Maine Organic Farmers and Gardeners Association
Maine BPC Reports – 2003

Maine BPC Reports \ BPC – 2003

Pesticide Industry Fights Aquatic Herbicide Rule

In May 2003, in response to a request from the Maine Department of Environmental Protection (DEP) and the urging of environmentalists, the Maine Board of Pesticides Control (BPC) adopted a rule restricting the use of aquatic pesticides to individuals having a private or commercial pesticide applicator’s license. Although DEP regulations require a permit for any homeowner to treat a pond or lake with aquatic pesticides, many instances of sales off the Internet to Maine homeowners without DEP permits had been discovered. The DEP reasoned that restricting these pesticides at the point of sale to licensed applicators was an important additional check on their use, to prevent harm to wildlife and drinking water sources from inappropriate use. The BPC ultimately agreed. The pesticides industry, however, has mounted an assault on the new rule; the outcome was likely be determined at a November 21, 2003, public hearing and at subsequent board deliberations.

On July 1, 2003, the industry group Responsible Industry for a Sound Environment (RISE) wrote a letter requesting that the BPC rescind the new rule. The group stated that it represents over 170 pesticide producers and suppliers who provide over 90% of the domestically produced aquatic pesticides used in the United States. The organization objected to “the Board’s action making all aquatic herbicides restricted use without consideration of the aquatic herbicides’ toxicity and potential to cause unreasonable adverse effects on the environment, as well as the onerous impact this action will likely have for non-aquatic uses of many of these products.” The rule, RISE complained, encompassed sewer root control products that would be flushed down drains but not applied directly to water bodies, as well as 2,4-D, which is primarily a terrestrial herbicide. Noting that the same arguments were submitted during the rulemaking process, the board agreed at its July 18 meeting to take no action, except to exempt sewer root control products from the rule.

On September 26, 2003, the BPC received a “citizen” petition with signatures of 159 registered voters from the towns of Corinna, Newport and Pittsfield, submitted by Robert J. Tardy, a lobbyist hired by RISE, and evidently gathered by Tardy’s daughter, Jessica Tardy. The petition sought repeal of the aquatic pesticides rule. Under the Administrative Procedure Act, the board is now required to hold a public hearing on the proposed rule change.

At the same time, the board will consider fine tuning the rule as recommended by BPC staff: using a BPC list of aquatic pesticides registered in Maine, instead of the EPA list referenced in the current regulation, which has proved to be outdated. The hearing on RISE’s petition was to be held on November 21, 2003, at the Senator Inn and Spa in Augusta at 9:30 a.m. Interested persons can also submit written comments to the BPC until December 5, 2003.

Consensus Rulemaking Meets Hostility

Following its October 15, 2003, regular meeting, the BPC held an evening informational meeting at Gorham High School to discuss with neighbors the petition of Gorham resident Mary Ellen Valentine for a Critical Pesticide Control Area around her home. The board had previously resolved to follow a “consensus rulemaking” procedure to address the petition. This process, similar to the one that led to the pesticides in school IPM and notification rule, would use a committee of representatives of Valentine, the neighbors, environmental groups or applicators to develop agreement about the scope of a proposed rule. The rule would then be considered at a public hearing and acted on by the board. The October 15 meeting was not attended by Valentine, but did draw about 40 angry neighbors, distressed by the letter they received from the board suggesting that “If the Board adopted the rule as petitioned, it would prevent you and 33 other affected property owners from using many common products such as bleaches, toilet bowl cleaners, swimming pool chemicals, insect repellants, pet collars, paints, wood preservatives and other home, lawn and garden pesticides … ”

Valentine’s attorney, Jennifer Davis of the Disability Rights Center in Augusta, wrote a letter to the board protesting the contents of the letter to neighbors. Davis argued that the letter made Valentine “an easy target in her neighborhood for hostility and discrimination, “ both because it unnecessarily “highlight[ed] Ms. Valentine’s disability in such detail,” and because it inaccurately represented that Valentine sought to prevent people from using bleaches, toilet bowl cleaners, insect repellants and pet collars. “As we have stated on several occasions, my client has no intention of limiting the use of these products.” Although many of the neighbors appeared both upset about a proposed Critical Pesticide Control Area and hostile to the concept of a consensus rulemaking process, the board has received several requests to participate in the process and is proceeding with organizing the rulemaking group. The process is expected to take several months.

– Sharon Tisher