Maine Organic Farmers and Gardeners Association
BPC Report – Summer 2003

Maine BPC Reports \ BPC Report – Summer 2003

Aquatic Herbicide Use Requires Permit and License

At its March 28th meeting, the Board of Pesticides Control (BPC) reviewed testimony from a Feb. 21 public hearing regarding the amendment to restrict the sale and use of aquatic pesticides, but the board couldn’t adopt the rule due to legal issues with the disclosure statement. The BPC proposed this amendment in May 2001, when the DEP and private citizens expressed concern over illegal applications of aquatic pesticides to state waters by several people. In response the board proposed an amendment to Chapter 41 adding aquatic herbicides to the Special Restrictions in Pesticide Use list, enabling only restricted use pesticide dealers to sell herbicides labeled for aquatic uses. These dealers would then sell them only to licensed applicators, and the seller would have to record all sales of listed aquatic pesticides.

The BPC staff recommended adopting the rule at the March meeting, if the board had no objections, so that the rule could be in place by the coming season, but Mark Randlett, assistant Attorney General, stated his concern about the legality of the disclosure part of the amendment. The disclosure statement is a notice the seller would have to give the buyer at the time of sale, informing the buyer that an aquatic discharge permit is required from the DEP and a commercial applicator’s license is required from the BPC before aquatic pesticides are applied “to any surface waters of the state or any private ponds that may flow into such a body of water at any time of the year.” Randlett believed this constitutes changing the label, which violates federal law. The EPA wants consistent labels for pesticides across all United States. The board decided that the rule couldn’t be adopted until the staff checked for precedents to justify the disclosure supplement.

The BPC then reviewed a summary of testimony, written comments from the public hearing and staff analysis of the comments. Four people supported the amendment. Roy Bouchard of the DEP said that anecdotal evidence suggested that a “fair amount of illegal use of herbicides” exists. He added that landowners could purchase aquatic herbicides over the counter, by mail order and over the Internet These last two methods concerned him the most, because of the number of instances the DEP has found in which aquatic herbicides that were illegally applied in Maine waters had been purchased online or through catalogs. Although the amendment does not focus on these issues, Bouchard stated that the DEP would like to work with the BPC staff to find more ways to communicate Maine’s laws to companies and vendors. In reference to what the amendment does address – the availability of aquatic pesticides to the general public – Bouchard said that the major concern was “the potential for repeat applications in small unregulated quantities,” which would be the kind of abuse that causes “cumulative impact on the environment.”

As a private citizen, Tracey Walls had testified at the public hearing, thanking the BPC for making a rule that would make these pesticides unavailable to anyone without an applicator’s license and would stiffen penalties for mail order and Internet dealers who sell aquatic herbicides illegally to Maine consumers.

Nine written comments were submitted to the Board, four supporting the rule. In addition to Bouchard’s and Walls’, one was from a commercial applicator who looks forward to the day when all pesticides are sold only to licensed applicators; another was from a forest pest control person who believes the rule will reduce the misuse of pesticides.

The five who questioned or opposed the amendment included a commercial applicator working for Central Maine Power, who said the rule was good but should not include pesticides that were for terrestrial use primarily. A restricted use dealer said that the rule would cause a record keeping burden for dealers. A member of the Responsible Industry for a Sound Environment (RISE), a consortium of pesticide companies, called the rule “draconian” and said it would drive consumers to seek pesticides on the web and through mail order.

The BPC agreed with proponents’ comments and acknowledged that more outreach is needed to address the availability of aquatic pesticides online and through mail order. It did not agree with the opposition. In response to an opponent who claimed that the board was “contradicting the intent of use of classifications as designed by federal pesticide law,” members said that states are allowed to impose stricter restrictions on the use and sale of pesticides according to federal statutes. Board members also disagreed with restricting only herbicides whose sole use is aquatic, because many terrestrial pesticides have instructions for aquatic application on their labels. The BPC found that the amendment would not cause undue record keeping burdens, since dealers must maintain records of general and restricted use pesticides already. A BPC staff member pointed out that only one dealer had expressed opposition to the rule.

The BPC staff and members discussed how to define an herbicide that is primarily for aquatic use, since pesticide labels list a number of uses. One suggested that if aquatic use was one of the first three uses listed, then the pesticide would be included on the Special Restrictions in Pesticide Use list. The amendment was tabled until the BPC staff could check with the EPA regarding whether the uses on pesticide labels were arranged in order of primary use and whether the label could be changed by states.

At its May 2, 2003, meeting, the BPC finally approved a regulation designed to limit the application of aquatic herbicides to lakes and ponds by unlicensed homeowners. The regulation, which becomes effective immediately upon publication, provides that a list of specific herbicides labeled for aquatic use may be sold only by restricted use pesticide dealers who may, in turn, sell them only to licensed individuals. The restricted use dealer will be required to record these sales and is asked to voluntarily provide the purchaser with a notice that an aquatic discharge permit from the DEP and a commercial applicator’s license from the BPC are required before any application may be made. An earlier draft mandating such notice fell afoul of a concern that it constituted a state-imposed pesticide label. Paul Gregory, previously public relations officer of the BPC, represented the DEP at the meeting to express the department’s thanks for the BPC’s enactment of the rule. “The timing could not be better,” Gregory noted. The DEP is working on campaigns to address the invasive aquatic plants milfoil and hydrilla and is very concerned that the public not conclude “that all aquatic plants are bad.” The new BPC rule should drive home the fact that under no circumstances should homeowners apply aquatic pesticides on their own. Tracey Walls, the citizen who brought the issue to the BPC’s attention after hearing a story on Maine Public Radio, and carefully followed the board’s deliberations on it for more than a year, was on hand to celebrate the final approval.

Gorham Resident Requests Critical Pesticide Control Area

Mary Ellen Valentine of Gorham submitted a request that the BPC create a critical pesticide control area for a 500-yard radius around her home, because her severe asthma is set off by a number of environmental stimuli. The request sought to establish a zone free from all pesticides, including fungicides and herbicides, and fertilizers. Her attorney said in a written statement that Valentine “faces a bleak existence being forced to stay indoors in order to breathe adequately” without a critical pesticide control area around her home. The BPC could not consider the matter until further information was provided by Valentine regarding who owned all properties within the 500-yard radius.

On May 2, 2003, the BPC again deferred action, as it concluded that the application was incomplete. Valentine’s attorney, Jennifer A. Davis of the Disability Rights Center in Augusta, had provided the board on April 23 with a list of the names and addresses of all neighbors within the 500-foot radius and had requested that the board proceed “as quickly as possible” with a public hearing on the proposed rule. Davis’ letter stated that Valentine, who is on the pesticide registry, had already received two calls from pesticide applicators advising her that treatments would be made to lawns in her area. “The most troubling call occurred after 7 p.m. on Saturday, April 19, advising her that pesticides would be applied on Easter Sunday, April 20.” The board, however, determined that the application was still incomplete, as it had not received a scaled map of the proposed Critical Pesticide Control Area. BPC Director Bob Batteese advised the board that a rule could not be in place for this summer under any circumstances. He also advised the board that he was reluctant to send out notices of the proposed rule to the neighbors, advising them that everything from bleach to pet collars to moth balls would be prohibited. Valentine’s attorney had declined to negotiate the terms of exemptions for certain products or for indoor applications from the pesticide prohibition in advance of the public hearing. The board discussed with BPC attorney Mark Randlett the possibility of requiring Valentine to participate in a consensus rule-making process with her neighbors before proceeding to a public hearing on her application.

Medical Advisory Committee Discusses Trichlorfon

The BPC requested that the Medical Advisory Committee (MAC) consider taking trichlorfon off the limited use list, which requires a permit from the BPC before applying this chemical. The request was prompted by a landscaper’s application in 2002 for a permit to use the chemical to exterminate grubs on his customers’ lawns. The board did not grant a permit, because the landscaper failed to show clear threats to public health, environmental damage or economic emergency. Trichlorfon is an organophosphate presently used primarily for lawn care, but in the past was used on blueberries. Prior to 1988, it was on the restricted use list due to mutagenicity, but it was then put on the limited use list to allow its availability. The listing change was not, however, brought on by any updated toxicology information. In 49 other states, it is considered a general use pesticide.

The MAC expressed concern regarding the potential for trichlorfon as a carcinogen when given in high doses to animals and the fact that after chemical breakdown it remains a carcinogen. The EPA says that human exposure would be low, but the MAC was still concerned about cumulative effects of this and other organophosphates on humans. The members decided not to make any decision on removing this chemical from the limited use list until the EPA’s publication on the cumulative effects of organophosphate exposure and other assessments was available. The MAC will meet again in two or three months, so trichlorfon likely will not be obtainable this season.

In a related development, at its May 2, 2003, meeting, the BPC approved a limited use permit to apply trichlorfon (Dylox) to up to 100 acres on a turf farm operated by Scamman Farm and Down East Turf of Saco. The board distinguished its denial of an earlier application by a commercial lawn care applicator to apply Dylox ( Dec. 2002-Feb. 2003 MOF&G), on grounds that the pending application was based on a claim of “significant economic loss” to the turf farm. (The applicants did not, however, submit any data supporting their claim of potential economic loss, only a written statement that the alternative to Dylox, preventive treatments using another insecticide, was “very costly.”) Board member Lee Humphreys asked the applicant’s representative whether the company had tried using nematodes as a biological control. He replied that he had not, and believed from what he had read that they were not very effective. Agriculture Department IPM specialist Kathy Murray responded that research suggests a high level of effectiveness by nematodes and urged the company to consider them. The board nevertheless granted the application for one year. The application includes a proposal to apply the organophosphate to a field 30 feet from the Saco River. In response to an inquiry from Sharon Tisher, the BPC toxicologist acknowledged that Dylox was “hot,” i.e., highly toxic, for fish and aquatic life, but staffer Gary Fish opined that leaching into the river was unlikely given the strip of woodland separating the river from the field. Director of enforcement Henry Jennings commented that the board might want to “look at the environmental fate a little closer [if the application is renewed] next year.”

Legislation to Add More Public Members to BPC Voted ‘Ought Not to Pass’

Robert Batteese, BPC director, told the board that a bill submitted to the Agriculture, Conservation and Forestry Committee that would have added two members to the BPC was unanimously voted “ought not to pass” by the committee. The two additional members would have come from environmental and public health sectors.

Lee Humphreys, a BPC member who runs an organic market garden, agreed with proponents of the bill who said that the BPC is reactive rather than proactive. Humphreys said that this is because the board does not have enough staff to deal with the many pesticide-related issues in the state; she wishes it could be proactive. Board member Carol Eckert, M.D., agreed. She brought up the failure of the board over many years to address the lack of regulations on notice of indoor pesticide use in rental housing and commercial and public buildings. She said that notification of indoor pesticide use is important and should be first on the list for the board to address in the coming months.

Dow Application for Stinger (clopyralid) Tabled

The herbicide clopyralid was much in the news last year, stemming from its tendency to persist in compost made from treated grass clippings. Though its uses for lawn care have been cancelled as a consequence, Maine cranberry growers would like to use clopyralid to control weeds on their bogs, as Massachusetts growers have with reported success and higher yields. Why they can’t (yet) is a complicated regulatory morass. The EPA has registered clopyralid for use on cranberries. However, the manufacturer, Dow AgroSciences, refuses to sell the product under the EPA registered label because instances of crop damage have occurred when the product was used, even in accordance with label instructions, on cranberries. Dow would like to have its product approved for sale by Maine under a Special Local Needs (24c) Registration. Under Dow’s application, supported by the University of Maine Cooperative Extension and the Maine Cranberry Growers Association, the label would provide that no one can use the product on cranberries unless he or she signs a waiver of liability certificate, absolving Dow of any liability for use. Such a waiver requirement would not be possible under normal EPA registration. The EPA has taken the position that “products bearing labeling that requires growers to waive their rights to bring suit as a condition of lawful use of a product are not consistent with FIFRA [Federal Insecticide, Fungicide and Rodenticide Act].” Dow hopes to secure such a waiver by getting state 24C approval, which automatically becomes effective unless the EPA objects within 90 days. A similar application by another pesticide manufacturer in 1994 was denied by the BPC, upon advice of then counsel Thom Harnett. The concern was that the state would have to initiate enforcement actions for uses of the pesticide by growers who hadn’t waived liability, thus putting the state in the incongruous position of spending resources to enforce the manufacturer’s private contractual agreement with a grower. Assistant Attorney General Mark Randlett expressed the same concern regarding the Dow application, stating as well that the mandatory waiver provision “appears to be a requirement for use and falls squarely within what the EPA says is not appropriate.”

Nonetheless, Cooperative Extension Cranberry Crop Specialist Charlie Armstrong and four Maine cranberry growers urged the BPC to approve the registration. With only 30 growers in the state, Armstrong indicated that little problem would exist in ensuring that all growers signed the waiver Dow demanded. Armstrong noted that with prices for processed cranberries well below production costs for the past four years, increased yields from better weed control “could be a life saver.”

Lawrence Grant, president of Maine Cranberry Growers, spoke in favor of the state registration and argued that cranberry growers should be permitted to assume the risk of crop damage from the product. His own remarks highlighted this risk: A test plot of his berries was treated by Stinger. While the cranberries tested negative for herbicide residue, “the following year I didn’t have any berries.” Grant said this underscored the importance of using Stinger just for spot treatments, but still urged the BPC to enable him to use the product in Maine.

Board Chair Michael Dann expressed concern that Dow was “trying to drive around the process” by having states take responsibility for the label requirement, which Dow couldn’t get under normal EPA registration. Andrew Berry noted that nothing prevents Dow from entering into private agreements with growers; the problem was making the waiver a part of the label, which then involved state enforcement responsibility. Upon motion of Lee Humphreys, the application was tabled, and Randlett was asked to attempt to negotiate with Dow a revision to the proposed label language. =

K-Mart Fined for Selling Dursban

In enforcement actions at its May 2, 2003, meeting, the BPC approved a $500 fine against the Presque Isle K-Mart for selling the organophosphate chlorpyrifos (Dursban) June 10, 2002, for home use, more than five months after such sales became illegal as a result of EPA review under the Food Quality Protection Act. The BPC inspector, Max Miller, had advised the store management twice that Dursban should be off its shelves as of December 31, 2001.

Newman Realty Fined for Illegal Pesticide Application

The BPC also approved a $1000 fine against Bangor landlord Newman Realty for applying an insect fogger to the apartment of Peggy Turner without a license and without allowing her, her boyfriend and their cat adequate time to vacate the premises and cover food, dishes and food preparation equipment as required by the label. Whereas the label for the pesticide, Green Thumb Home Insect Fogger, required that no more than a single canister could be released in one room, the maintenance man set off three canisters in the kitchen, while the apartment was still occupied. Turner had to enter the kitchen to rescue her cat. Both Turner and her boyfriend vomited, became lightheaded, had difficulty breathing, and were treated at Eastern Maine Medical Center. Dr. Carol Eckert of the BPC commented that this was yet another instance underscoring the need for the board to address regulations for indoor pesticide use.

– Tracey E. Walls and Sharon Tisher