Maine Board of Pesticides Control: 2020 Recap

Spring 2021

By Heather Spalding

In 2020 the Maine Board of Pesticides (BPC) discussed pesticide residues in medical marijuana, treatment of browntail moth near marine waters, spray notification rules, and water quality monitoring during a pandemic, in addition to the board’s regular business pertaining to funding and finances, variances and special requests for pesticide uses, consent agreements 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 (see sidebar) makes policy decisions. This report, while not comprehensive in nature, covers all 2020 BPC meetings. Complete documents relating to BPC meetings are posted at maine.gov. MOFGA posts time-sensitive action alerts related to the BPC at mofga.org, in our weekly email bulletin (sign up on our website), and on our social media pages. The public can contact the BPC at 207-287-2731 or [email protected].

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

Pesticide Residues in Medical Marijuana

Board member John Jemison submitted a letter of concern regarding bifenthrin and imidacloprid pesticide residues on medical marijuana samples, grown without the use of these chemicals. Jemison noted that Maine has had an active medical marijuana program for 20 years and that growers supplying the market provide quality products. Tax revenue generated by medical marijuana is significant, closely following revenue generated by lobster and potatoes, and will increase with recreational use sales and the federal legalization of hemp (marijuana plants with less than 0.3% THC).

Jemison contacted an extension agent with expertise in compost management who explained that, since compost could be sold as a finished product within a month of initiating the composting process, imidacloprid could possibly be present in compost, but not bifenthrin.

Jemison asked if BPC staff ever test for the presence of 25B products (those not required to have an EPA registration number as they contain active and inert ingredients considered minimum risk under the Federal Insecticide Fungicide and Rodenticide Act). Jemison hoped there might be resources to test compost samples for any pesticides that could be absorbed by plants.

BPC director Megan Patterson acknowledged challenges exist for products approved for organic management that could be adulterated with prohibited substances. BPC counsel Mark Randlett said that it was complicated for BPC to test due to legality issues around federally banned substances. A public hearing would need to take place.

BPC staff reached out to the Office of Marijuana Policy (OMP) concerning pesticide testing. David Heidrich, the director of engagement and community outreach at the OMP, noted that testing for pesticide and fertilizer residues was mandatory and that the vast majority of these materials were prohibited for use on marijuana. However, the OMB was currently waiving testing requirements due to capacity issues (including not having enough licensed testing facilities). The OMP plans to prioritize increasing testing capacity before making testing mandatory. The issues could be remedied by the end of 2021.

Patterson clarified that while the board had authority regarding pesticide use for cannabis production, the USDA had authority over post-harvest residues. Testing would be required before product was sent to a manufacturer and then again each time the product was altered or moved from one licensee to another. Heidrich described a track-and-trace system that includes a certified identification tag, which accompanies each plant throughout its life cycle until harvest. The identification tag would then be included when a batch was submitted for testing. If a product failed testing, it could move to a manufacturer, but it would be destroyed if no method of remediation were available.

Jemison reiterated concerns about the possibility of systemic pesticide contamination through compost and asked if the OMP had suggestions. Board members and Heidrich agreed that it would be helpful to share information to see if pesticide contamination was a recurring problem. Jemison suggested that the board consider testing for pesticide residues in fertilizer for organic growers across the board (cannabis growers included). The board wanted more information before committing to a testing program. The creation of an advisory committee for OMP was discussed in order to better understand challenges, like the pesticide residues.

Spray Notification Rules

In January 2020 the BPC considered a request from Rep. Bill Pluecker to convene stakeholders to discuss strengths and weaknesses of the board’s current spray notification rules.

Pluecker said that malathion pesticide drifted from nearby conventional blueberry fields onto land that he was leasing for organic production, resulting in bee kill on the property. He reported it to the BPC and to MOFGA, who certifies his Hatchet Cove Farm in Warren. The BPC staff tested for residue, finding less than 1%. He said MOFGA also collected samples and found no residue, but that he would have lost organic certification for three years if they had detected certain levels. In reporting the drift, he said he was at risk of repercussions. He also stated that it was cumbersome to get on the notification registry because of the deadline and associated fee. Additionally, the final spray notification needed to come from the landowner – who might be disconnected from those doing the spraying.

Randlett said that any rule changes about notification would need legislative approval. Patricia Kontur, from the Maine Wild Blueberry Commission, suggested that more evidence of notification violations would be needed to justify a new rulemaking effort.

Heather Spalding, deputy director for MOFGA, asked if the notification systems developed by Paul Schlein in collaboration with Maine’s GIS office could be revived. Patterson said that existing documentation could potentially be utilized as a template.

At the February 2020 meeting, the BPC took up the discussion in a public information gathering session. Gary Fish provided historical context: The notification discussion started with a stakeholder process that resulted in a bill for the Legislature and prompted a competing bill that would mandate stricter notification standards. The committee on Agriculture, Conservation and Forestry (ACF) supported the stricter bill, resulting in the notification registry that required mapping and sign-up. The BPC staff began working on a GIS database and then the new notification law got repealed.

Pluecker recounted his experience of neighbors spraying malathion and asked if there could be a more comprehensive summary of the rule that was easier to understand. The confusion was, in part, prompting communities to ban pesticides and submit more bills to the Legislature, he said.

Spalding stated that the organization has been participating since the start of notification discussions. She emphasized the need for a simple and free way for all citizens and producers to request and receive notification.

A discussion ensued about how the Integrated Pest Management (IPM) Council could do more to inform people. Patterson noted that the volunteer council met twice a year, and Fish added that outreach would require human and financial resources. The BPC did not call for specific rulemaking, instead emphasizing public education and additional reporting on and investigation into violations.

At the June meeting, Patterson reported she had talked with Pluecker to consider approaches to notification without going through rulemaking, including providing an online sign up for non-agricultural registry and possibly removing the associated fee. She added that BPC staff could conduct more outreach for the public about the non-agricultural registry and self-initiated notification.

The board continued the discussion in July to figure out how to update the notification process to facilitate communication. Patterson reported that BPC staff had divided approaches for streamlining the notification process into two groups: approaches best addressed through policy and those that may be accomplished through staff efforts. Examples relevant to non-agricultural applications included: waiving the fee for the urban notification registry; making the inclusion of names for adjacent landowners optional; identifying addresses only (since owners can often change); producing doorhangers that could be used by applicators or those seeking notification, as well as postcards that could be mailed to facilitate notification; developing a notification form on the BPC website; sending email rather than a letter regarding notification; and developing notification-specific training for applicators. Patterson said that the door hangers and postcards could also apply to agricultural applications to help facilitate communication between farmers and their neighbors.

In September, Patterson presented a draft policy, reflecting changes from the discussion in July, as well as a proposal to make the registry enrollment fee optional. The board approved the proposed policy.

Local Pesticide Ordinances

The board received a flier about the pesticide ordinance adopted by the Town of Falmouth, which basically requires that anyone intending to do a pesticide application must first register with the town office.

Mosquito Monitoring

Department of Agriculture, Forestry and Conservation (DAFC) Integrated Pest Management (IPM) Specialist Kathy Murray reported that federal grant funding for Zika research had been exhausted and the BPC had been funding the department’s mosquito monitoring plan. The board approved a funding request in February for $6,501 for the IPM program to support ongoing efforts for mosquito surveillance and identification, refinement of a GIS-based mosquito habitat mapping system and continued outreach around vector-borne diseases.

In July, Sarah Robinson of the Maine Center for Disease Control and Prevention (Maine CDC) provided a report on annual funding for mosquito monitoring. The presence of mosquito-borne diseases and the species of vector mosquitoes present in Maine have been on the rise in recent years, and, since 2013, the Maine CDC and BPC have worked together to conduct surveillance for mosquito-borne diseases. Robinson reported that they had tested 1,500 pools in 2019, and two pools in York County tested positive for Eastern Equine Encephalitis (EEE). Robinson stated that funding would be used to get the mosquito insectary running, which was temporarily closed due to the COVID-19 pandemic, and conducting pesticide-resistance testing. The board approved a $50,000 grant to the Maine CDC.

Controlling Browntail Moth Near Marine Waters

In January 2020, pesticide toxicologist Pam Bryer presented changes to the list of products approved for control of browntail moth within 250 feet of marine waters, including the removal of imidacloprid, which is considered to be ineffective against the moth. The BPC unanimously approved amending the policy document with the list of active ingredients presented by Bryer.

Deven Morrill stated that Bryer did not look at biologicals, and Bryer reported that there was not as much data on biologicals but could complete a study by January of 2021.

She presented a 28-page report and draft policy for biological pesticides for treatment of browntail moth near marine waters in July. She noted that it was a continuation of the ongoing assessment of allowed active ingredients and that tree injections, which are a popular application method, were allowed. Bryer explained that the purpose of the risk assessment was to determine the concentration of active ingredients in the environment (resulting from legal use) and how that would affect the most sensitive aquatic organisms. Bryer assessed eight potential active ingredients for use. The following seven actives were proposed for inclusion in the revised policy: Bacillus thuringiensis subspecies kurstaki andaizawai; Beauveria bassiana; GS-omega/kappa-Hxtx-Hv1a; Lsaria fumosorosea; kaolin clay; and spinosad. Azadirachtin was not included due to its high acute toxicity to marine organisms.

Water Quality Monitoring

Patterson reported that the water quality monitoring program had begun sampling wells and was about a third of the way through when restrictions due to COVID-19 started. Prior to that, the initiative had been well received; people were typically willing to participate. The staff intended to continue the work in late 2020 and/or early 2021 depending on the pandemic.

Mary Tomlinson, pesticides registrar and water quality specialist, said that with COVID-19, staff had decided to resample wells that already had been sampled in 2020 and recontinue from there in 2021. This would provide an opportunity to compare wells over two consecutive years. The study’s objectives would remain but would also include sites associated with blueberry fields. Staff would ask residents to collect samples rather than entering the homes. Tomlinson added that there would be no increase in the cost for groundwater analysis, but they were anticipating an extra $20,000 for duplicate testing, bringing the total cost to approximately $114,210 for both projects. The board approved funding the sampling efforts as presented.

Pesticide Education, Certification and Licensing

Patterson reported that the staff would make an effort to highlight the importance of having non-certified applicators take pesticide safety training.

While the pandemic ensued, the BPC staff explored options for assuring that people attending trainings stayed alert and engaged. John Pietroski, BPC manager of pesticide programs, shared draft guidelines that could be used for verifying applicator participation for re-certification credits. Possibilities for helping ensure engagement in the trainings included: requiring pre-registration; utilizing polls and short quizzes; asking attendees to answer questions using the chat function; and visually monitoring attendees. Board member Clark Granger expressed concern that many rural Mainers do not have good internet access and may have issues connecting to Zoom. He offered an alternative approach of holding trainings outside in the summer. The board endorsed the use of the guidelines as a way to engage people without disqualifying anyone.

Pietroski reported that the BPC staff recently hosted an annual update and four recertification programs, awarding a total of 474 credits.

Pesticide Applicator Study Manuals

The BPC approved a funding request for $11,000 to support an AmeriCorps Steward from April 20, 2020, to October 2, 2020, to help update pesticide applicator exam study manuals and develop materials to promote IPM.

Pesticide Education Position

In June, Patterson provided an annual report on funding for the University of Maine Extension Manual Writer/Pesticide Safety Education Position (PSEP) for which BPC had approved funding for $65,000 in 2019. Kerry Bernard, manual writer/PSEP, planned to complete rewrites of the Commercial Structural and the Private Small Fruit manual in the coming year and had updated the University of Maine pesticide safety website to include safety information on respirators and disinfectant.

Pesticide Container Fee

A new pesticide container fee became law on January 1, 2020, but there was a delay in implementation and the Maine Revenue Service intended to update their website. Patterson noted that the board would work with the Maine Revenue Services to ensure that there is a monthly update of products registered in the state of Maine, along with appropriate guidance. Funding from the fee will go to the BPC, Maine Revenue Services, the University of Maine Cooperative Extension Diagnostic and Research Laboratory, the tick laboratory, and to pest management and pest research.

Training Migrant Workers

The board approved renewing financial support, in the amount of $5,360, for the Migrant and Seasonal Farmworker Safety Education program, which it has supported since 1995. In 2019, the Maine Mobile Health Program (MMHP) and Eastern Maine Development Corporation (EMDC) provided training to 315 migrant agricultural workers. The MMHP hires a seasonal bilingual employee to provide training to those throughout the state in English and Spanish. They also use interpretation services when necessary to provide training in additional languages.

Maine State Apiary Program

Maine’s State Apiarist, Jennifer Lund, received approval for $2,000 to attend the National Certified Investigator & Inspector Basic Training held in Raleigh, North Carolina, in March 2020. Lund’s responsibilities include working with beekeepers on hive management issues, mandatory registration, and inspecting incoming agricultural hives to ensure no diseases are brought into the state that could affect resident bee populations.

Variances and Registration Requests

The board rejected the following:

  • A request from a Harpswell oceanfront homeowner for variance from the 25-foot buffer requirement outlined in Standards for Water Quality Protection. The homeowner wanted to hire NaturaLawn in Topsham to apply the state-restricted pesticide trichlorfon (trade name Dylox) for the control of white grubs damaging turf within 25 feet of the mean highwater line.

The board approved the following:

  • A five-year extension of the 24(c) registration for methyl sulfanilylcarbamate (trade name Asulox Herbicide) for control of bracken fern in blueberries. The request was submitted by Lily Calderwood from the University of Maine Cooperative Extension.
  • The special local need 24(c) registration for metolachlor (trade name Dual Magnum) to kill yellow nutsedge and hairy galinsoga in vegetables. The renewal request was submitted, on behalf of approximately a dozen medium-sized mixed vegetable growers, by Mark Hutton from the University of Maine Cooperative Extension. The registration was extended to December 31, 2024.
  • The special local need 24(c) registration for the persistent herbicide aminopyralid (trade name Milestone Herbicide) for killing herbaceous broadleaf weeds and woody plants for forest site preparation. The request was submitted by Ron Lemin, pesticide dealer and forest management consultant. The board approved the request for two years, until the end of the 2022 growing season.
  • An extension of the special local need 24(c) registration for the use of halosulfuron-methyl (trade name Sandea Herbicide) to kill perennial broadleaf weeds in lowbush blueberries in the non-bearing year. Lily Calderwood from the University of Maine Cooperative Extension submitted the renewal request.

Additionally, special exemption requests were brought to the board in light of the COVID-19 pandemic. In August 2020, the board convened an emergency meeting to discuss a proposed limited duration exemption from commercial certification requirements for school custodial staff applying general use antimicrobial pesticides (disinfectants) with powered application equipment for cleaning schools during the pandemic. Such applications require a commercial applicator license under the current rule. In addition to numerous inquiries from concerned custodial staff about the use of powered application equipment, the facilities and transportation directors of over 40 schools had submitted a letter to the board requesting an exemption from the certification and licensing requirements.

Patterson explained that this type of application would require a commercial pesticide applicator license, as well as five days notification and posting. The IPM requirement would mean that school employees would have to monitor, identify a specific pest, and make record of it in the IPM logbook before any application could be made, but Patterson stated that this documentation seemed superfluous since the applications pertained to the pandemic and IPM measures include mask wearing, hand washing, social distancing, etc.

Patterson stated that staff would need to provide exams to issue approximately 500 commercial applicator licenses across all schools, which is not feasible as schools are already burdened by the pandemic. She added that school staff felt that powered application of disinfectants was a critical piece of keeping students and staff safe.

To provide certification training to school staff, Murray and board staff assembled a four-hour training that was conducted live and recorded August 13, 2020. The training covered topics relevant to efficacy and risk reduction including dwell time, application equipment, restricted entry intervals, the caustic nature of the pesticides and respiratory hazards. The exemption would not allow for application while people were present.

Patterson said that the department had tentatively agreed to support a request to the Governor’s office for an order to facilitate an immediate exemption. Randlett said the BPC’s ability to create an exemption for this seemed limited by statute to applications involving non-powered equipment. He said that the Governor’s order was the safest way to go and advised the board to approve the concepts of the requirements. The board authorized BPC staff to put forward a request to the Governor’s office for an emergency order to create an exemption for unlicensed school staff to use powered equipment.

Patterson stated that the exemption limited school employees to using products registered by both the EPA and Maine, and to those labeled for use with powered application equipment. When asked how long the duration of the exemption should be, Randlett recommended that the exemption end date should be made consistent with the Governor’s emergency order for COVID-19.

The board received additional exemption requests from businesses seeking inclusion in the exemption provided to K-12 schools in August. Inquiries had come from municipal offices, bus and ambulance services, universities, hospitals and medical facilities, and houses of worship wishing to use powered application equipment to apply disinfectants to protect against COVID-19. Board members agreed that expanding the order was appropriate given the circumstances but wanted to ensure that it included following the same protocols and training requirements. The BPC board agreed to submit a request to Governor Mills to extend the executive order for temporary suspension of licensure to businesses statewide.

Consent Agreements

The board approved the following consent agreements and fines:

  • TriEst Ag Group of Greenville, North Carolina – conducted and supervised fumigation applications using the restricted pesticide chloropicrin, commonly known as Strike 85CP. In one instance, drift traveled off-site and into the open windows of a residence adversely affecting the family inside. ($16,500)
  • TruGreen Lawncare of Westbrook – conducted unauthorized herbicide applications; performed applications in excessive winds; and failed to post applications, report applications performed on incorrect properties, and provide required notifications. ($21,500; $5000 suspended with the requirement that TruGreen train current and all new employees about these violations up until the 2020 season)
  • Bath Housing Authority of Bath, Maine – performed an unlicensed application of bromacil herbicide (trade name Enforcer Formula 777 E.C. Weed Killer) in the walkways of a housing complex, failed to post, and applied pesticide in a manner inconsistent with the product labeling. ($1,000)
  • Hughes Inc., of Freeport ­– applied Acephate 97UP (an organophosphate insecticide) for control of browntail moth on a property without prior authorization from the property owner, manager or legal occupant of that property. ($600)
  • The Turf Doctor Inc., of Augusta – failed to notify an individual on the Maine Pesticide Notification Registry of an application of bifenthrin insecticide/termiticide (trade name Quali-Pro Bifenthrin I/T 7.9 F) to their Augusta property, and made an outdoor terrestrial broadcast application of fertilizer too close to a body of water. ($750)
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