By Jean English and Heather Spalding
The Maine Board of Pesticides Control (BPC) addressed a new topic in 2017: the use of drones to apply pesticides. Beyond that, most of the meetings covered business as usual: granting variances and special registrations for pesticide uses, levying minimal fines for violators of pesticides rules, elucidating difficulties in tracking pesticide use in Maine, discussing budgets and more. The board canceled meetings scheduled for August, September and December, citing lack of business to discuss. The board also decided not to have a summer meeting/tour with a focus on a specific region of the state. MOFGA maintains that each meeting agenda should include an item addressing the public’s concerns about pesticides.
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 makes policy decisions. This report covers all 2017 BPC meetings. Complete documents relating to BPC meetings are posted at https://www.maine.gov/dacf/php/pesticides/meetings.shtml. MOFGA posts time-sensitive action alerts related to the BPC throughout the year at https://www.mofga.org/Programs/PublicPolicyInitiatives/MaineBoardofPesticidesControl/tabid/3073/Default.aspx, in our weekly Bulletin Board (https://mofga.org/Publications/BulletinBoard/tabid/2535/Default.aspx) and on our Facebook page.
Representatives from MOFGA attend BPC meetings to represent MOFGA’s views. This summary is taken from BPC minutes and from input from MOFGA staff members Heather Spalding and Katy Green.
Staff and Board Member Updates
Cam Lay became the BPC director this year. Walter Whitcomb, DACF commissioner, told the BPC that a board member was not on the selection committee in order to maintain fairness to the number of highly qualified candidates. Whitcomb noted that the board did have the final decision on the selection. The board approved Lay, with five in favor and one (Granger) opposed.
The board elected Deven Morrill (public member) as chair and Curtis Bohlen (public member) as vice-chair. Other members are Bruce Flewelling (agricultural expertise), Clark Granger (forestry expertise), John Jemison (water quality and soil specialist) and Richard Stevenson (commercial applicator expertise). Since the death of Carol Eckert, M.D., in October 2016, the position of a member with medical expertise has remained vacant. Retired family doctor Jack Waterman has been nominated to serve in this capacity. The Legislature will need to confirm Waterman’s candidacy. Dr. Lebelle Hicks, longtime toxicologist with the BPC, announced her retirement from the Department of Agriculture. She intends to do consulting work as time allows.
Assistant Attorney General Mark Randlett also attends meetings.
Using Drones to Apply Pesticides
The BPC reviewed the potential use of drones (aka unmanned aerial vehicles, UAVs, or unmanned aerial systems, UASs) for aerial pesticide applications. To date, applying pesticides by drones has not been permitted in Maine, and the Federal Aviation Administration (FAA) has permitted such use in only a few locations nationwide. To make an application via drone, operators must apply to the FAA and comply with various regulations. Aerial pesticide applicators need to be commercial operators or masters and have the aerial category.
Current BPC rules do not distinguish between manned and unmanned aircraft. Randlett said that the aerial pest control category and the drift rule would apply to applications by drones, but other issues may arise.
Jesse Gibbons of Coutts Brothers, a Randolph, Maine-based company that uses drones elsewhere for mapping and surveying electrical projects, said the drone creates a three-dimensional map using GIS and then that map is used to program the drone’s path. Once programmed, the agricultural drone Coutts uses sprays from a height of 1 meter above crops. The droplet size can be adjusted, and pesticides can be applied to precise locations. The battery must be recharged every 45 minutes.
Heather Spalding asked if Coutts Brothers could work with the board to determine where drift occurs. Gibbons said that could be a great application.
Megan Patterson, BPC manager of pesticide programs, said that only commercial (not private) applicators can do aerial pesticide applications. They can oversee applications from a bucket truck, but no BPC rules require that they have to be able to see where spray is going to prevent drift. In addition to a UAV permit from the FAA, operators need other permits to apply pesticides, fly over heavily populated areas and carry hazardous chemicals. If they get those permits, nothing in Maine’s rules prevents them from applying pesticides with drones.
Daniel Jockett, an FAA aviation safety inspector for Maine, New Hampshire and Vermont, discussed obtaining certification to apply pesticides with drones. He said that drones are aircraft, by public law. The FAA created new regulations for drones and revised the Code of Federal Regulations (CFR), which already covered balloons, amateur rockets, radio-controlled model aircraft and other non-standard aircraft. CFR part 107 applies to commercially operating small drones under 55 pounds. Certified operators must be at least 16 years old, pass an aeronautical exam, obtain a remote pilot certificate, pass a background check, conduct a pre-flight inspection, have no medical issues affecting safety, maintain visual line of sight during operation, stay below 400 feet or within 400 feet of a structure, stay under the maximum ground speed of 100 mph, ensure the drone weighs less than 55 pounds (including payload), fly during daylight or civil twilight only, not operate over people, have no more than one drone per operator and carry an external load only if it is secure and does not affect flight control.
For agricultural use the pilot also must obtain certification (free) under Part 137 of FAA flight standards. Some rules can be waived. See www.faa.gov/uas/request waiver/. The FAA is creating regulations for drones heavier than 55 pounds, but currently the only way to operate one is to obtain a waiver. Examples of waivers include operating from a moving vehicle or aircraft, operating with no visual line of sight, and operating multiple small drones.
Before applying for certification under Part 137, the operator must petition FAA for any exemptions needed. For example, all aircraft pilots must have a shoulder restraint harness; a drone operator should apply for an exemption. Applicants must possess an aircraft, attend a precertification meeting, submit documents for review, complete a demo and inspection, receive a certificate and accept intermittent surveillance once certified. An FAA exemption is required to apply pesticides on one’s own field. Operators should look at the Before You Fly app on faa.gov to see if they are within 5 miles of an airport.
Lebelle Hicks, BPC toxicologist, noted that most pesticide labels specify that aerial applications be made 10 feet over crops. Jockett was not aware of any pesticide labels that will be applicable for use with drones.
Regarding hacking, Jockett said an individual can direct a beam at a flying drone to make it drop, but efforts are ongoing to counteract this.
Jockett said no one has become certified to apply pesticides with drones in Maine, but an individual is interested in using the technology to make applications for browntail moth control.
Pesticide Use Data
The board received requests from MOFGA and the Natural Resources Council of Maine that it compile and release data on pesticide sales and use in Maine. MOFGA provided a list of active ingredients for which it would like data, in order to get some forward movement on this longstanding issue, since the BPC staff has repeatedly said that collecting the data was too onerous. Katy Green of MOFGA asked how the board is fulfilling its mandate of reducing pesticide use if no one knows what is being used. Randlett said the statute directs the board to “minimize reliance” on pesticides, not to “reduce use.”
Granger suggested using BPC funds to educate and promote IPM rather than to count pounds of active ingredient used. Morrill said data collection should parallel homeowner education. Green asked, if collecting information about pounds used was not the way to go, then what was? Morrill said the board does not have that answer yet and needs to determine what it can do with its existing budget.
Maine Migrant Health Program
The board approved $6,630 in funding for the Maine Migrant Health (MMH) Program and Eastern Maine Development Corporation to help support worker safety training for summer 2017. During 2016, 704 individuals received Worker Protection Standard training and take-home exposure training, and 698 received heat stress training – 228 percent more than in 2015. Elizabeth Charles McGough, director of outreach for the Maine Migrant Health Program, noted that the late Carol Eckert, M.D., who had been a BPC member, had also been an MMH volunteer clinician. McGough suggested that $1,000 of the funding be used to purchase items such as bandanas and water bottles with Eckert’s name on them to give to farm workers who complete the safety training, and $1,500 be used to align the hourly rate of the summer staff person with that of other staff. The board agreed.
No Statute of Limitations on Complaints
Darin Hammond, senior manager of farm operations for Jasper Wyman & Son of Milbridge, Maine, wrote to the board about its investigation of complaints related to pesticide applications made by Wyman 20 months before the complaint was filed. He suggested a time limit for complaints and a way for a person to address the board before a complaint becomes a consent agreement. Randlett said that the latter option already exists. Regarding a statute of limitations, Randlett said that with state agencies and civil actions in Maine, generally no time limits exist on civil violations; that if the board enacted one, it would be ineffectual and unenforceable because the attorney general’s office would not be bound by it; and that he would investigate a complaint past a statute if it were in the interest of the public to do so. He advised against a policy that would restrict board or staff investigations or would restrict pursuing action against an alleged violation. He added that sometimes it would be appropriate and necessary to pursue complaints that are more than 20 months old.
Controlling Browntail Moth Near Marine Waters
Section 5 of Chapter 29 of Maine statutes regulates the use of insecticides to control browntail moth within 250 feet of marine waters. The board approved some newer, lower-risk products for use in the 50- to 250-foot area from the mean high tide mark to control browntail moth, including spinosad, Bacillus thuringiensis kurstaki and azadirachtin.
In addition, the board accepted a definition (only for Chapter 29 and only for applications for browntail moth control within 0 to 50 feet of the water) that a biological pesticide “includes any microbial pesticide that contains the microorganism and biological derivatives as approved by the Board.”
The annual BPC budget of a little over $2 million includes about $138,000 from licensing application fees, $1.9 million from product registration fees and $300,000 from an EPA grant. The budget funds 10 permanent full-time positions, four full-time seasonal positions and five full-time positions in the Plant Health division (an apiarist, state horticulturist, two assistant horticulturists and an IPM coordinator).
About $200,000 per year goes for administration fees, technology and other expenses that benefit programs in the Department of Agriculture, Conservation and Forestry.
Expenditures exceeded revenue by $700,000 in 2016 because of Pega, a new portal for the department that provides access to all pesticide applicator and product registration information, including license expiration dates, exam scores, credits earned, applications for exams and licenses.
By law, the board must annually grant no less than $135,000 to UMaine Cooperative Extension for IPM and other programs (but not for pesticide safety training). The budget also funds a grant to Cooperative Extension to develop and revise pesticide applicator training manuals. Donald Barry, who worked on manuals, recently retired. James Dill from Extension proposed revising the job to be a combined UM Pesticide Safety Education Program and Pesticide Applicator Training position and to fund the position at $65,000 (including benefits). Dill added that writing a manual from scratch takes about 10 months to a year, and the 20 manuals for different commodities constantly need revision. The board approved the $65,000 funding request.
Pesticide Registration and Variance Requests
The board or staff approved Special Local Need (SLN) [24(c)] pesticide registration and variance requests to the following:
Jeffrey M. Taylor of Vegetation Control Service, Inc., in Athol, Mass., to control invasive plants on Maine Audubon East Point Sanctuary property in Biddeford Pool within 25 feet of surface water
Dow AgroSciences, on behalf of UMaine Cooperative Extension and broccoli growers, to extend a registration for GoalTenderTM herbicide (oxyfluorfen) for postemergent weed control on broccoli
Gowan Company Inc. to increase the number of allowable applications of Malathion 8 Flowable on cane berries from three to four per year to control spotted wing drosophila. The material would be rotated with other products, and the SLN would expire on December 31, 2018. Jemison said he wants to ensure that insect numbers warrant spraying, adding that finding an alternative such as a natural predator would be ideal. Randlett said that pest population cannot be considered for SLN registration of a pesticide. He cited Title 7 § 607(8-A)(D): “The board may not make any lack of essentiality a criterion for denying registration of any pesticide.”
J.R. Simplot Company for three new seed potato products that contain the VNT1 protein. Sharon Fitzpatrick of Simplot said the potatoes are genetically engineered (GE) with a wild potato gene that adds resistance to late blight and reduces the number of fungicide applications required in a late blight affected field. Fitzpatrick added that Simplot is beginning to use these seed potatoes for breeding, but every time they are bred, they change a little, so Simplot has had to seek regulatory approval three times. She also said that many potato chip packages say “produced with genetic engineering” and that some manufacturers are accepting GE products for the fresh market. Fitzpatrick shared a fungicide application chart for the GE potatoes indicating that the farmer could anticipate an early-season application, two applications mid-season and another late-season application. In the presence of late blight, they would need an every-14-day application schedule. Board member and potato grower Bruce Flewelling reported that his operation was normally on an every-five-to-seven-day application schedule.
Syngenta Crop Protection, Inc., for Callisto Herbicide on lowbush blueberries in bearing and nonbearing years for broadleaf weed control. The expiring 24(c) for Callisto is for use in lowbush blueberries during the crop-bearing year.
Loveland Products, Inc., for Malathion 8 Aquamul insecticide to increase the maximum application rate to control spotted wing drosophila on high and lowbush blueberries
Arkion Life Sciences LLC for use of Avipel Hopper Box (dry) corn seed treatment (anthraquinone) to discourage consumption of corn seed by grackles, blackbirds and crows
Dubois Contracting to broadcast herbicides along portions of the Ft. Kent levee along the St. John and Fish Rivers
Maine Department of Transportation to control of woody brush on roadsides in various towns
Stantec, Inc., to control Japanese knotweed on the Howard property in Phippsburg
Don Weimann of Asplundh Tree Expert Co. of Ironton, Ohio, and Brian Chateauvert of RWC, Inc., in Westfield, Mass., to control vegetation on railroad rights of-way
Ryan Minzner of The Woodlands Club in Falmouth, Maine, for its pest management program
Regarding variance requests for Chapter 29 Section 6 (broadcast spraying within 25 feet of surface water), the board began a two-year trial in 2015 in which staff could issue new variances for such pesticide applications in railroad and DOT rights-of-way under certain criteria. The staff asked for updated guidance for drafting a formal policy for initial variances and renewals, including whether flood-control levees and utility lines should be included in the policy. The board agreed that unless significant changes exist, the staff can grant repeat variances.
Also regarding Chapter 29 Section 6(c), Ron Lemin of Crop Production Services asked that the board clarify whether the definition of wetlands – “dominated by emergent or aquatic plants” – included dry areas such as ditches and skidder ruts growing plants such as phragmites, cattails and purple loosestrife. The board approved a policy that buffers are not required for small areas that do not contain standing water, including manmade depressions such as skidder ruts and road ditches, even if they contain plant communities normally associated with wetlands; and buffers are not required for manmade depressions even if they contain standing water.
Variances approved by the staff under Chapter 29 Section 6 included one to Elizabeth Farrell of New Portland for control of knotweed on her property along the Carrabassett River; to Joseph Anderson of High Pine Environmental, LLC, in Portland for control of phragmites in Kittery; William Burman of Burman Land and Tree, LLC, in Orrington to control invasive plants in Vassalboro; and to Stephen Dunham to control invasive plants in Baxter State Park.
Regarding registration requests for several new genetically engineered Bt corn products from Monsanto and Dow to control western corn rootworm by silencing a gene in the worm that produces a protein, Jemison asked if Maine has ever had a problem with this insect. Dill said they have been found but were never abundant enough to affect yield or quality. He added that a one-year crop rotation breaks the corn rootworm cycle. In October 2017 the board voted 3-1 (with Granger opposed) not to register the product based on lack of need. Not to be outdone, Monsanto and Dow sent representatives to the January BPC meeting to argue their case anew, in person. They explained that their products regularly met with pest resistance on a fairly predictable schedule, so they offered a concurrent schedule of proposed registrations for new GE corn products. Although they presented no evidence that the western corn rootworm was adversely impacting yield or quality of Maine corn crops, they maintained that farmers should have the best technology available to them at all times. Crop consultants and one dairy farmer in the room reported that they had, in fact, seen western corn rootworm in Maine, although they didn’t provide quantifiable evidence of harm. Heather Spalding asked John Jemison how the state would quantify a need for a particular product. Jemison said that it was difficult to tell what was happening all over the state, and that he would prefer to gather more information on that point before approving registration on the Monsanto and Dow products. After a successful vote to reconsider the proposed registrations, the board voted to reverse its position from the October meeting and allow the registrations. Jemison opposed the motion.
The board approved the following consent agreements and fines:
Alfred Fugazzi, Stone Wall Farms, Lincoln – applying the restricted-use pesticide Lannate to bread placed near cropland to control crows. The pesticide killed two dogs and at least seven crows. $1,500
Brian Cloutier, Greenscapes of Maine, Kennebunk – commercial use of Dimension, a fertilizer and herbicide product, by an unlicensed applicator at a housing complex in Wells to control crabgrass. $400
Benjamin Goodall, Goodall Enterprises DBA NaturaLawn of America of Bangor – unauthorized application by a company employee of the insecticide DeltaGard G to a lawn in Rockport. $500
Matt Ten Eyck of Salmon Falls Resort & Golf Club LLC of Hollis Center – two fungicide applications by an unlicensed applicator. $400
Jason Douin of JD Groundscapes Inc. of Augusta – attempted application of Roundup herbicide by an unlicensed employee. $500
Weyerhaeuser Company of Fairfield – spraying herbicide in areas of Greenville that should not have been sprayed, including buffers and streams, by contracted JBI Helicopters and Skyline. Weyerhaueser mapped areas to be sprayed and failed to note sensitive areas on the maps. $8,000
Town of Ogunquit – rodenticide applications by unlicensed applicators and use of a
pesticide product without a bait station, which was required for the outdoor, above-ground application made. $3,500
Green Thumb Lawn Service of Brewer – applying an herbicide to the wrong property. $1,000
Frederick’s Property Preservation and Inspections of Dixmont – Unlicensed applicators exceeded the maximum rate of application of a weed and feed product while cleaning a foreclosed property in Whitefield and leaving weed and feed product in a wetland. $900
Dependable Pest Solutions of Rochester, N.H. – An unlicensed applicator made 43 pesticide applications in Maine in 2016. $1,500
The board received several communications. MOFGA (via Ted Quaday) and NRCM (via Ryan Parker) asked the board to track and annually disseminate sales data for prodiamine, dicamba, 2,4-D, imidacloprid, bifenthrin, dithiopyr, glyphosate, mecoprop and permethrin, believed to be among the most widely used active ingredients in urban areas of Maine. Maine resident Jody Spear also wrote about this issue, urging collecting data on even more pesticides (including fungicides) and noting that if the board does not collect pesticide sales data, “it may be that others will find a way to do it for individual municipalities, just as ordinance processes are being undertaken by activists city by city throughout the state.”
Spear also forwarded an article about pesticide regulation, diversified farming systems and long-term monitoring policies that protect pollinators; and another noting that signs posted on two properties sprayed in her neighborhood had no product information, EPA registration number, reason for application, etc., and that Modern Pest Control refused to disclose that information when she called the company. Lay said the information is not required if the individual’s residence is more than 500 feet away.
In addition, Spear forwarded her Portland Press Herald editorial about the Portland pesticide ordinance.
MOFGA (via Heather Spalding) forwarded articles about the effects of pesticide industry funding on studies and publications by university faculty, about the toxicity of Roundup and glyphosate herbicides, about effects of pesticides on bees, about detections of neonicotinoid insecticides in U.S. waterways and drinking water, and about retail outlets that will no longer sell neonicotinoid insecticides. She also forwarded the Pesticide Primer written and updated annually by Sharon Tisher and posted on www.mofga.org.
Paul Schlein, a Maine resident and member of MOFGA’s Public Policy Committee, supported a $50,000 grant request from the Maine Forest Service for UMaine to research alternatives to control browntail moth. He also alerted the board to a United Nations report on the global use of pesticides and their effects and to a New York Times article about Monsanto and Roundup.
Wendell Caler of Caler Farms and Logging in Centerville wrote that he favored a statute of limitations on BPC enforcement actions.
Lynn Hower Allen of Rockland, Maine, and the Parkinson’s Support Group of Camden, Maine, requested that Maine follow the lead of the UK and the EU and ban the use of pesticides containing Paraquat, which has been associated with the incidence of Parkinson’s disease.
Gerry Blasé wrote about how Florida is dealing with using drones to apply pesticides.
Nancy Oden of Jonesboro wrote about concerns with using drones to apply pesticides and with authorizing the staff to approve repeat variance requests.
Timothy Mulherin wrote about the continuing lack of a BPC member with medical expertise.
Nancy Jezior opposed the BPC’s approval of three genetically engineered potatoes.
Scott Longfellow supported of LD 1505 (see below).
Spencer Aitel, a Maine organic farmer, wrote about Maine DOT subcontractors treating roadside rights of way adjacent to his Two Loons Farm. At the January 2018 BPC meeting, Aitel presented his case to the board and highlighted the challenges he faces when the DOT neglects it contractual obligations not to spray farms. This was the beginning of an important discussion to explore methods for the DOT to minimize its reliance on pesticides – possibly by taking a mowing approach instead of herbicide spraying. Stay tuned.
Nancy Caudle-Johnson wrote of her concerns about pesticide applications at a retirement community in Camden.
Claire Adams and others forwarded an article from the Lincoln County News about the value of the UMaine Cooperative Extension Master Gardener Volunteer Program.
Provision of Worker Protection Standard Handler and Worker Training by Licensed Agricultural Basic Pesticide Applicators
In June 2016, BPC staff submitted an equivalency request to EPA regarding certification requirements for trainers of handlers and workers as defined by the Worker Protection Standard. The request argued that agricultural basic applicators be allowed to give their workers/handlers WPS training, since Maine’s licensing and certification requirements for them exceed federal standards for certifying private applicators using restricted-use pesticides.
State-level Labeling Requirements for Minimum Risk (Section 25(b) of FIFRA) Pesticides
In 1996, EPA exempted minimum risk pesticides from federal regulation under section 25(b) of FIFRA. The Pesticide Control Act of 1975 has not been revised to reflect the new reality of minimum risk pesticides. Staff requested that the board provide definitive guidance on requiring the minimum protective language of “caution” and the Child Hazard Statement for all pesticide products registered in Maine, since EPA has no standards. The issue was tabled until the staff has more information.
Outreach to Homeowners
Efforts to reach homeowners in 2016 included holding meetings about browntail moth, updating websites, overhauling the YardScaping website content, an IPM presentation for the Rockport Conservation Committee and general public, a presentation at a land trust conference about herbicide use on land trusts (during which Patterson learned that most land trusts do not have a licensed applicator working with them), master gardener talks, and obsolete pesticide collection (at which staff talks about ways to properly use and reduce pesticide use).
LD 1505 sought to limit municipalities’ ability to regulate pesticides. The bill language mirrored a template designed by the American Legislative Exchange Council (ALEC), a national, industry-backed group organized to abolish regulations at the state level. The Joint Standing Committee on Agriculture, Conservation and Forestry (ACF) considered the bill, but many committee members expressed concerns about how it would impact municipalities’ longstanding policies that were geared to local population, ecology, industry, topography, etc. The ACF asked for input from the BPC. The board discussed such issues as potentially having 500 different ordinances, personal rights versus community rights, restricting homeowners’ rights on their own property, home rule, education about the BPC and pesticides, board support for municipalities, using Chapter 60 Designation of Critical Pesticide Control Areas, values, and education about IPM. The board drafted a proposed amendment to LD 1505, and the staff drafted a memo to the Committee on State and Local Government summarizing the board’s discussion and explaining that it had approved the proposed language by a vote of 4-2. The ACF Committee unanimously rejected the ALEC proposal.
LD 174 An Act To Limit the Use of Pesticides on School Grounds. This bill would require annual submittal to the BPC of all pest management activity in schools and posting of the information on the BPC website. Lay said staff would of course comply with Legislative instructions, but without additional resources, it could, at most, scan and post the information as received. The bill was carried over to the next legislative session.
LD 418 An Act To Educate the Public on the Proper Use of Pesticides and To Promote Integrated Pest Management Using Existing Resources – died in committee
LD 699 An Act To Enact the Toxic Chemicals in the Workplace Act – died between houses
LD 993 An Act To Protect Pollinators from Neonicotinoid Pesticides – voted “ought not to pass”
Public Law 2017 Chapter 59 An Act To Modify the Definition of “General Use Pesticide” (LD 594). This law changed the definition of “general use pesticide” to match the definition in BPC rule and thus to include 25b (minimum risk) products. This clarifies that individuals who use only 25b products need an Agricultural Basic or Private pesticide applicator license. The bill passed.