Maine Organic Farmers and Gardeners Association
Maine Board of Pesticide Control – Fall 1997

Maine BPC Reports \ BPC – Fall 1997

BPC Renews Emergency Exemption for Strawberry Herbicide
Is NewLeaf Potato a Pesticide? BPC Wants to Know

BPC Renews Emergency Exemption for Strawberry Herbicide

The debate over when an unregistered herbicide can be approved for “emergency” control of weeds erupted once again at the Board of Pesticides Control (BPC) meeting on May 23, 1997, in Bangor. Maine Cooperative Extension strawberry specialist David Handley submitted an application to the Board for an emergency exemption under Section 18 of FIFRA (the federal pesticides regulation act) for approval of oxyfluorfen (Goal) for use on strawberries. Oxyfluorfen is not yet registered for this use, and the EPA is still developing data on a tolerance (legally acceptable level of residue) for this product on strawberries. It is registered and used in Maine on other crops, including cabbage, cauliflower, broccoli, onions and grapes. Noting that the Board had granted a similar emergency request last year, Board member Carol Eckert questioned the “emergency” status of the request, commenting that “it seems like it’s a pretty routine problem.” Wesley Smith, Pesticides Registrar, responded, “It’s routine in the sense that [these applications] will continue until they get a chemical registered for the problem.” Handley explained that while progress is being made in registering oxyfluorfen for strawberries, because they are considered a “minor crop,” the pesticide manufacturer is reluctant to fund the research to get the product registered.

Handley’s application noted that strawberries can be a “high profit crop with a quick return on investment,” but that optimum economic return depends on a five year rotation. The increasing prevalence of field pansy and wood sorrel in the strawberry beds has compelled farmers to plow under the bed in the fourth year. Handley estimated that annual losses in productivity due to weeds plus loss of the fifth year of the rotation amounted to total economic losses in Maine strawberry production since 1992 of $487,900 per year. The Section 18 application requires alternative control practices to be considered; Handley’s application noted that mechanical cultivation can only effectively control weeds between rows. In the rows, hand weeding is “effective but cost prohibitive for most growers. Not practical on a large scale due to costs and supply of labor.” Unlike the analysis of the economic advantages of herbicide use, however, no analysis was provided on the economics of hand labor. Handley noted at the meeting that he “could sympathize with you in not seeing weeds as an emergency; it’s hard to believe a weed can sneak up on you. But the fact of the matter is that for crop losses in strawberries, weeds are the number one pest for us.”

Public Board representative Jo D. Saffeir inquired whether Handley was concerned about applying a pesticide for which no tolerance had been set, to a crop where – in many pick your own operations – “kids are in the beds eating them.” Handley responded, “What makes me comfortable is the time of application.” Oxyfluorfen is applied in the fall, when no fruit is exposed and the exposed leaves aren’t going to be growing in the spring. Preliminary residue research by the New Jersey Agricultural Experiment Station suggests that no detectable residue exists on the fruit. The emergency application was granted, with Jo D. Saffeir opposed.

Public Hearing on Proposed Pesticide Notification Rules

The BPC has finalized proposed pesticide notification registry rules and held public hearings on them in June. The key features of this proposed registry are:

• registry is open to everyone, not just those with documented chemical sensitivity.

• you can register for one or more residential properties, for example, your principal residence and a camp. Workplace registrations will not be accepted.

• you can be registered for an initial $10 fee per property, renewable annually for $5.

• when you register, you will be required to list the name and address of all property owners who under the regs would have a notification obligation (see below).

• once you are registered, you are entitled to notification at least 6 and not more than 96 hours in advance of each outdoor pesticide application made to a property that is within 50 feet of your property boundary, if that application is within 500 feet of your boundary. (In other words, a property that is 51 feet from your property line would be exempt from any notification requirement; also exempt would be a pesticide application by an adjoining property owner if that application is more than 500 ft. from your property line.)

• for licensed commercial applicators, the obligation to notify you arises automatically; they must consult the registry before they apply pesticides.

• for licensed private applicators and individual home and other property owners, their obligation to notify you arises only after you provide them with a letter, drafted by the BPC, that explains the registry to them and advises them that you are on it. You have the burden of proving that they received that letter.

• notification must be made by telephone or personal contact, unless at least two attempts at this fail, in which event a notice can be “securely affixed” to your door. • notification must advise you of the brand name and EPA number of the pesticide product used, the location of application and the approximate starting time (within 24 hrs) of application, and the name and telephone number of the person to whom further inquiries may be made. The applicator must make “reasonable efforts” to comply with your requests for additional information about the pesticide being applied. You may ask, for example, for the pesticide product label or the Material Safety Data Sheet.

The limitation to properties within 50 feet of a registrant’s property line came in response to staff analysis of the impact of the original draft regulations in an urban or dense suburban environment. Staff member Tammy Gould used a tax map for a neighborhood in Waterville to determine that if notification were required for all properties within 500 feet of a registrant, as originally proposed, a total of 91 properties might be affected by registration of a single lot. Some affected properties were more than two blocks away. Gould also reported that the only state that has a registry based on a grid notification system, Wisconsin, is revising it to limit notification to adjoining or adjacent properties. The 50 foot standard proposed by the Board would have the advantage of including some properties that are very close but not technically adjoining or adjacent.

All of these proposed provisions are subject to revision following the public hearings. At the hearings in June, opponents outnumbered proponents by two to one. Bruce Roope, of the Maine Potato Board, argued that the rules were unnecessary and “opens up a can of worms.

“People know, when a potato field goes into production in the springtime, that weekly spraying is going to go on... If they don’t, they come and see us,” he said. “I have people coming into the yard all the time looking for stuff for their gardens. I really don’t see any need for a registry.” Vernon ^DteLong, of the Agricultural Bargaining Council, argued that the requirement of notification between 6 and 96 hours in advance of the particular product to be applied was unworkable, because, “I am not always sure what product I am going to use. It depends on what happens... I may change it half-way through my spray schedule, depending on what I observe as I do it.”

Private Applicator License Proposed for Increase

The process of setting the fee for the pesticide notification registry led the Board to realize that the fee was substantially more than the $6 for a three-year license currently charged of private applicators. An analysis by staff member Gary Fish, submitted to the Board on May 14, revealed that the Board’s actual costs in operating the private applicator licensing program were $39 per license per year. New Hampshire and Massachusetts charge, respectively, $20 and $25 per year for private applicator licenses. Vermont, however, assesses no fees for licenses. The Board decided at its May 23 meeting to propose an increased fee of $21 for a three-year license.

– Sharon Tisher


Is NewLeaf Potato a Pesticide? BPC Wants to Know

At its June 27 meeting, the Board of Pesticides Control held its second public hearing on proposed Chapter 28 – Pesticide Notification for Outdoor Pesticide Application, and held an extended discussion with representatives of Monsanto’s Naturemark division about problems the Board encountered with sales to home gardeners of the genetically engineered NewLeaf potato.

Pesticide Notification Registry

For most of this year the Board has been grappling with issues surrounding outdoor pesticide applications. This chapter is intended to deal with commercial applicators, such as lawn care and pest control companies, as well as applications by homeowners and gardeners. It doesn’t affect the existing notification system for agricultural uses. The goal of the Board has been to provide a system where those people can receive advance notice of pesticide applications on their neighbors’ properties if the application is within 500 feet of the residence. To be placed on the registry will require payment of a fee to the Board of Pesticides Control. The registry will be distributed each year to all commercial applicators, who would then be responsible for providing notification from 6 to 96 hours in advance of the application.

The hearing focused on three major issues. How big an area should be included for notification purposes? What types of applications should be included or exempted? How will the notification system work, in practical terms?

Richard Sampson of Lewiston has been struggling with the problems of a chemically sensitive family member. To him, the issue isn’t whether the property being sprayed abuts his line or not, but how close the property is. He argued strongly for a 250 foot notification zone with 24 hours of notice. He’s already had problems this year that he attributes to an application at the second house from his. With notification, he believes he could have prevented the problems. “Our only request is for notification,” he said. “Lawn care is cosmetic; people don’t die from a dandelion on the lawn.”

Russell Libby, representing MOFGA, agreed with Sampson’s concerns about drift from non-adjacent neighbors and suggested that at least the second adjacent property within 250 feet be included in the notification list.

Applicators generally supported the idea of notification, but were concerned about the distance involved. Several suggested that 500 feet was overkill (no pun intended).

The second issue concerned the proposal for telephone or direct contact, notification. Since many companies making applications cover large areas, they’re worried that they might have to make two trips – one to provide notification, the second to do the actual applications. This becomes particularly difficult when a homeowner requests “immediate” action for wasps, yellowjackets or carpenter ants. The applicators generally argued for an option of mailing a notice when they couldn’t reach someone by telephone or personal contact.

Regarding which applications should be covered by the rule, the Board had exempted pet care, swimming pools, paints and stains, insect repellents, bait, and utility work in the proposed rules. Applicators suggested further exemptions: injections into trees; injections into walls; insecticidal traps (baits); herbicides applied to cut stump surfaces; and tree growth regulators, whether injected into the tree or soil. The Board seemed sympathetic to some of these issues, since drift onto adjoining properties, especially a distance away, seemed unlikely.

Regarding eligibility for the registry, one applicator feared droves of people signing applications at malls if there were no fee, making the notification system so burdensome that it would be unworkable. Another called for a medical diagnosis before anyone was eligible. Most of the applicators had no problem with the “chemically sensitive” being eligible but questioned who those people might be. Russell Libby argued that the registry should be open and no fee should be required, since people should have a basic right not to be exposed to pesticides unwillingly. The Board seems inclined to charge a fee to cover the costs of administering the program, but not to impose eligibility conditions.

Sales of NewLeaf Potatoes to Home Gardeners

Jennifer Feldman of NatureMark was asked to come before the Board after it discovered in May that bags of genetically engineered NewLeaf potatoes were being sold to home gardeners through Agway stores and mail-order catalogs. Tom Saviello, chair of the Board, expressed concerns that these sales put the potatoes into an uncontrolled situation, particularly when at least one store sold the potatoes without the accompanying information on the importance of refuges to prevent rapid development of resistance.

NatureMark sees no scientific reason for concern about buildup of resistance. Its scientists feel that other potato varieties, tomatoes, and other Solanaceae crops provide opportunities for Colorado Potato Beetle populations to remain established and help provide non-resistant genes to the local pool. The lack of labeling was a mistake, and NatureMark has put systems in place to prevent that from happening again.

The Board and its attorney, Tom Harnett, wondered whether these potatoes should in fact be labeled as a pesticide, because they have pesticidal properties (they kill potato beetles because the gene for the B.t, Bacillus thuringiensis toxin, has been inserted into the plant). The Board still has not received clarification from EPA on this issue; NatureMark doesn’t see this as a product requiring a label. Their company’s contracts with growers do require certain actions that seem “like” a label requirement. The Board is likely to visit this issue again as it reviews the continuing plan for resistance management advanced by NatureMark.

Other Issues

In other action, the Board: approved a shortened preharvest interval for a tin-based material used to control late blight; turned down a request for use of Primicarb as an aphid control, since the expected emergency causing the request (loss of Monitor, a widely used fungicide) won’t take place during this growing season; and announced that it has received an application to register a genetically engineered Bt-corn for next growing season. The Board is also deciding how to implement the new Act to Minimize Reliance on Pesticides, since no new funds were appropriated. It is considering the use of temporary help to compile the data for the report required in the Legislation.

– Russell Libby