Maine Organic Farmers and Gardeners Association
Maine BPC Considers, Rejects Revising Mission

Maine BPC Reports \ BPC - Spring 1997

In response to a proposal by MOFGA, the Board of Pesticides Control (BPC) seriously considered revising its mission statement to target pesticide use reduction as a goal. The subject came up in the context of a November 15 review of submissions by individuals and groups on the subject of aerial spraying. After rejecting a citizens’ petition to ban aerial spraying, on May 24, 1996, the Board sent an open letter to interested parties seeking suggestions on how the Board might reach “common ground” on issues of public concern regarding aerial spraying. Thirty responses were received, more than half urging no changes in policy on aerial spraying or less regulation. Of those who sought greater restrictions on pesticide spraying, public representative Jo D. Saffeir reported that MOFGA’s submission was the “most extensive” and “concrete.”

Among MOFGA’s recommendations were that “sensitive areas” under the spray drift regulations be defined to include all public rights of way, and to include a larger buffer zone than the current 100 feet; that aerial application be prohibited in all “sensitive areas;” that drift management plans be mandatory; and that particularly toxic chemicals classified for restricted or limited use not be applied aerially at all. MOFGA also proposed that aerial application be allowed only by permit, with the burden on the applicant of proving that other methods were physically impossible, or would result in greater pesticide use; that fines for violations be significantly increased to better reflect at least costs of enforcement; and that the Board develop data on short and long term health effects from pesticide exposure in Maine.

The Board indicated during the discussion on November 15 that it would give further attention to the issue of buffer zones and to public rights of way; but the proposal that most clearly captured the Board’s interest was MOFGA’s recommendation that the Board redefine its mission to one of reducing pesticide use in Maine, instead of its current de facto mission of “preventing gross abuses.” Jo D. Saffeir, in summarizing public responses, stated that this proposal was “the most compelling for me … It’s not a radical idea … that a reasonable part of our agenda is to accomplish a reduction in pesticide use.” Saffeir pointed out that in Vermont this is part of the explicit mission of the pesticide control authority. Alan Lewis also appeared taken with the idea, suggesting that “we may make more progress if we articulate [pesticide use reduction] as part of our mission.” Lewis believed that there was a greater need to communicate this in the area of household and suburban application than agriculture or forestry: “We have to start people thinking about the fact that they are putting a huge chemical burden on the environment by having a lawn that is green and weed free … for absolutely nothing but a cosmetic

In the area of agriculture, too, Lewis acknowledged reduction to be an important goal: “We’ll ultimately know we’ve arrived when we can grow crops without using pesticides.”

MOFGA Executive Director Russell Libby reinforced the need to restate the BPC’s mission. The Board, Libby commented, is too often just “tinkering around the edges.” “If we don’t have a goal we have no reason to move toward it. There’s relatively little movement toward change in agricultural systems.” The fundamental work of the Board, Libby suggested, “should be helping people understand ways to solve their problems with less toxic or nontoxic methods.”

BPC training director Gary Fish wanted to counter the impression that the Board “doesn’t already have pesticide reduction as their goal.” Fish noted that BPC applicator training presents the use of pesticides “only as an absolute last resort.” All of the BPC manuals emphasize nonchemical control of pests, Fish added. Board chairman Tom Saviello, who also supported more “talk about a reduction mandate,” indicated that he thought that the industry was reducing the use of pesticides, but acknowledged that the Board has been unable to document that.

Board members expressed the view at the November 14 meeting that the Board would not need legislative authorization to adopt a pesticide reduction goal, as it was consistent with its general mandate to regulate the use of pesticides to ensure public health and safety. There was no discussion of the elements of MOFGA’s proposal that would give “teeth” to the pesticide reduction goal: that the Board do a better job of tracking pesticide sales statistics, reward decreases in pesticide use in particular industries, and address growth in pesticide uses as a problem needing a remedy.

By the Board’s December 13 meeting in Bangor, and following a workshop in which members had discussed the idea further, the Board rejected a mission revision. Instead of addressing the general overuse of pesticides in Maine, the Board decided to initiate a public information campaign aimed at the cosmetic use of pesticides for lawn care. Alan Lewis noted that there were “52,000 applications of pesticides to lawns in greater Portland last year,” and that it was important to “get people to think that as consumers they have direct control [of pesticide use].” Elements of a campaign under discussion include an 800 number where consumers can call to get advice about when pesticides might be needed, distribution of information to garden clubs, and an information packet.

During a further discussion of the public education campaign in its January 17 meeting in Augusta, Board member Jeff Smith, a potato farmer, stated that he had a “very serious problem” with any new Board activities aimed at pesticide reduction: “To sit here and decide to take a meat axe to pesticide use makes an assumption about pesticide use I just don’t think is accurate. It assumes on the balance sheet of advantages and disadvantages that pesticide use is a disadvantage. It also makes the assumption that if we look a little harder there are alternatives. From my perspective there are not alternatives.” At this point MOF&G reporter Sharon Tisher spoke from the audience, expressing surprise at Smith’s perspective on pesticide use. She asked Smith how he reconciled his comments with the findings of the Maine Potato Ecosystem Project, reported in the Maine Experiment Station April 1996 bulletin. The research project of the University of Maine, in cooperation with the Maine Potato Board, Tisher pointed out, showed that Maine potatoes could be grown more profitably with a system that reduced herbicide use by half over current Cooperative Extension recommendations. [cross reference to article in same issue re pesticide reduction] Smith stated that he wasn’t familiar with the project; indeed, the only BPC member who indicated some awareness of the report was Richard Storch, a University of Maine professor. Tisher urged Board members to study the report before drawing conclusions about the feasibility of pesticide reduction in Maine agriculture.

Lewis stated that the Board would also, in response to comments by MOFGA and others, look at best management practices in relation to spraying public roads (but it is not considering any regulatory revisions to protect public rights of ways, which are currently not even defined as “sensitive areas”).

Spray Registry Proposed

Also at the November 14, 1996 meeting, the BPC held a session to gather information about a potential spray registry of persons who would have to be notified before pesticides were applied. This was the first action of the Board since a focus group, in 1991, recommended a spray registry for sensitive individuals. Staff member Tammy Gould reported that seventeen states currently have registries: eight “closed,” or limited to people who can provide medical certification of special sensitivity, and nine open to anyone who wants to be notified. The BPC wanted to consider at the session whether to have an open or closed registry, whether to charge a fee for registration, and whether to require annual renewals.

Five representatives of pesticide applicators spoke against establishing a registry. Scott Stevenson of Modern Pest Control claimed that a registry for sensitive persons was unnecessary, because there was “one, possibly two or three” chemically sensitive individuals in the state, and a spray registry wouldn’t protect them from other sources of chemical exposure, such as paint thinners and cleaning solvents. He also claimed a registry threatened homeowners’ property rights, and that a delay to notify neighbors could be a major problem where applicators were called out to eliminate a beehive to protect an allergic child from stings. Operating with an open registry, Stevenson argued, would be a “logistical nightmare,” if, as in Wisconsin, as many as 10,000 people asked for notification. Other applicators argued that a registry was unnecessary, since they voluntarily took steps to identify sensitive individuals where they sprayed and notified them.

Russell Libby and Sharon Tisher from MOFGA supported establishment of a registry. Libby urged adoption of an open registry, and any other ways to enhance the information flow between all applicators and abutters. Libby noted that applicators have to learn to “communicate not just with their customers but also with their neighbors.” Organic growers, Libby stated, have a very real economic interest in knowing when their neighbor will be spraying pesticides.

Tisher responded to questions regarding the spray registry that MOFGA maintained in the 1980s. The registry was discontinued, Tisher noted, because it was purely voluntary, and only a few applicators in the forestry and blueberry industry (Board member Tom Saviello included) consulted it. “This underscores the need to put some regulatory teeth into the registry.” Tisher argued that it would be wrong to limit a registry to people who can obtain a doctor’s certification of an acute reaction to pesticides. People who want to be on the registry because they are concerned about long term health effects for themselves, their children, and their unborn children have just as legitimate concerns: “We can say with reasonable probability that exposure to pesticides increases the risk of immune disorders, cancers, and adverse effects on the nervous and reproductive systems.” These people want to know when to keep their children inside, their windows closed. Tisher also noted that exemptions can be built into the registry for emergency applications to protect bee sting allergic people, and that the registry could be financed by an added tax on lawn care pesticide products, which would account for the majority of nonagricultural notifications. “We all pay enough for our exposure to pesticides; we shouldn’t be charged a fee for notification.”

At its December 13 meeting, Tom Saviello announced that the Board was going to pursue establishment of a spray registry for all applications, interior and exterior and agricultural and nonagricultural, and give it “top priority.” The Board is inclined to have an open registry, but with a two tier structure that would allow people who had submitted medical documentation of special sensitivity to have special notification protections. The Board expects to charge a $10 fee for inclusion in the registry, and to require renewal every two years. The Board is also inclined to make consulting the registry mandatory for applicators. Further discussion at the January 17 meeting demonstrated that the Board is unsure about how to address many details about operating a registry: Exactly what type of notification would registrants get in exchange for their 10 dollars? How, if at all, will the registry apply to homeowners who apply pesticides on their own lawns? Will notification be limited to legal abutters, or to people within a certain prescribed area of operation? Staff was directed to further examine how other states operate their registry and report back with various alternatives at the next meeting.

Landlord Applies Pesticide with “Super Soaker”

The case of Lewiston landlord Patrick Chaloux has been referred by the BPC to the Attorney General for prosecution “to the fullest extent possible.” Chaloux had been the subject of numerous complaints over several months by tenants at his 195 Blake Street apartment. Chaloux had allegedly repeatedly applied Dexol Diazinon 24% Insect Spray to the interior of the apartments. Chaloux does not have an applicators’ license, and Dexol Diazinon is labeled for outdoor use only. One application was allegedly with a toy “Super Soaker” gun. Chaloux continued this practice even after being warned by the Lewiston Code Enforcement Officer that he was not authorized to apply pesticides. On the last reported occasion, one tenant refused to allow Chaloux into her apartment, as she was nine months pregnant. Chaloux reportedly blamed the tenant for the presence of roaches, and proceeded to spray the hallway outside her apartment so intensely that three children in the apartment were made sick, one vomiting continuously. Although this event occurred on December 14, 1995, staff deferred bringing the matter to the BPC for action, since Chaloux had reportedly left for Georgia and was not returning staff’s phone calls.

Board Member’s Company Subject to Spray Drift Complaint

In an unusual turn of events, Board member Andrew Berry, principal of Maine Helicopters, Inc., had to recuse himself from the Board on December 13 and respond to a citizen complaint of a spray drift violation.

Brad Mitchell, a tractor trailer driver from Beals, complained that on the early morning of June 7, he was driving on Route 191 in Cooper. Moments after observing a helicopter on his left, his truck was covered by a “brownish rain” of droplets. He closed his windows and vents, but his windshield was covered so thickly that he “could hardly see.” He stopped at a gas station to hose off the truck . A statement taken by the station manager confirmed that the truck had been “covered quite extensively” by an “off white substance.” Eugene Herrin, a pilot for Maine Helicopters, Inc., admitted to applying the fungicide Benlate in the field bordering Route 191 at that place and time, but denied ever seeing any vehicles on the road. Both Mitchell and his wife Brenda appeared at the hearing on the complaint.

Unlike two similar cases of alleged Benlate drift on vehicles, which were recently dismissed because the complainants had washed their cars and couldn’t prove a pesticide residue (MOF&G, Dec/Feb 1997), the Board appeared to give credence to this complaint. It was not, in fact, strenuously disputed by the pilot, Herrin, or by Maine Helicopter’s Berry. In response to questioning from the Board, Berry conceded that while 95% of the Benlate product would usually fall directly on the target field, “fines,” or a mist of fine droplets, could linger in the air and drift, and he “suspect[ed] that’s what got on the truck.” And while Herrin never saw a vehicle, he admitted that a bend in the road cut off his visibility to the south, where Mitchell was coming from. Board member Alan Lewis questioned whether, under such circumstances, when spraying in close proximity to a public right of way with impaired visibility, it wouldn’t be reasonable to have a spotter on the ground to protect traffic.

In response to a question from the Board about the applicable legal standard, counsel Thom Harnett noted that while a “reasonableness” standard applies under drift statute and regulations, the Benlate label imposed an “absolute prohibition:” “Do not apply this product in a way that will contact workers or other persons, either directly or through drift.”

In view of Berry’s position on the Board, the Board did not elect to negotiate a consent decree itself on this complaint, but referred it to the Attorney General for action.

Enforcement Action Against DeCoster Egg Farms

In September, 1996, two employees of DeCoster Egg Farms, both on “light duty” reduced work schedule because of previous injuries, were directed by their supervisor to make fly pest strips by cutting strips of masking tape and pressing the sticky side into pans filled with a commercial fly bait. The fly bait’s active ingredient was methomyl, a cholinesterase inhibitor. The label of the product states that it is “harmful if swallowed, inhaled or absorbed through skin. Avoid breathing dust. Avoid contact with skin, eyes, or clothing.” Francisco Garibay was required to make the pest strips for four hours a day for more than five weeks, during which time he suffered headaches, stomachaches, diarrhea, dizziness and nose bleeds. Isolina Echeverria was forced to stop the work after 10 days, after suffering nose bleeds, vomiting, and numbness. Most of the time the employees worked with their bare hands; occasionally they were given disposable rubber gloves which rapidly tore. The employees, who are Mexican, can neither read nor understand spoken English.

At no time were the workers given pesticide safety training or told to take any precautions to avoid exposure to the pesticide. When they complained about their reaction to the bait, their supervisor, Homero Ramirez, was unsupportive. Garibay told the BPC that he though Ramirez had a grudge against them because of the workers compensation claim on their prior injuries: he “wanted to see us dead just like the flies.” Investigators reported that while a number of commercial fly strips were available, a spokesman for DeCoster claimed that it was a common practice in the industry to save money by making strips on site. Prior to assigning Echeverria and Garibay to the task of making them, they had been made by an outside contractor who took more appropriate safety precautions.

No representative of DeCoster appeared at the January 17 Board meeting where the results of the investigation were reported. The Board directed staff to negotiate a settlement with DeCoster, which included assurances that DeCoster employees would no longer be involved in this type of operation. They indicated they also might consider steps designed to prevent this particular practice anywhere in the state, by putting methomyl on the restricted use list.

The Board will next meet on March 21.

– Sharon Tisher