Maine Organic Farmers and Gardeners Association
Maine Board of Pesticides Control - Winter 1997-1998

Maine BPC Reports \ BPC - Winter 1997

Does Maine Need Genetically Engineered Corn? BPC Seeks Public Sentiment

If representatives of two corporate conglomerates expected smooth sailing when they trekked to Houlton on October 24 to seek Maine registration for their pesticide-laced transgenic corn, they were in for a surprise. After presentations by Novartis Seeds and DEKALB Genetics about their genetically engineered field corn, which incorporate a Bt gene to control European Corn Borer (ECB), the Board of Pesticides Control (BPC) voted 3 to 2 to table the application for Maine registration, pending a public hearing tentatively scheduled for December 12, 1997, in Bangor, and pending further submissions from the manufacturers documenting a need for the product in Maine.

“Novartis Seeds” is the result of a merger of the Swiss chemical company Sandoz, and Ciba Seeds, and is affiliated through the merger with five other seed and agricultural product companies: Northrup King, Rogers, S & G, Hilleshog, and Vaughan. Jeff Stein, from Novartis’ facility at Research Triangle Park in North Carolina, spoke on behalf of Novartis. Stein argued that the new genetically engineered field corn plant – marketed as “KnockOut built-in corn borer control” – accomplished “95%” control over the ECB, by incorporating the Bt protein throughout the corn plant. Bt binds to the gut of the ECB, causing it to stop eating and starve. Stein described the alternative method of control, Bt spray, as much less effective because it has to be carefully timed to the life cycle of the insect and applied on the part of the plant where the larvae feed.

Although not marketed as such, the Novartis transgenic corn also has herbicide resistant properties. The marker gene used to facilitate the production of the Bt plant confers tolerance to the active ingredient in the herbicide glufosinate, marketed as Liberty herbicide by another company. The situation differs somewhat from Monsanto’s development of “Round-up Ready” transgenic crops which enhance the market for its Round-up herbicide. For now, Novartis is not marketing its product as “Liberty-linked” (although the DEKALB product will be), because, as Stein put it, Novartis and the manufacturer of Liberty (AgrEvo) are “suing the pants off each other” over gene patent infringement claims. Ultimately, however, if both corn products prove to be popular in Maine, they may promote the useof Liberty herbicide. (The label on Liberty warns that the herbicide may be fatal if absorbed through the skin. Also, it is to be used only with Liberty-resistant plants.)

Stein admitted that the biggest issue in the registration of these products is insect resistance. If widespread use of the Bt corn develops in the field, it is likely to place “high selective pressure” on the ECB to become tolerant to the Bt toxin. The key to managing resistance, Stein said, is to have sufficient non-Bt fields so that resistant borers are more likely to mate with nonresistant insects, yielding nonresistant off-spring. Stein said that it was generally agreed that resistance was a “non-issue” until more than 50% of field corn is the genetically engineered variety. In Nebraska, the 50% threshold could be reached in five to six years. Nationwide, 0.4 million acres of Bt corn out of a total 80 million acres were planted in 1996, increasing to 7.3 million acres in 1997. Stein also claimed that since the Bt protein used in corn was a different protein from that in the transgenic potato already approved in Maine, affecting a different insect, there was no cumulative or cross-resistance issue.

Stein conceded, however, that no marketer of Bt corn had an EPA-approved resistance management plan yet. EPA registration of these products was “conditional” upon development of such a plan in five years – by the year 2000. “There are too many answers or approaches as to the amount of refuge [non-Bt fields] needed to avoid resistance – estimates range from 5% to 50%.” According to the EPA, Stein noted, “so much is not known that it would be premature to come out with a refuge strategy now.” The first five-year conditional registration is designed to “fill in the knowledge gaps.” During this period, manufacturers are studying such issues as “insect growth, migration behavior, mating....”

Stein also conceded that once an ideal percentage of nontransgenic corn fields is determined, complex issues arise about ensuring that level. The company prefers relying on voluntary cooperation of farmers rather than regulation, but agrees that weaknesses exist with that approach. Even if each company can get accurate data from farmers as to the percentage of fields planted with their product, “you can get over 50% from other manufacturers,” since several seed companies are competing. Stein claimed comfort, however, from a customer survey indicating that “90% of growers said they would follow what we recommend.”

David Miller from DEKALB basically piggy-backed on Novartis’ presentation, providing additional data, however, on the economics of the product. Miller argued that the Bt seeds produced healthier plants with stronger stalks, with a 9- to 15-bushel increased yield per acre under average ECB pressure. The product costs an additional $10 per acre to plant.

Unlike Monsanto’s NewLeaf potato, Novatis and DEKALB conducted no field trials of transgenic corn in Maine; the data they presented were derived from out-of-state. BPC staff had determined that 30,000 acres of corn were grown in Maine: 28,000 forage and the remainder sweet corn. (Neither company is seeking Maine registration for transgenic sweet corn, although transgenic sweet and popcorn have been approved in five states). BPC director Bob Batteese reported that his inquiries revealed that “very few [Maine] growers spray insecticide for corn borers,” but that may mean that it’s “a problem they don’t think they can easily control.”

After a motion to register the product subject to a resistance management agreement similar to that required with the NewLeaf potato, the issue was opened for discussion and comments from the audience. Both the Green Party and CLEAN: Maine had faxed opposition statements to the registration and requests for a formal public hearing on the application. This writer read a statement from MOFGA executive director Russell Libby, stating in part that ”MOFGA continues to be opposed to the release of living genetically modified organisms. We’re particularly concerned about the widespread use of various strains of Bt in these products, and the high likelihood of developing resistance over time.. We’d hope that the Board would step back and ask ‘What purpose does this serve?’ and ‘Who benefits?’ before rushing to approval on these items.” This writer then added her concerns, as a result of her service on the Maine Commission to Study Biotechnology and Genetic Engineering, that field release of genetically engineered organisms was happening “too fast and without sufficient knowledge.” She indicated that the presentation of Jeff Stein on behalf of Novartis only underscored the many unknowns about both insect biology and resistance management. She also noted that one of the criteria that the BPC must find before registering any new pesticide is that a need exists. Neither company had met its burden of demonstrating that a need exists for this product in Maine, that the ECB is a significant problem in Maine, or that it would be cost effective for farmers to pay the premium to use this product. There were “no farmers here asking for this product;” this appears to be a request “coming from the manufacturer, not the consumer.”

Three of the five BPC members present agreed that they were not ready to register this product. Jo D. Saffeir stated that she was “surprised that the EPA would give conditional approval before a resistance management plan is worked out.” Dr. Carol Eckert, a member of the Medical Advisory Committee, reported that the Committee’s examination of the application concluded that since this was a forage crop, there was no human toxicity or allergenicity issue. However, “we haven’t dealt with the public concerns very well yet,” and “I’m not sure we’ve demonstrated a great need for this product.” Alan Lewis stated that he was concerned as “a scientist and an ecologist” about “all the unanswered questions we have.” “Some [questions] really suggest that this is premature – research on basic biology of the European Corn Borer – is it sedentary or does it move long distances...” He also concluded that there were a “large number of people who want to be a participant in this debate, and it’s not fair to people if we don’t allow them an opportunity.” Upon motion by Lewis, seconded by Eckert, the motion to table was approved 3 to 2 (Andrew Berry and Richard Storch, who made the original motion to register, opposed). The applicants were directed to return with a needs analysis specific to Maine farmers, and a public hearing date was tentatively scheduled for Friday, December 12, 1997 in Bangor. People interested in attending should call the BPC at 287-2731 to get on the mailing list for notice.

Wal-Mart Cited Yet Again for Pesticides Violations

Formal notice given last year to Wal-Mart about pesticide storage and display problems in its Maine stores appears to have fallen on deaf ears. Once again, on August 1, 1997, Wal-Mart officials were called to task for new violations, this time at the Ellsworth store.

On May 7, 1997, in response to a complaint by Board of Pesticides Control (BPC) member Alan Lewis, an inspector visited the Ellsworth store. He found a pallet of 5% diazinon bags, “soaked and badly deteriorated,” left outdoors in an area of public access, and 14 punctured and leaking bags of granular Weed & Feed in another outdoor display area. In both instances, pesticides had spilled onto the pavement where customers walked. Less than a year earlier, on August 29, 1996, the BPC had given Maine corporate headquarters for Wal-Mart a formal written warning for pesticides storage and signage problems, which “appear to be chronic problems in Wal-Mart’s stores.” State regulations require pesticides to be displayed and stored only in roofed areas protected from the elements, bags to be in “good condition” and not “torn, punctured, rusted or leaking,” and signs on display indicating “PESTICIDE DISPLAY AREA” and advising purchasers to “READ AND FOLLOW ALL PESTICIDE LABEL INSTRUCTIONS.” Violations of all of these provisions had been found at several Wal-Mart stores. The warning noted that “any future violation will be considered a second offense and as such will result in a more stringent enforcement response, including potential penalties up to $1500 per violation.”

To respond to the new charges, Ellsworth store manager Patty Moore appeared before the BPC at its August 1 meeting, along with Wal-Mart’s attorney. Moore stated that she had only been in charge at the Ellsworth store “for a few weeks” when the violation occurred, and had been transferred from a store out of state. She had no knowledge of the 1996 warning and had not been instructed regarding State pesticides regulations. In response to a question from this writer, she stated that Wal-Mart gave her a store manager’s manual, but it was a nationally applicable manual and had nothing in it regarding proper handling of pesticides or other state regulations. Moore stated that steps were being taken to prevent future violations at the Ellsworth store. The Board voted unanimously to direct the staff to negotiate a consent agreement with Wal-Mart; the extent of any fine was not discussed.

Pesticide Registry Rules Still Under Revision

The BPC’s proposed pesticide registry rules (see MOF&G, Sept./Nov. 1997) have gone back to the drawing board. In the latest revision, agriculture has won a complete exemption, and new requirements are proposed for posting public lawns and gardens with pesticide warnings.

At hearings held in June, the Maine Potato Board, the Agricultural Bargaining Council, the Maine Blueberry Commission, and other agricultural representatives strongly opposed the application of a pesticides notification registry to agricultural producers. Their positions were succinctly summarized at the BPC’s August 1 meeting by Board member Jeff Smith, a potato farmer, who characterized the regs as a “straight-jacket,” and “practically impossible” to comply with. Smith noted that the new requirements for timing of notice to neighboring property owners wouldn’t allow for last minute changes in applications to adjust to changed conditions in the field. Dave Bell of the Blueberry Commission had noted that this might well “confound IPM strategies.” Smith also questioned the need for notice: “For a crop like potatoes, I don’t know what the surprise would be; you absolutely, positively are associated with pesticide applications throughout the season.”

Consequently the Board voted on August 1 to make the pesticide registry provisions apply only to nonagricultural pesticide users. Agricultural applicators would still be governed, however, by existing notification provisions, which are now part of Ch. 22 of BPC regulations. These regulations allow any property owner or tenant to request from neighboring farmers or other applicators notice of any outdoor pesticide application that may occur within 500 feet of his or her home. This notification requirement may be satisfied, however, by only one notice for a growing season, stating the “approximate” date(s) when pesticides will be applied, and identifying the pesticides and person responsible for application. If the property owner is dissatisfied with this notice, additional agreements may be negotiated, and a complaint may be made to the BPC if the parties are unable to agree about the adequacy of notice.

For non-agricultural pesticide applications, following are the highlights of the currently proposed rules:

• 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 register for an initial $10 fee, renewable annually for $5;

• listing on the registry will entitle you to notice of all outdoor nonagricultural pesticides applications within 150 ft. of your property line; but the Board may upon petition grant individual requests to extend the notification perimeter to 250 ft;

• when you register, you will be required to list the names and addresses of all property owners and tenants who under the regs would have a notification obligation;

• once you are registered, you are entitled to notification at least six hours and not more than 14 days in advance of the application; the notification must specify the start time of application “within a 24 hour time period;” notification may be made in writing, by telephone or by personal contact;

• licensed commercial applicators are obliged to consult the registry and give you notice before they apply;

• neighboring homeowners are obliged to notify you 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.

In conjunction with work on the registry, the Board is considering revisions to the flag posting requirements, which now apply only to commercial lawn care companies that spray residential properties. At the September 12 meeting, the Board was inclined to extend that requirement to all homeowners who apply granular products to their lawns. In response to strong opposition from the staff on issues of enforceability, the Board agreed to limit the expansion of the flag posting requirement to commercial companies who apply granular lawn care products, and to applications on publicly owned park lawns or ornamental beds.

Since an earlier version of these revisions already went to public hearing, a further hearing will be held only if, after published notice, five requests for hearing are received.

Organic Grower Gets Unwanted Diazinon Treatment

Two organic growers came home to their North Waterford residence on the afternoon of June 6, 1997, to discover a receipt for a perimeter treatment of their residence with diazinon by Modern Pest Control, a Brunswick exterminator. The receipt had the name and address of a neighbor, who lived two miles away by road, and on an altogether different road. A call to that neighbor revealed that she had contracted with Modern for annual carpenter ant treatments. Although Modern had been treating that neighbor’s residence for the last eight years, a new applicator was on the job that day who was “unfamiliar with the location” and took a wrong turn at an intersection. According to testimony of Modern officer Scott Stevenson, Modern had implemented a system two and a half years ago to check electric meter box numbers before pesticide applications, but that applied only to new, not existing, accounts.

An investigation initiated by the BPC revealed that the diazinon treatment had covered about 1465 sq. feet around the perimeter of the growers’ home, extending out 7 feet and up the walls 3 feet. The applicator denied spraying near an open window in the home, but residue tests were positive inside that window sill. The growers were particularly concerned because they had “hundreds and hundreds” of seedlings, many within 3 or 4 feet of their house, which represented the year’s supply of their own food. Their wellhead also was located under a wooden box adjacent to the house. The applicator admitted spraying around the wellhead box, but denied noticing the seedlings. Subsequent residue tests were negative for the well water and the seedlings, but the grower reported at the BPC meeting that a question about who would pay for the tests (Modern eventually did) delayed the testing and required him to postpone his scheduled planting of the seedlings.

Modern took considerable remedial measures – power washing the home and removing and replacing soil around the home – but the grower stated at the BPC meeting that initially both Modern and the State had “no idea” what to do to remedy the situation. The grower himself “spent a lot of time researching to get information on diazinon and its environmental fate” and eventually located a firm specializing in environmental cleanup. When Modern was reluctant to pay the extra costs to dispose of the contaminated soil as hazardous waste, the grower had to negotiate with the DEP to get a letter of waiver for Modern.

At the BPC meeting on September 12, when the results of the investigation were presented, enforcement officer Henry Jennings stated that spraying the wrong house without authorization was a “fundamental violation of 22 M.R.S.A. 1471, which prohibits ‘the use of pesticides … in a careless, faulty or negligent manner which is potentially harmful to the public health…’” and was grounds for revocation of a license. Attorney Catherine Stevenson on behalf of Modern admitted that the application was unauthorized but denied that it was “negligent, careless or faulty.” She contended that it was performed with instructions on the label, that the road signs were confusing, and that the applicator “had no reason to think he was at the wrong house.” This drew a somewhat astonished reaction from BPC Board members and staff. Alan Lewis replied that this was “a very interesting interpretation of negligence…. This Board has worked very hard to be sure we have on target application of pesticides… You can’t get more off target than this application.” Henry Jennings added that even pesticides applied in accordance with label instructions are “by their very nature potentially harmful.” Board Counsel Thom Harnett observed that confusing signs “do not relieve the applicator of responsibility of knowing where he is applying pesticides.” Jennings noted that commercial applicators were advised in the BPC Communicator, “When in doubt, back out.” The staff was directed by the Board to negotiate a consent agreement with Modern.

Lawn Care Company Repeatedly Violates Notice Requirements

LawnMark by TruGreen-Chemlawn, a Westbrook company, was called to task at the September 12 BPC meeting for repeated violations of its obligations to notify chemically sensitive neighbors of lawn treatments. Both Joan Bragdon, of Scarborough, who suffers from asthma and many allergies, and maintains an organic garden, and Mary Ellen Valentine, of Gorham, who is chemically sensitive and has an application before the Board for a chemical free zone, had requested that LawnMark give advance notification of lawn pesticide treatments within 500 feet of their residences, as they were entitled pursuant to Ch. 22 of BPC regulations. Despite assurances of compliance with their requests, in both cases LawnMark made powered applications onto neighboring properties without giving any notice. In referring the complaints to staff for negotiation of a consent agreement, Board member Alan Lewis noted that “we have to take this failure to notify issue very seriously in light of [recent discussions about the pesticide notification registry]. We’re told, don’t give us more regulations, let us work with what’s there, it’s working, there’s no problem.”

Gillespie Farms Cited for Spray Drift, Worker Protection Violations

Gillespie Farms of North Yarmouth ran into double trouble with the BPC when it chose an herbicide, used primarily in the Midwest on soybeans, to treat its pumpkin crop last June. While labeled appropriate for pumpkins, the Command 4EC herbicide manufactured by FMC corporation cautions on its label that vapors from the herbicide “may cause whitening” on at least 22 varieties of trees, as well as shrubs, vegetable and flower plants. The label also advises that the herbicide should not be applied “within 1,500 feet of Towns and Housing Developments, Commercial Fruit/ Nut or Vegetable Production, Commercial Greenhouses or Nurseries,” or other “desirable plants.” Nonetheless Gillespie Farms applied the herbicide on May 24, 1997, to its pumpkin fields in “close proximity” to five houses, with a tree line of 50-foot oaks bordering the applied field, and a neighbor’s raspberry patch, Russian olive shrubs and forsythia. One neighbor’s property line was 15 feet from the pumpkin field. A complaint about foliage damage by a neighbor led to a BPC inspection on June 19, 1997, which revealed “widespread plant injury … on abutting properties up to 200 feet from the crop areas. Spotty injury was observed as far as 800 feet from the cropland.” Although FMC contends that the foliar damage is “generally temporary in nature,” BPC staff reported that the distinctive white bleaching has persisted months after application.

Lawrence Gillespie declined to identify who had recommended the FMC product to him, but conceded its choice had in retrospect been a mistake: “It’s the first time with us with Command, and it will be the last.” Gillespie argued, however, that the choice of Command 4EC was not unreasonable, even given the warnings on the label. Instructions on labels, Gillespie contended, “go to extremes” just to “protect the manufacturer’s neck in case something goes wrong.” BPC Counsel Thom Harnett retorted that Gillespie’s attitude exhibited “exactly the wrong approach” to reading a label. The label, in effect, Harnett noted, meant “don’t use within 1000 feet of anything.” “The label does not,” Alan Lewis noted, “go to extremes that you are allowed to ignore.” Lewis later commented, however, that this incident raised questions about whether this product would be appropriately used anywhere in Maine. Henry Jennings noted that Command 4EC “has a history around the country that’s quite notorious” for this type of problem, and that it was “quite incredible” that it’s classified as a general use pesticide. Reconsideration of the product’s registration status in Maine was put on the agenda for a later BPC meeting.

While inspecting the foliar damage on June 19, 1997, the BPC inspector followed up on a problem with Federal Worker Protection Standards compliance noted the previous year at Gillespie Farms. In 1996, Gillespie Farms management had conceded that they trained most of their workers on pesticides safety, but not the migrant workers, because, according to Henry Jennings’ report, “they were afraid [the training] would frighten workers and they wouldn’t have them.” The BPC had then issued a letter of warning. On June 19, the BPC inspector questioned some Mexican migrant workers in Gillespie strawberry fields that had been sprayed within 30 days with pesticides. The workers stated, through an interpreter, that they had received no pesticides safety training, although they had been working for two months at the farm. Lawrence Gillespie at the BPC meeting argued that this wasn’t a big problem, because the workers didn’t enter the fields until 28 days after the pesticide application. Alan Lewis responded with great indignation: “I think this is outrageous. I hear for a second time from you that you think you have the option to alter the law at your convenience. This law is for people’s safety.” Both violations were referred to staff for negotiation of a consent agreement.

DeCoster Fined $4000 for Homemade Pest Strips

An enforcement action against DeCoster Egg Farm for requiring two Mexican farmworkers to work up to a month making homemade pest strips without protective gear or pesticide safety instruction has resulted in a negotiated $4000 fine. As reported in the March/May MOF&G, the two employees, Francisco Garibay and Isolina Echeverria, suffered various problems, including headaches, stomach aches, diarrhea, vomiting and dizziness, after being required to dip masking tape into a commercial fly bait containing methomyl, a cholinesterase inhibitor. Both employees were on “light duty” because of previous injuries at the farm. In the settlement papers, DeCoster was allowed to deny any violation for the record, and denied that the employees’ symptoms were consistent with exposure to the pesticide, but did agree to payment of $4000 to the State and that any future on-site manufacture of pest strips would entail training in the employees’ language, and “full body disposable coveralls, impervious gloves; safety glasses with side shields; and North 7700 air purifier respirator with dust mist prefilter and organic vapor cartridges.”

Groundwater Plan Revised, Out for Comment

In response to concerns raised about widespread contamination of wells in Washington and Hancock Counties by the blueberry herbicide hexazinone, the BPC reconvened its Ground Water Planning Committee to review the adequacy of the Generic State Management Plan for Pesticides and Ground Water. In presenting the Committee’s proposed revisions to the Board on September 12, Pesticides Planner Tammy Gould stated that she was “extremely pleased” by the Committee’s work, which “reflects all that we have learned during the last four years, including our experience with hexazinone.” The revised Plan details the method of response to instances of multiple site but low level contamination of groundwater. Where, for example, between 11% and 25% of sampled wells show pesticide detections, among the recommended responses are “modification of pesticide use practices through review and/or revision of IPM strategies,” and to “review, revise and/or develop Best Management Practices for specific pesticide.” Where detections are found at 25% of sampled wells, the BPC forms a Pesticide State Management Plan Advisory Committee to develop a pesticide Special Management Plan. (This is precisely what was done with respect to hexazinone, although at the time this procedure was not spelled out in the Generic State Management Plan. ) The revisions have not departed from the approach of the original Plan, which relies primarily on voluntary measures to prevent groundwater contamination, and which does not have any specific mechanism to ensure funding for an alternative water supply for victims of pesticide contamination. Copies of the revisions are available from the BPC by calling 287-7593; the public comment period ended November 26, 1997.

– Sharon S. Tisher