannot grow turf in all of its fields without pesticides. He said that the South Portland Pest Management Advisory Committee (PMAC) does not use the BPC and UMaine as resources on its website, nor do those entities seem to be taking leadership on the issue of local pesticide ordinances – despite the fact that the BPC, not municipalities, is tasked with making policy for the state.

Likewise, Riley Titus of Responsible Industry for a Sound Environment (RISE), representing pesticide distributors and producers, said that pesticide registration fees help fund the pesticide program, and some local ordinances seem to contradict state policies. Integrated pest management (IPM), which is recognized in statute, he said, includes cultural, mechanical and chemical controls, and he sees a lack of IPM in many local ordinances. He asked if towns were contacting the BPC for education. He added that municipalities appear to be further regulating a product that is already highly regulated. Titus said he was concerned about removal of the freedom of choice regarding how homeowners and businesses can maintain properties. He wants individuals to have all tools available to them once the steps of IPM have been conducted. He asked how the board, the IPM Council and UMaine Cooperative Extension were educating people, and he proposed that the board restate its duty to IPM in a resolution.

Granger agreed that property owners should be able to maintain their landscapes as they wish.

Jemison expressed frustration that citizens are trying to address pesticide issues correctly but are not aware of existing inspections, safeguards, laws and resources. He said part of the problem is that when people distrust science and government, actions of the board will not make much difference. He added that IPM seems almost never to be used in contract lawn care; instead, applications are generally made on a calendar basis.

Curtis Bohlen was troubled that locally elected officials’ decisions could be overturned by a non-legislative board such as the BPC. He disagreed with Titus and does not believe that the ordinances are undercutting IPM.

Morrill said that some actions taken by municipalities may work and should be instituted at the state level. He added that the ordinances also limit what hobby gardeners and florists can do.

Dave Adams asked if the consensus in the PMAC was that organic pesticides are safer. O’Brien said yes – which concerns him.

Randlett recommended that the board not adopt Titus’ proposed resolution. He said that IPM is a goal of the state, written in statute, not a policy; the state policy is to minimize reliance on pesticides. He summarized a case in which Central Maine Power had challenged the town of Lebanon, Maine, for its ordinance restricting use of pesticides in that town. The Maine Supreme Court sided with the town. He added that a person who wants to challenge a town ordinance can do so in court or through the legislature.

Listening Session

In a listening session, Spalding said she does not believe IPM and ordinances are mutually exclusive, and she would like to keep communication open between MOFGA and the board on this subject. Noting that some communications to the board seem to receive special attention, she asked how submissions make it into the board packet, which ones are addressed, how the board determines which agricultural operations receive unannounced visits from an inspector, and what the board is considering regarding tracking the volume of pesticides purchased and used in Maine.

Chamberlain said that all correspondence received before the deadline (8 a.m. three days before a BPC meeting) is included. Correspondence received after the agenda is released is sent to the board but not placed on the agenda. When someone asks to be on the agenda, the board makes that decision.

Spalding then asked why a few letters complaining about ordinances were discussed, while other submissions were not. Bohlen responded that the BPC can run its meetings informally and address what may interest its members, but that it will try to be more mindful about those decisions in the future.

Regarding inspections, Raymond Connors, manager of compliance, said that the BPC staff details how many of each type of inspection will be done in the coming year. Inspectors have quite a bit of autonomy in where they conduct routine inspections, but they try to consider where environmental consequences may be greater.

Regarding tracking pesticide sales and use, Patterson said that staff receives annual use and sales reports but does not compile the data, as most reports are hand printed, and data correction and verification are often required and are difficult. Also, about 1,000 of the approximately 12,000 pesticides registered in Maine change annually, so any database would need to be updated annually. The board discussed the possibility of requiring that applicators submit data digitally in a usable format.

Right of Way Issues

Spencer Aitel told the board about his concerns regarding treatment of roadside rights of way adjacent to his 500-acre MOFGA-certified organic Two Loons Farm in China, Maine. The board has an open investigation concerning an application made by a Maine DOT contractor in June 2017 along a right of way adjacent to Aitel’s property.

Aitel’s farm has been organic since 1996. When he was baling off Route 32, a DOT spray truck came toward him. When he was about 150 feet from the truck, the DOT-contracted applicator began spraying. Aitel told the applicator that he could not spray by an organic farm. The applicator disagreed, and the truck moved about 100 feet down the road and began spraying again. Aitel reported the incident to MDOT because he did not want to lose his organic certification or his livelihood. Later he saw the crew spraying more of his property on Route 3. He reported this to the individual’s boss, Bob Moosmann. Aitel said the crew also mowed the roadside after spraying. Aitel believes the crew violated the pesticide label by spraying in such a manner. He added that the Garlon label says not to apply the material where runoff will flow onto agricultural land. Aitel also said MDOT applicators did not recognize agricultural lands, cross culverts or nontarget species. He said the MDOT contract states not to spray within 100 feet of organic farms. He believes organic farms are being singled out to maintain their own roadsides, and he wants MDOT to acknowledge its responsibilities.

Granger asked if Aitel posted “No Spray” signs. Aitel said he has them by his house but not by all fields. He reiterated that signs should not make a difference because the MDOT contract requires that it stay away from agricultural and hay fields. Granger asked if the organic community would be willing to come up with signs that could be placed by roadsides. Adams said that the applicator should be responsible.

Asked about the digital maps of organic cropland that MOFGA’s Katy Green had made, Patterson said they become outdated quickly.

Mosquito Monitoring

The board approved IPM specialist Kathy Murray’s request for $6,762 to help surveil and identify mosquitos, develop GIS-based mosquito habitat mapping, and continue outreach around vector-borne diseases. Murray said that a few years ago the state legislature directed the DACF to create an emergency response plan in case of a vector-borne disease emergency involving mosquitoes after two deaths occurred in Vermont from  Eastern Equine Encephalitis (EEE). She has been running a small monitoring program related to West Nile Virus since 2009, but EEE is of greater concern. Maine had two human cases in 2013 – one was fatal; in the other, the person survived but with complications. In 2015 another individual died from EEE in Maine. Federal funding for monitoring may not be reliable, and last year arrived too late to be useful.

Variance Requests

The board approved variances for the following:

  • Deane Van Dusen of the Maine Department of Transportation (MDOT) Environmental Office to control invasive plants in remediated and constructed wetlands
  • Vegetation Management Services, Inc., to control invasive species and poison ivy at the Biddeford Pool Land Trust property and at two sites in Great Pond, Maine: along Collar Brook and on the northeast side of King Pond
  • MDOT to control weeds along state-maintained roads and other transportation facilities
  • Dubois Contracting to control weeds on the Fort Kent levee along the St. John and Fish Rivers
  • Ron Lemin Jr. to control Japanese barberry and honeysuckle on Nautilus Island in Castine Harbor
  • Acadia National Park to control invasive plants
  • Andrew Powers to control invasive plants in Cape Elizabeth
  • Town of Newport to control poison ivy along the Durham Bridge
  • Mark Eaton to control invasive phragmites in York
  • Piscataqua Landscaping and Tree Service to control invasive buckthorn, honeysuckle and bittersweet in Shepard’s Cove, Kittery

Consent Agreements

The board approved the following consent agreements and fines:

  • Service Master Elite of Saco – an unlicensed applicator applied Benefect Botanical Disinfectant in a Lewiston structure during mold remediation work. $1,000
  • Referral of Unresolved Consent Agreement with PLD Group of Augusta, Maine – an unlicensed applicator applied pesticides to control bed bugs inside structures in Augusta and the Augusta area. The company returned the signed consent agreement without the $1,500 payment. The board referred the case to the Office of the Attorney General for prosecution.
  • Black Kettle Farm of Lyman – applying Pyganic Crop Protection EC 5.0 II at a rate exceeding the maximum labeled rate and without wearing required chemical resistant gloves when mixing, loading and applying; failure to maintain OSHA safety data sheets at a central information display. $150
  • Penquis, Bangor – application of Roundup herbicide to a playground at the Milo Elementary School by an unlicensed person and without authorization by the school IPM coordinator. $250
  • Riverview Psychiatric Center, Augusta – application of Roundup Extended Control herbicide by an unlicensed person. $200
  • White’s Weed Control of Palmyra – broadcast application without a variance of Rodeo and Aquasweep herbicides within 25 feet of water along the embankments of the causeway that crosses Sebasticook Lake on the Durham Bridge Road in Newport. $250
  • Roof Cleaning Solutions of Oakland – 11 violations, including applying ZeroTol 2.0 Fungicide, Bactericide and Algicide and Clorox to a shingled roof in Raymond without a commercial pesticide applicator’s license. The material is not labeled for residential roofs. $500
  • Witherly’s Green House & Garden Center of Hermon – repeatedly offering unregistered pesticides for sale. $500
  • Mainely Ticks of Windham – applying Tempo EC Ultra to the lawn and perimeter of a residential yard in Sanford after the property had been sold and without authorization from the new owner. $500
  • Wise Acres Farm of Kenduskeag – exceeding the maximum label application rate when applying Actinovate AG Biological Fungicide to strawberry fields; not wearing the required respirator when mixing, loading and applying the pesticide; not having OSHA safety data sheets at a central information display as required by the federal Worker Protection Standard; incomplete pesticide application records. $175
  • Paul Finden and Emily Rogals of Belfast – applying Roundup herbicide to a neighbor’s property without the property owners’ authorization. $1,500

Communications

The board received a few communications. Northport resident B. K. Keller expressed concern about broad-scale roadside spraying of herbicides. Keller made several thoughtful suggestions for alternatives to herbicides.

Melissa Hyner Gugliotti of Kennebunk opposed local pesticide ordinances, and George and Patricia Egbert of Egbert’s Lawncare LLC in Gorham supported a resolution that the BPC promote IPM.

Mark Aranson, M.D., had asked that Cumberland town manager William Shane petition the Maine CDC to declare an infestation of browntail moth (BTM) as a public health nuisance. In response to Aranson’s letter urging pesticide spraying, Jody Spear of Harborside urged the BPC “to exercise its mandate to minimize reliance on pesticides in advising state residents on managing BTM responsibly. Practical advice would include covering skin surfaces in areas where toxic hairs are present and discontinuing activities like leaf blowing, which spreads hairs around.” Spear also noted state literature recommending clipping webs from October to mid-April, hosing down caterpillars when they emerge, and using double applications of Bt rather than neonicotinoids and pyrethroids before caterpillars emerge. Spear added at a BPC listening session that she was impressed with progress made due to the Portland pesticide ordinance.

Citing an interview with Caius Rommens, author of “Pandora’s Potatoes,” Spear urged the BPC to withdraw its approval of the GE Innate potato. In addition to threats to human health from toxins that build up in concealed bruise areas, Rommens notes hazards to endangered bee colonies: GE potato pollen fed to bee larvae could be expected to alter their genetic makeup. Rommens warns that Innate potatoes entering the market should be evaluated for hidden bruises and infections and for levels of alpha-aminoadipate, tyramine and other toxins.

Karen Snyder, a beekeeper and farmer from Portland, urged the BPC not “to be persuaded by agribusiness/landscapers and lobbyist groups like RISE.”

Other Business

The BPC unanimously approved $5,360 to fund a Migrant and Seasonal Farmworker Safety Education program for 2018.

The board authorized the staff to spend $500 for graphic design work for a sign to be posted in pesticide self-service sales areas. Spalding commented that the BPC tag line, “Think first, spray last,” should be the takeaway from the sign, as well as “Always read the label.” The board approved a design in November.

Since 1974 the DACF has received program partnership funds from EPA to support regulating pesticide use in Maine. When this partnership began, a “Plan for Certification of Pesticide Applicators” was developed. The document needs to be updated to reflect new federal regulations that will be effective in two years. The board discussed several items in the document.

Chamberlain said that all BPC statutes, rules, policies and other pertinent information are on the BPC website.

The Division of Plant Health reports annually to the Eastern Plant Board about program-wide outreach, education, licensing, enforcement and regulatory development. The Eastern Plant Board, the liaison for state regulatory officials dealing with the federal government, includes states from Maine to New York to West Virginia. Some pesticide registration fees support these efforts. The report summarizes many programs funded by the BPC dedicated revenue account, including the nursery program, IPM program, cooperative agricultural pest survey program and the apiary program. The report is on the BPC website.

Staff from the Departments of Health and Human Services and Environmental Protection asked the BPC which chemistries they should look for when they begin testing medical marijuana for pesticide residues.

The BPC staff determined by consulting with Inland Fisheries and Wildlife that the 4-Poster automated pesticide dispensing system that treats deer for ticks is not legal in Maine because it is a baiting device.


Members of the Maine Board of Pesticides Control

Curtis C. Bohlen, director, Casco Bay Estuary Partnership, University of Southern Maine, Muskie School of Public Service, Portland (public member and vice-chair of the BPC)

Bruce V. Flewelling, potato grower, Easton (agricultural expertise)

Clark A. Granger, consulting forester, Woolwich (forestry expertise)

John M. Jemison Jr., water quality and soil specialist, University of Maine Cooperative Extension, Orono (water quality and soil specialist)

Deven Morrill, licensed arborist, Lucas Tree Experts, Portland (public member and chair of the BPC)

Dave Adams, commercial applicator, Dasco Inc., Presque Isle (commercial applicator expertise)

Jack Waterman, physician, Waldoboro (medical expertise)