Neighbors Right to Know Debated
An inquiry to the Board of Pesticides Control (BPC) nearly one year ago --- which is still unanswered --- led to a protracted discussion at the BPC’s April 29, 2000, meeting in Augusta. Joyce Babb owns the Dirigo Mobile Home Park in Weeks Mills, Lincoln County. As such, she operates a public drinking water supply under the federal Safe Drinking Water Act, and is required to test her water for contaminants. Babb has a neighbor, Andrew Williamson IV, who owns County Fair Farm in Jefferson, raising corn, squash, and pumpkins within one-half mile from Babbs well. In June 1999, Babb asked Williamson for a list of pesticides he was using on his fields. She told him she wanted the information so that she could narrow down the field of potential contaminants to test for in the well water, saving substantial expense. Williamson refused to give her that information. She then contacted the Department of Human Services, who referred her to the Board of Pesticides Control. Twice last summer and fall, BPC inspector Ray Connors visited the farm and spoke with Williamson, asking to inspect his records. On both occasions Williamson refused. The matter was referred to the Attorney General’s office, and an assistant attorney general’s phone call to Williamson also failed to yield any information. Williamson could not be reached for comment, but he reportedly advised the BPC investigator that he felt divulging information on pesticides use was a violation of his right against self-incrimination, and that he would be inviting lawsuits by cooperating.
Farmers are required to keep records for two years of all pesticides applications, and BPC inspectors have a right to show up at a farm at any reasonable time, unannounced, to inspect those records. Babb, contacted by phone following the meeting, said she is still waiting for information, and has not yet had the well water tested. Henry Jennings, BPC enforcement director, put the matter on the BPC’s April agenda, seeking guidance from the Board on the extent to which BPC staff should respond to inquiries from the public about what pesticides their neighbors have used.
The issue engendered a lengthy discussion. Andrew Berry suggested that, in this instance, it was probably "time to get the battering ram out." Board member Michael Dann argued that the provisions of Ch. 28 for advanced notification of adjacent landowners of pesticide applications should suffice in most instances. Others pointed out, however, that these provisions only apply to property within at most 500 ft., not necessarily far enough to ensure against well water contamination. They also only apply prospectively, not providing a mechanism for discovering past pesticide applications. Board chair Alan Lewis noted that the staff occasionally gets inquiries from people looking to buy property and wanting to know what pesticides have been used on surrounding the property. "Is that not appropriate," Lewis queried, "to know what chemicals have been used so you know it wouldn’t cause you a problem?" Lewis stated that he felt the Board was sometimes remiss in not recognizing the rights of adjacent landowners not to have their property contaminated. Where a public water supply, in an effort to cut down on costs of testing, makes a reasonable request for information, refusal to supply that information was outrageous in Lewis’ opinion: "It absolutely boggles my mind. "
Vaughan Holyoke agreed that getting information to facilitate testing for a public water supply was "not an issue," but expressed concern that BPC staff availability to answer inquiries from the public could be abused: "I have a problem that someone else would jump at the opportunity to raise hell." Jennings stated that the BPC gets about a dozen requests for this type of information a year, and "I wouldn’t put any of them off as a mission to get incriminating information...I cant think of any that I would call frivolous or purely to harass."
The Board eventually advised Jennings that it would "rely on staff to use their professional discretion" in responding to this type of inquiry. Staff should cooperate fully with any governmental body asking for information about pesticide applications on property. Private inquiries may require a written request to trigger an onsite inspection, after information has been refused in verbal inquiries. Members of the public will be directed to first attempt to obtain the information directly from the farmer. Staff may refuse to respond to inquiries it deems frivolous, and refer the matter to the Board.
With respect to the Babb/Williamson matter, Jennings stated that he intended to further pursue efforts to obtain the records from Williamson, who is licensed by the Board as a private pesticide applicator. He is consulting with the Attorney General’s office regarding alternative remedies under the law.
BPC Prioritizes "Discretionary" Tasks
Following its March Board meeting, BPC members were polled on their priorities for so-called "discretionary" tasks, including compliance with the 1997 Act to Minimize Reliance on Pesticides. A summary of the poll submitted to the April 28 Board meeting listed the top four items, in declining order of importance, as follows: (1) "decide on list of projects that might be funded from current cash reserves;" (2) "increase efforts in area of ‘minimize reliance on pesticides;’" (3) "seek assistance from [Agriculture] Department to address clerical needs;" and (4) "convene stakeholders’ group of blueberry growers and aerial applicators to develop BMPs [Best Management Practices] to address frequent drift/odor complaints." [No reference was made in the last item to including representatives of the public as stakeholders on that issue].
The Board has appointed two advisory committees to address, respectively, the record keeping and policy implications of the Act to Minimize Reliance on Pesticides, and the Policy Committee, chaired by Jo D. Saffeir, had its first meeting on April 28. MOFGA is represented on that Committee by Sharon Tisher, who presented the committee with a list of seven detailed proposals for moving forward on pesticide reduction, including initiating a program for substantial cash grants to farmers who can document pesticide reduction as a result of adoption of new IPM methods, or conversion of a portion of their acreage to organic production. Other items the Board suggested the Committee consider included developing rules on contracts for pest control services (prohibiting, for example, multiyear contracts without regard to need), developing rules on sale of multi-packs of pesticide products in ‘big box’ retailers, and establishing best management practices for IPM in public buildings. The meetings of the Committee are open to the public, and the next meeting will be on June 9, 2000. Members of the public who would like to be informed of these meetings, or have input on pesticide reduction, should contact Bob Batteese at the BPC, 287-2731, or forward their ideas to Sharon Tisher, 581-3158, Sharon_Tisher@apollo.umenfa.maine.edu.
The BPC also noted that still on its longer range agenda is the task of developing rules, as recommended by the Indoor Pesticide Use Advisory Committee, on pesticide use in apartment buildings, and on use of a logo/notice for public buildings that have been treated with pesticides, including disinfectant cleaning agents, to alert chemically sensitive individuals.
Department Seeks Suspension of Data Collecting Requirements
An annual review of the BPC by the Joint Standing Committee on Agriculture, Conservation, and Forestry of the Maine Legislature focused on on-going problems in the BPC’s compliance with data collection requirements of the 1997 Act to Minimize Reliance on Pesticides. The Act requires the BPC to publish an annual report containing the "quantity of product, sorted by the name and U.S. E.P.A. registration number, of all pesticides sold in the prior year, with the data further sorted by sector of use wherever possible." The BPC has produced two annual reports under the Act, which constitute close to 50 pages of items by brand name, not consolidated by active ingredient, with no bottom line on total pesticides sold in Maine, either statewide or by sector of use. The report is accordingly useless to identify any trends in pesticide use in the state. Other states, including Massachusetts, are able to compile statewide data by active ingredient, at least for agricultural sales, and the Maine BPC as recently as 1995 compiled a useable report for agriculture and forestry sales. The BPC maintains, however, that staff losses and increased responsibilities preclude development of more meaningful data. At the BPC meeting of February 24, 2000, Deputy Agriculture Commissioner Linda Smith Dyer recommended that the BPC request that the reporting requirement be suspended for two years. The Joint Standing Committee endorsed that recommendation, and on March 13 forwarded a request to the Senate and House for a legislative suspension, while the BPC is "searching for an acceptable method of data collection that will yield the type of information needed to assess pesticides use by sector."
Ag Department Pesticides in the Schools Initiative
An initiative by Ag Department entomologist and Integrated Pest Management [IPM] specialist Dr. Kathy Murray to address pesticide use in schools is proceeding apace. Last January, with the help of an EPA grant, all 168 Maine public schools districts received a detailed questionnaire about their pest problems, their use of pesticides, and their notification procedures. An extraordinary 146 school districts, or 88 %, responded, and Murray is working on a report summarizing the responses. As a consequence of the questionnaire, 63 school districts signed up for IPM training, and the EPA grant paid for two contractors to conduct that training "starting immediately," according to Murray. For now, the training will focus on outdoor, turf and ornamental, pesticide applications. The Cooperative Extension has been retained to develop written training materials for schools on outdoor Integrated Pest Management. Murray is also working with representatives of several New England states to develop standards for IPM in indoor pest control.
Members of the public who have concerns about school pesticide use should contact Kathy Murray at 287-7616, or e-mail at Kathy.Murray@state.me.us.gov
Hope Critical Pesticide Control Area Petition
Tim Crabtree is applying the fungicide Orbit to the blueberry fields surrounding 13-year-old Codey Brown’s home in Hope, while the BPC still deliberates on Codey’s family’s petition for establishment of a Critical Pesticide Control Area (CPCA) to protect the chemically sensitive child from further pesticide exposure. [See March-April 2000 MOF&G] What was initially a bare 4/3 majority in favor of establishing a CPCA in the first ever petition to the BPC based on human health concerns (the Board has twice before created a CPCA to protect fish), now appears to be a unanimous sentiment of the Board in favor of invoking its rule to protect Codey. However, the extent to which the result of the lengthy process will truly protect Codey is uncertain. The Board early on reached a consensus that any rule would not totally ban outdoor agricultural pesticide applications, as the Brown family had requested. Rather, it would seek to oversee and restrict pesticide applications in the half mile area around Codey’s house, while allowing the Crabtrees to continue to cultivate blueberries according to conventional, pesticide-based, non-organic methods.
There was initially some sentiment on the part of the Board to expand the CPCA beyond the half mile requested by the Brown family. Last July 1999, after the Brown petition had been filed, members of the family had adversely reacted to helicopter spraying of the organophosphate Sniper2E (azinphos-methyl) on Tim Crabtree’s property just outside of the half mile radius. Crabtree admitted at the Board’s February 18 meeting that when the property manager Allen’s Blueberries had asked about notifying the Browns of the aerial organophosphate application, Crabtree had decided not to notify them, to let sleeping dogs lie. Expanding the area of protection would affect additional property owners, however, and require renoticing of a rule and a new public hearing, which would be likely to preclude an effective rule for the 2000 growing season. The Browns did not support further delay.
Following discussion at the Board’s March 24, 2000, meeting, the Board issued a proposed regulation for the CPCA, drafted by staff and endorsed in principle by all members of the Board (except Andrew Berry, who is recused from the matter because his company, Maine Helicopters, was involved in some of the pesticides applications near the Brown property). The Board invited written comments on the revised rule, through May 8. The Board declares a CPCA for the half-mile radius around the Brown home, and directs that no outdoor pesticide application shall be made within the CPCA without a Pesticide Management Plan (PMP) approved by the Board. The details of chemicals used and application procedures are left to the PMP, to be developed by the Cooperative Extension with input from the farmers affected. The Board, however, establishes in the proposed rule four basic conditions that must be incorporated in the PMP:
"(a) Aerial application of other than granular formulations is
The rule also provides for advance notification to the Browns of all applications within the CPCA. Although not specified in the rule, the Board indicated that it intended to monitor the Browns’ property to assess the success of the PMP in preventing drift and groundwater contamination.
The Browns have submitted a detailed response to the proposed rule. The Browns noted that condition (a) "would preclude all aerial applications of insecticides, organophosphates or carbamates, and as such constitutes a significant improvement over previous practice." The rule would only permit aerial spraying of dry, granular hexazinone, a herbicide. However, the Cooperative Extensions blueberry specialist Dave Yarborough, who worked on a draft PMP which was submitted to the Board at its April 28 meeting, appears bent on substantially eroding that restriction. Yarborough’s proposed PMP would permit aerial spraying of the organophosphate Imidan on certain of the Crabtrees’ fields, where he felt backpack spraying was infeasible because of the terrain. The Browns are strenuously opposed to that modification. The Board was to take up discussion of that issue at its May 19, 2000, meeting in Bangor, and hopes to finally enact a rule at its following June 9 meeting.
BPC Stands to Lose its Two Public Members
The BPC is facing a substantial loss in advocacy for the public interest in pesticide regulation. Board Chair Alan Lewis, an ecology professor at the University of Maine Machias, and member Jo D. Saffeir, Executive Director of the Maine Outdoor Heritage Fund, are the two members of the BPC who are selected as members of the public with a demonstrated interest in environmental protection. Both have Board terms that expire in July 2000, and neither currently plans to serve past that expiration. To Bob Batteese’s knowledge, as of May 1, the process of finding replacements for these public members had not begun. Batteese was even unaware that Lewis had, following the April 28 Board meeting, declared his intention not to continue to serve. Members of the Board serve without compensation, and are appointed by the Governor and approved by the Senate. There is no formal procedure for submitting nominations for the positions, but Batteese suggested that it was unlikely the Governor would nominate someone who was not previously approved by the Agriculture Commissioner. Therefore, Batteese suggested that members of the public interested in making nominations for these positions, or nominating themselves, should submit resumes to Commissioner Robert Spear, Department of Agriculture, Conservation and Forestry.