Fall 2003 Maine BPC Report

BPC Rejects Dow Application

At its June 13 meeting, the Board of Pesticides Control (BPC) rejected the application of Dow AgroSciences to market clopyralid (Stinger) in Maine with a special label that would require a waiver of liability for damage to cranberries. The herbicide was in the news last year because it persists in compost made from treated grass. It is registered for use on cranberries, but Dow refuses to sell the product under the EPA registered label, because instances of damage have occurred on cranberries when the product was used, even in accordance with label instructions. Dow wanted its product approved for sale in Maine under a Special Local Needs (24c) Registration, with a label that would provide that no one can use the product on cranberries unless he or she gives Dow a waiver of liability certificate. The University of Maine Cooperative Extension and the Maine Cranberry Growers Association supported the application, which was tabled at the May 2 meeting, after BPC counsel Mark Randlett questioned the legality of the proposed label. (See The MOF&G, June-Aug. 2003.)

At the June 13 meeting, Randlett reported that he had discussed the proposed label waiver with Mark Dyner in the EPA general counsel’s office. Dyner, who wrote the EPA guidelines on such applications, advised Randlett of his impression that the proposed Dow label “crossed the line and did not meet the intent of the guidance document.” Dyner stated that if Dow were to bring the label to him, the EPA would not approve it. Randlett then advised Dow’s attorney of the BPC’s concern that if the label were approved and anyone used clopyralid without signing the liability waiver, the BPC would be in the incongruous position of enforcing Dow’s rights against the grower, since a label is a state and federally enforceable requirement. The Dow attorney replied, according to Randlett, “Good. That’s exactly the impression we want to give.” The bottom line of the conversation with Dow, Randlett reported, was “this is our label and you can take it or leave it.” Randlett concluded that the “likelihood of reaching agreement with Dow is less than zero.” The board unanimously rejected the application.

Valentine Referred to Consensus Rulemaking Process

Gorham resident Mary Ellen Valentine’s application for a critical pesticide control area 500 feet around her home because of her medical condition was judged complete at the June 13 meeting, and at the board’s suggestion, her counsel, Jennifer Davis of the Disability Rights Center in Augusta, agreed to engage in a consensus rulemaking process with affected neighbors. Valentine and all 28 affected property owners would be invited to an initial meeting in Gorham; then a smaller group of representative participants would be identified. The objective of the process would be to agree to a rule restricting pesticide use that would satisfy all or most parties. Davis reported that Valentine was willing to exempt indoor applications and use of pet collars, and to limit the prohibition on pool chemicals to properties abutting her home. Further action on the application would be tabled pending completion of the process.

Standards for Indoor Pesticide Applications Receive Priority

Over the past two decades, the BPC has repeatedly considered, but failed to meaningfully tackle, the lack of notification procedures for indoor pesticide applications in rental premises or commercial and public buildings and reasonable measures to ensure the safety of tenants and the public. In two years of rulemaking procedures that led to pesticide drift regulations in 1987, many witnesses expressed concerns that people were more likely to be exposed to pesticides from unregulated indoor applications than outdoor drift. According to a January 30, 2002, staff memo, “the Board members at the time agreed and promised to explore the indoor issues once they completed work on Chapter 22.”

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. A number of egregious instances have come to the board’s attention in enforcement proceedings, underscoring the need for protecting the public through tougher regulations. In one instance, an unlicensed landlord applied an illegal pesticide with a “Supersoaker” watergun inside a pregnant woman’s apartment. This instance was ripe for enforcement, because the applicator was unlicensed; however, Maine does not require that landlords notify or obtain consent of their tenants before applying pesticides to apartments.

In 1999, the board convened a Pesticide Indoor Use Advisory Committee to revisit this issue. The committee, which included only a minority of “environmental” members and included representatives of the restaurant and rental real estate industries, developed a consensus recommendation of regulation requiring a logo on rental and commercial establishments, advising tenants and visitors that pesticides are used and giving contact numbers for further information. The board did not follow up on the proposal, despite the substantial time commitment from the advisory committee.

On June 13, 2003, this item reappeared on the BPC’s planning agenda, this time ranked first in a ballot taken of board members on “discretionary tasks” that it should undertake “for future action as time permits.” The item’s high ranking, garnering 15 votes, more than three times any other item, was perhaps provoked by another enforcement action in May against a Bangor landlord for applying insect foggers at three times the legal rate while an apartment was still occupied, sending two tenants to Eastern Maine Medical Center. (see The MOF&G, June-Aug. 2003.)

Bob Batteese, executive director of the BPC, noted that the resources addressed to Mary Ellen Valentine’s critical pesticide control area application and a consensus rulemaking process (see above) “may supersede” developing indoor regulations soon.

– Sharon Tisher