Maine Organic Farmers and Gardeners Association
Maine Board of Pesticides Control – Fall 1998

Maine BPC Reports \ BPC – Fall 1998

BPC Approves Weak Notification Registry

At its June 3 meeting, Maine’s Board of Pesticides Control (BPC) considered observations of the BPC staff regarding public comment on its proposed pesticide notification registry. The staff noted the following:

• The first public hearing was held in June 1997 and a return to the previous proposal as some suggested would again be deemed a substantive change requiring still another opportunity for additional public input. It would seem that some compromises should be made to adopt a rule, or the Board should scrap the idea of a registry altogether;

• This is a notification rule to help the majority of the public take precautions to minimize exposure to pesticide applications. It cannot meet all of the needs of those who are sensitive to pesticides;

• As a notification rule, it is designed to alert persons to the presence of pesticides in their vicinity. Demand for notice reflects public interest in pesticide odors, drift, groundwater concerns and general information about pesticides. Regardless of pesticide formulation or method of application, these concerns remain. Therefore, the staff did not recommend exclusion of nonpowered or granular applications from these notice requirements;

• Several people opposed the exemptions from the registry for agriculture, right-of-way and structural pest control around foundations. However, agriculture was initially included in the first round but dropped when the Board agreed that everyone should recognize crop land as a potential pesticide application site. In addition, most right-of-way applications are already conducted with several safeguards that include public newspaper notices, self-imposed buffers around homes and other sensitive areas, and the option for citizens or a municipality to enter into no-spray agreements. However, the staff found no logic for the exemption for 8-foot perimeter treatments around buildings.

• To achieve closure on this rule, the following may be necessary:

1. Return to the original fees of $10 for initial entry and $5 for annual renewals;

2. Eliminate the exemption for structural perimeter treatments;

3. As a compromise, include a two-year sunset provision to allay concerns of applicators over the potential misuse of the registry.

In discussing these issues at the meeting, staff member Henry Jennings pointed out that “it’s not agriculture where most of these [notification issues] arise... Regarding the 8-foot [exemption for structural pest control], a lot of what happens is diazinon. Most of the sensitive people we deal with are concerned with odors. This 8-foot exemption would be fine if we all lived in the country. I would rather see no registry than one with an 8-foot exemption. [That’s] selling false assurance. Most of the people we deal with [regarding notification] are living in residential areas. They’d be better with the current system than one that exempts 8 feet. No rule is better than a bad rule.” As an example of the absurdity of this exemption, he said that allowing the exemption would mean that an abutting homeowner using a hand-held spray to treat an insect infestation – such as a wasp nest – would have to notify his neighbor, but if a commercial applicator applies pesticides 60 feet up the same building and 8 feet out from it, no notification would be needed. Board member Richard Storch said that he was concerned about completely eliminating the 8-foot exemption and asked if a compromise of 5-feet would be acceptable. The Board ended up accepting this “compromise,” despite Jennings’ logic.

The Board engaged in yet another lengthy discussion of the fee for being on the registry, with member Tom Saviello suggesting the highest rate: “I don’t think $35 [per year] is much.” Member Jeff Smith thought a fee of $10 for chemically sensitive people who had a note from their doctors and $20 for others was reasonable. Debating commenters’ suggestions that applicators or pesticide dealers should pay for the registry, Smith said that the “cost should be borne by those requesting the service. We have put in place in Maine and in the United States tremendous, burdensome, expensive bureaucracies that supposedly protect the public health. We’ve already paid for this – applicators shouldn’t have to pay again.” Storch agreed with Smith’s proposed fee structure, but physician Board member Carol Eckert pointed out, again, that “this is not a scientific enough area to get a letter [from a doctor] with a consistent meaning” and that “both types of people have a right to be on this” registry. Staff toxicologist Lebelle Hicks said that a fee of $10 “won’t cover the cost by any stretch of the imagination,” but to those who feared large numbers of people signing up, she pointed out that in other states, the cost per person went down as more people joined the registry. In the end, the Board decided on a one-tier fee of $20 per year.

The staff was instructed to write a basis statement incorporating its recommendations, the $20 fee, and the exemption for 5-foot perimeter structural treatments. The proposed two-year sunset provision would determine primarily whether the fees were meeting costs or should be adjusted up or down.

At its July 17 meeting, the Board adopted the rule, with the additional inclusion that it apply to properties that are 250 feet from the pesticide application site. The BPC staff was still unhappy with the double standard created by the 5-foot exemption for commercial pesticide applications, but the Board did not want to go to another public hearing on the issue, so decided that the issue could be considered again in two years, when the rule comes up for review.

Annual Velpar Applications Approved

The Board addressed Dupont’s request for Special Local Needs (24c) Registrations to allow applications of the herbicide hexazinone in the fruiting year of blueberries. This request was supported by Blueberry Crop Specialist David Yarborough, who pointed out that annual applications will result in reduced rates of application each year, which should reduce the leaching potential as well as improve weed control. The application rate over two years could not exceed what would have gone on the fields in two years with the previous registration.

Dupont also requested that the preharvest interval for the herbicide be reduced from 450 to 45 days. The BPC staff reviewed the residue data and determined that no increases in residues in the fruit will result. When Board member Jo D. Saffeir asked Yarborough how the postharvest interval had previously been set at 450 days, he explained that it was based on his original calculation of the time difference between when the material was applied and when the berries were harvested. The change to annual applications, he explained, should reduce application rates because it would permit the material to be applied later in the spring, when rainfall and leaching should be lower and when more will get on the weeds and thus be more effective. When Saffeir asked how much less herbicide might be used, Yarborough said that it “depends on how many growers use the method. I can’t predict people’s behaviors.” Saffeir also asked how residue trials had been conducted, and Yarborough responded that they were based on a replicated trial but on data from just one year. “All of the samples were nondetects,” he said. Eckert expressed her concerns about leaching potential and residue effects, too, and the Board ended up approving the 24c registration requests with the amendment that data from sites with split applications be reviewed in four years.

Protecting Waters from Pesticide Spills

At the March meeting, the Board heard a request from the Maine Department of Environmental Protection (DEP) to consider rulemaking to address problems of pesticide spills resulting in fish kills in public bodies of water. The DEP proposed that a 50-foot horizontal setback from the high water mark be established for all pesticide mixing and loading sites and that the Board require that all pesticide containers be properly secured on vehicles during transportation. The BPC considered the request and directed its staff to work with the DEP staff to reach consensus on language to protect the environment while not adversely impacting pesticide applicators.

At the June meeting, grower Vernon DeLong questioned what was considered a “spill” in the language of the proposed rule. “If a grower removes a spray nozzle to clean it and some comes out – is that considered a spill?” The staff said that that would be considered a “drip” but that a grower should be able to catch even drips in buckets when cleaning equipment. DeLong said they would have to keep 24 buckets with them, then, since all of the nozzles will drip when equipment is cleaned. Staff director Bob Batteese said that the staff would rewrite the proposed rule to clarify the language.

Forestry Pesticide Dealer Noncompliant

The Board considered the case of Timberland Enterprises of Bangor, which has, since 1995, operated a pesticide distribution facility catering to the “forest vegetation management business.” The business has operated as a Minor Pesticide Storage Facility: while its storage during peak periods exceeded the thresholds for a major facility, it was able to avoid complying with the Major Pesticide Storage Facility requirements by storing pesticides for fewer than 60 days.

During 1997, Timberland stored numerous 30-gallon drums that reportedly had already been sold, thinking that the product that had been sold did not count toward amounts in storage. The BPC compliance staff discussed this misinterpretation with Timberland as well as its plans for developing a Major Pesticide Storage facility or leasing space at another facility. In 1998, an inspector found approximately 1300 gallons of pesticides in storage at Timberland, including 34 full 30-gallon drums and six partially full 30-gallon drums. The BPC staff determined that Timberland Enterprises stored pesticides for greater than 60 days in a calendar year and exceeded the one-time thresholds for gallons and drum size, and it recommended that the Board authorize it to negotiate a consent agreement with Timberlands.

At the Board’s June meeting, Henry Jennings explained that this startup distributor has plans for updating its facility and hopes to begin construction this year. He said that he believes that Ronald Lemin of Timberland “has acted in good faith but has been hindered by the complexity of the requirements and … because the parent company probably has some reservations about spending that amount of money when they don’t know where the business is going.”

Saviello suggested negotiating a consent agreement with the parent company, since it was so slow in responding to Lemin’s needs. Saffeir agreed “in general” but said that she was “frustrated” because even though one letter was sent to Lemin in 1997, “he still accepted product to store” in violation of Chapter 24 later. The Board approved a motion to negotiate a consent agreement with Timberland.

DOT’s Problem Crew

In the recent past, the Board authorized the BPC staff to issue permits to the Maine Department of Transportation for variances for its highway vegetation control program. Because the DOT had two violations in 1997, however, the 1998 variance request was reviewed at the June meeting. One of those violations occurred near a house, the other near a brook.

At the meeting, a representative from the DOT asked that people who make misapplications have their applicator licenses pulled by the Board. Board member Andy Storch told the representative that he was “surprised that you don’t have more control over the people working for you,” adding that “the DOT has done a good job over the years. They have one crew over there that’s causing problems.”

Saffeir also expressed her concern that “the DOT is not wanting to take responsibility in dealing with that crew.” The DOT representative disagreed, saying, “No, we just want one more management tool – being able to pull their license.”

Eckert suggested that “you could have a policy that if the same crew had two violations, we could suspend its license.” Staff member Paul Gregory asked, “How many applicator licenses has this Board revoked in the last 10 years? None.”

The Board eventually granted the variance, although Saffeir said that she was “still frustrated. I don’t think the DOT managers are dealing with their employees.”

Third Annual Emergency Registration

For the third year in a row, the Board was requested to petition the EPA for a specific exemption for Goal 2XL and Goal 1.6 E to control field pansy and wood sorrel in strawberry fields. The request was supported by the University of Maine Small Fruit and Vegetable Specialist, Dave Handley. Apparently Canadian straw contaminated with weed seeds was the source of this weed problem.

The request was approved, but with Jo D. Saffeir suggesting that Cooperative Extension should get involved so that the weed problem doesn’t spread. Saffeir and Eckert both brought up the fact that these weeds are controlled well by organic growers who rotate their crops frequently.

Brown Tail Moth Creating More Problems

Richard Bradbury of the Maine Forest Service provided an update on the 1998 program to control the Brown Tail Moth on several islands and in a few towns in the Casco Bay area. This year six times more area was treated than last year – e.g., 31 acres (1600 residents), and the moth has moved north as far as Wiscasset and Boothbay. The pesticide used, tebufenozide (Confirm 2F), is very effective, but its effect on lobsters remains unknown. The $15,000 to $20,000 needed to study this problem is not available, and even if the study were conducted, results wouldn’t be available for three years. Some lobsters are being kept in cages near application sites to look for potential problems, and the BPC staff toxicologist, Lebelle Hicks, will continue to meet with the Dept. of Marine Resources to follow this issue. Unfortunately, information about the effectiveness of various preparations of Bacillus thuringiensis on the moth was unavailable, since the expert in this area, Norman Dubois, had died.

Bradbury said that a few people had complained to him informally about the spray program, but none made a formal complaint. F. Marina Schauffler of Falmouth, however, did write a letter to the Board asking for better notification before sprays were made, and better timing of sprays, noting that schoolchildren were exposed while waiting for buses and that people walking or traveling to work were exposed, since spraying occurred at prime commuting time.

Schauffler told The MOF&G after the meeting that she found the Board’s treatment of the issue “pretty perfunctory;” that Saffeir was the only member asking questions. When Saffeir asked Bradbury about timing of the sprays, he said he didn’t think that the timing needed to be better, according to Schauffler. He did talk with Schauffler in the hallway later and agreed that a telephone notification system might work for residents.

Schauffler said that she was “taken aback” when the Board moved on to the next topic, since, when Saviello asked if anyone had further questions, she thought that his request was directed at the Board and that he never made a point of asking if members of the public wanted to comment. She did say that Saffeir was very helpful to her, calling her the night before the meeting to make sure she knew when and where the meeting was, and reading parts of Bradbury’s report to her.

Paul Gregory, Public Information Officer on the BPC staff, said after the meeting that the staff was surprised at the lack of public comment on the issue, too, and realized that such comment may not have been properly invited. The staff discussed ways to involve the public more.

Resident’s Request for Pesticide-Free Area Tabled

The Board received a petition from the Disability Rights Center of Augusta for a critical pesticide control area designation for Mary Ellen Valentine of 19 Morrill Avenue in Gorham. The request sought to create a pesticide-free zone that would be 500 yards in radius around the perimeter of her property, which would prevent the use of any pesticides on eight neighboring properties. Under the provisions of Chapter 60, the petitioner must specify the reasons for seeking the designation. In this case, Valentine said it was to protect her health and life as well as to protect birds and pets in the neighborhood.

The Board said that health effects on birds would be difficult to prove, and that Valentine’s application was incomplete because it did not show that her maladies were caused by pesticides being used near her home. Her lawyer was told how to document her health effects in order to make a stronger argument of her need for a pesticide-free zone.

Concerns About Mosquito Spraying

A Freeport citizen wrote a letter to the Board complaining about airblasting of her neighbor’s land for mosquito control. The product used was Marlate (malathion). Unfortunately, the BPC staff received the letter too long after the incident. “If a person complains formally about drift, we send an inspector,” said Gregory after the meeting. “If we get a letter two weeks after [the application], we’re powerless.” BPC director Bob Batteese did write a letter to the citizen telling how the notification provision of Chapter 22 works.

The next meeting will be on Friday, Sept. 11, in Bangor.

– Jean English