Maine Organic Farmers and Gardeners Association
Maine BPC – March, April 2004

Maine BPC Reports \ BPC – March 2004

At its March and April meetings, the Maine Board of Pesticides Control (BPC) addressed pesticides for controlling mites in bees; a requested variance for applications of herbicides to railroad rights-of-way; standards for pesticide applications indoors; and more.

Board Responds to Federal Funding Cuts

Barbara Ginley, executive director of the Training and Development Corporation (TDC), presented a grant request for the Migrant and Seasonal Farmworker Program at the March 19 meeting of the Maine Board of Pesticides Control (BPC). The board historically has helped fund pesticide safety training for migrant workers in Maine. Most of these laborers work in blueberry fields, but an increasing number work on broccoli farms in Aroostook County. Until this year, TDC used AmeriCorps workers to provide the safety training (two seasonal and one year-round), but President Bush’s funding cuts to the AmeriCorps program deleted this option.

The Maine Migrant Labor Program, which has collaborated with past TDC trainers and links migrant workers to medical care related to their occupational hazards, has agreed to pay for the board, supplies, travel costs and supervision of one bilingual pesticide safety trainer, but TDC requested a grant to pay for the trainer’s salary and benefits for the season. While bilingual trainers are sometimes difficult to find, Ginley says they are much more effective because they can answer questions that migrant workers might have about the training videos and demonstrations. The board unanimously approved the grant.

Beekeeping Pesticides Approved

The board approved the Section 18 emergency registration renewals of two pesticides used in the beekeeping industry. Anthony Jadczak, the state apiarist, told the board about the importance of the beekeeping industry to Maine agriculture, noting that many Maine crops, including blueberries and cranberries, require bees for pollination and good production. However, beekeepers face many challenges in maintaining healthy hives. Some, such as bee death from exposure to agricultural chemicals, are mostly out of the beekeeper’s control; others, such as parasite infestations in hives, are manageable if the beekeeper has access to the proper defenses.

Unfortunately, hive pests, like many other agricultural pests, have developed resistance to formerly successful treatments. Apiarists began using Fluvalinate to control Varroa mites in 1987, but in only 10 years many populations of mites resisted this treatment. Jadczak requested an emergency registration renewal of two treatments for Varroa mites, coumaphos (commercially produced as CheckMite+) and thymol (Api Life Var); he also requested that coumaphos be approved for use against small hive beetles, which have extended their range into the state. He recommended both treatments as part of a rotation scheme to prevent resistance to the harsher chemicals, noting that thymol and coumaphos are “not as effective as the ‘hard stuff’ — when the hard stuff works.” Thymol carries a “danger” label, while coumaphos carries a “warning” label; neither is approved for use in organic production.

Debate Continues on Railroad Right-of-Way Herbicides

The battle continued between board members and a committee of railroad representatives over the issue of a variance for herbicide applications along railroad rights-of-way. Plans for herbicide applications along highway and utility rights-of-way must include a 50-foot buffer zone on either side and mapping of sensitive areas, such as wetlands and homes. The railroad companies operating in Maine traditionally have received a variance from this rule that exempts them from mapping sensitive areas and permits a much narrower buffer zone of 10 feet.

In the fall of 2002, the board decided to investigate the environmental impact of this variance and organized a committee of industry representatives to establish and fund an effective monitoring system. This committee reached a general consensus that the monitoring was unnecessary and the requirement to fund it unjust, and since then the board and the railway committee have been at an impasse.

At the September 2003 meeting, the board had demanded that the committee formulate a final monitoring plan in time for review at the March 2004 meeting, but instead the committee reiterated its opposition to the monitoring requirement and demanded that the customary variance be granted. Robert Moosmann, director of the committee and senior landscape architect for the Maine Department of Transportation, noted that while most weed control along railroads is conducted mechanically, annual applications of herbicide are required to bring vegetation in the roadbed low enough to allow for safety inspections. Because traffic has increased along many Maine railroads, Moosmann claimed that the need for these safety inspections was greater than ever; increasing the buffer zone to 50 feet would extend the no-spray area over a third of the roadbed, potentially masking broken rails that could derail a train. (Inspectors find broken rails 20 or 30 times per year.) If such a train were carrying hazardous materials, this could result in a massive contamination incident.

An industry consultant from the St. Lawrence & Atlantic Railroad Company, Wayne Duffett, described the spraying equipment used by herbicide applicators along railroads: a truck traveling at 15 mph, delivering a 30-gallon solution rate at 40 psi. He claimed that these techniques justified the narrower buffer zone for railways than roadsides, because drift was practically eliminated.

Henry Jennings, enforcement director on the BPC staff, concurred that the railroads’ spraying technique delivered “the least amount of drift, except maybe using a Windex bottle.” However, some of the herbicides used, such as hexazinone, tend to leach into groundwater.

When asked about alternatives to spraying, Duffett claimed there were none. Mowing accounts for most the railways’ vegetation management budget but does not crop grass in the tracks short enough to permit inspection. He claimed that backpack spraying, besides increasing workers’ exposure to chemicals, would not significantly reduce spray drift. He said that he had tested the use of steam for killing weeds and that it had had excellent short-term results, but that it required 5000 gallons of water per mile of track and that the vegetation grew back quickly. However, this technique has been used successfully in Vermont.

RWC, Inc., the spray contracting firm that performs chemical vegetation control on all major rail lines in the state, submitted an alternative to the 10-foot buffer strip and monitoring plan proposed by the board. The company requested an exemption from the requirement to map sensitive areas within 500 feet of the spray zone, instead proposing to employ a spotter running ahead of the spray truck, to use drift control agents, to use only Roundup near public water supplies, to maintain a 10-foot buffer from all open water, and to restrict the spray swath to the minimum deemed necessary for the safe operation of the railways. The Maine Department of Transportation further offered to limit its herbicide use to “less hazardous” chemicals, such as glyphosate, imazapry and fossamine ammonium.

The board objected to these proposals because they contained no provisions for environmental monitoring; Moosmann said that the railways would fully cooperate with any monitoring operations conducted by the board and would provide space for investigators on their vehicles, but would not pay any monitoring costs, estimated at $12,000. He also knew of no immediate source of outside funding. Board chair Carol Eckert, M.D., expressed her displeasure that a year and a half of negotiations had not been rewarded by more progress.

The BPC’s determination to withdraw the customary variance brought up some legal issues, and the representative from the St. Lawrence & Atlantic even hinted a threat of a lawsuit. Although the variance is technically requested by RWC, Inc., the railways claimed that hiring private firms to conduct the vegetation management required by the ICCTA is standard operating procedure. Therefore, for the board to interfere with the operations of RWC could be construed in court as interference with interstate commerce, which is unconstitutional. The board laid the battle to rest for another year and granted the customary variance.

– Alice Torbert

Gorham Critical Pesticide Control Area Application Suspended

An application for a critical pesticide control area to restrict pesticide use around a sensitive individual’s residence has been suspended at the applicant’s request. The board had previously responded to the application of Mary Ellen Valentine of Gorham by convening a consensus rulemaking process involving representative neighbors likely to be affected by the pesticide restrictions requested. An organizational meeting met with considerable hostility on the part of neighbors (see the Dec. 2003-Feb. 2004 issue of The MOF&G, p. 11). At the March 19, 2004, BPC meeting, the board was advised that Valentine had asked that the process be suspended because she was uncomfortable knowing that the group would be discussing her medical condition at its next meeting. Board attorney Mark Randlett had invited Valentine’s attorney to “explain how the Board could conduct a public proceeding to be based on protecting her health without discussing the reasons she was seeking the critical pesticide control area designation.”

BPC Considers Standards for Indoor Pesticide Applications

After more than 17 years on and off the back burner of the BPC’s agenda, the issue of indoor pesticide application standards is back. Although many states have established standards for pesticide applications indoors, including notification provisions for tenants, Maine has none. The board initially considered establishing standards in 1987, and in 1998 and 1999 convened a stakeholders’ group, chaired by current board chair Carol Eckert, M.D., which ultimately recommended some notification provisions for indoor applications in public buildings. Repeatedly, however, action on the regulations was stalled due to other priorities.

At its April 23, 2004, meeting, the board discussed a rough draft of a regulation prepared by the staff. The regulations contain three major components: (1) a requirement that commercial applicators use integrated pest management (IPM) techniques; (2) a notification requirement for certain types of pesticide applications in certain types of facilities; and (3) a consent provision for applications to tenants’ living quarters. By existing law, any pesticide application to a building open to the public must be performed by a licensed commercial applicator.

For the first time, the proposed regulations set some standards for commercial applications: Applying principles of IPM, the application “should be conducted in a manner to minimize exposure and human risk to the maximum extent practicable using current available technology.” Applicators must identify “the pest specifically and evaluate the population and any associated damage before making applications.” They must choose “low risk” products and must not apply pesticides when people are in the immediate area to be treated. “Applications must be planned to occur on nights, weekends, vacations or other unoccupied periods to allow maximum time for sprays to dry and vapors to dissipate.”

The advisability of the IPM requirement brought little debate, although director of enforcement Henry Jennings noted that IPM techniques, which may often result in a decision not to spray, are not always popular with clients. Jennings noted that “one of the best commercial applicators in the state” had a contract with the Department of Corrections, but got “booted because they weren’t spraying enough.” (This writer pointed out to Jennings that the Department’s decision seemed to violate the Act to Minimize Reliance on Pesticides, 22 MRSA sec. 1471-X, which requires state agencies involved in the regulation or use of pesticides to “promote the principles and the implementation of integrated pest management … to minimize reliance on pesticides.”) Jennings also noted that appropriate guidance for indoor pesticide applications was often not found on EPA-approved container labels: “The EPA has very little science or focus on indoor pesticide applications. It’s always been a weak point in the regulatory scheme … Most pesticides for indoor use don’t have reentry requirements; they may say to “ventilate” but they don’t say how or for how long.”

Regarding notification, the draft rule applies to any “private, commercial or institutional structure used or occupied by persons on a regular, long-term basis as a residence or for occupations,” including but not limited to “rented residential buildings, condominiums, licensed daycare facilities and commercial and institutional buildings.” With certain exemptions, a commercial applicator or the client must provide at least 24 hours advance written notice of a pesticide application to “all residents, employees or other persons who routinely occupy the building on a regular basis.” At licensed or registered daycares and preschools or nursery schools, notices “shall be provided directly to the parents or the legal guardians of the children attending these programs.” Exempt from this requirement are owner-occupied single family residences, injections of non-volatile liquids into cracks and crevices, non-volatile baits, gels, pastes placed in areas inaccessible to residents, and applications performed when the building is vacant and persons will not be present until the re-entry interval specified on the label has elapsed.

Much discussion ensued about what types of daycare facilities the regulation should cover. As presently drafted, the notice provision would not apply to the 1800 certified family daycare homes, nor to daycare homes that were not certified by the Department of Human Services. The staff felt that enforcing the regulations for these homes would be impossible, given that they had recently initiated regulations for 1200 schools (the new Pesticides in Schools regulation) and that, as BPC staff director Bob Batteese noted, “we have only five inspectors to cover the state, four of whom are seasonal.” On the other hand, board member Lee Humphreys noted that the infants and children in these homes are among the “most sensitive populations,” and Jennings noted, “I suspect many of these are doing their own pesticide management, which for many of us is a frightening fact.” The board directed the staff to review these regulations with DHS to attempt to coordinate with their licensing system and explore possibilities for education of daycare providers on pesticide issues.

Regarding consent, tenants would have some right to reject a pesticide treatment even for applications that are exempt from the notification provisions of the proposed rule: “Except in cases of public health emergencies, as determined by a public health official with jurisdiction, application to a tenant’s living quarters is prohibited if they are opposed to such treatment until such time as alternative control measures have been tried and documented as to their failure to control a pest problem which poses health risks or threatens to infest other residences.” The rule is silent as to how the tenant would know a pesticide treatment was being contemplated, and hence how a tenant would know to object, without required notification.

The board will continue to work on the draft rule at its June 4, 2004, meeting, and eventually will hold a public hearing on the rule.

Aquacide Company to Pay $4,500 Fine

The Minnesota manufacturer of an aquatic herbicide that advertised on the Internet and sold product to Maine residents without registering it and without advising them that a DEP license was required for application to Maine waters was back before the BPC on April 23, this time agreeing to pay the previously suspended portion of its original $6000 fine. (See the March-May 2003 issue of The MOF&G, p. 16.) On December 6, 2002, Aquacide had approved a consent decree including a $6000 penalty, with $4,500 suspended provided it complied with terms of the agreement: registering its product, obtaining the required dealer license, and adding a statement to its sales brochure notifying prospective purchasers that the application may require a permit. The company then registered its product but failed to obtain a dealer license. On August 28, 2003, BPC director Bob Batteese placed a telephone order for 10 pounds of Aquacide Pellets, which was duly delivered to his residence. In the course of the subsequent enforcement action, Aquacide agreed to pay the suspended $4,500, plus to submit a plan to no longer distribute aquatic herbicides in Maine. On April 23, the BPC unanimously approved the new consent agreement.

– Sharon Tisher