April 30, 2005
BY SEAN DONAHUE
With bushes just beginning to blossom in downeast barrens, Maine’s wild blueberry season is underway. Relatively little changes from year to year in the cycle that relies on bees to pollinate plants early in the summer and pickers to arrive later in the season to harvest the berries by hand. But this year, Milbridge-based Jasper Wyman & Sons is using a new piece of equipment to perform one of the mechanized tasks in the process. Instead of hiring helicopters and airplanes to perform aerial spraying, this month Wyman’s is using 100- to 120-foot-long boom sprayers that roll across the ground to apply a fungicide called Orbit to cut down the risk of blight striking the bushes later this summer.
The change isn’t entirely the company’s choice. Last fall, environmental and citizens groups accused Wyman’s of violating the federal Clean Water Act because chemicals from its pesticide spraying were drifting into nearby rivers, which are habitat for the endangered Atlantic salmon. In a November meeting with the company, groups led by Portland-based Environment Maine and the Toxics Action Network issued an ultimatum: Stop aerial spraying, or be sued for discharging a pollutant without a permit.
Threats of a similar lawsuit had convinced Cherryfield-based Cherryfield Foods to stop aerial spraying of its blueberry lands in Maine last October. But Wyman’s response during the meeting was to defend aerial spraying, deny that it was a polluter and signal that it would fight the case in court. In April, though, after receiving a letter announcing the environmental groups’ intent to sue, Wyman’s said it, too, would switch to ground spraying this season.
“I had to make a dollars and cents decision. Going into a lawsuit like this was going to cost us a couple hundred thousand dollars, and we’d just been through a bloody and expensive class action suit,” says Ed Flanagan, Wyman’s CEO, referring to the 2003 decision that found large blueberry processors guilty of fixing the price they paid growers for their berries. “There’s only so much of this I have a stomach for.”
Drift effect: Jasper Wyman & Sons’ CEO Ed Flanagan says he’s discouraged that data from drift studies was used against blueberry companies
Despite agreeing to change the company’s practices, Flanagan says the issue is by no means settled. He’s currently canvassing Maine farmers and food companies to raise support for proposed federal rule changes that would explicitly exempt agricultural spraying from the Clean Water Act. Nor is the matter settled for environmental groups, which are still concerned about pesticides and other chemicals ending up in Maine’s waters, and which hope other agricultural operators in Maine take notice of their blueberry campaign. “These two companies agreeing to stop aerial spraying certainly sends a strong message to other agricultural and forestry industries to really evaluate their practices and make sure they are within the letter of the law,” says Matthew Davis, advocate with Environment Maine.
In fact, the confrontation between blueberry growers and environmentalists was merely another skirmish in a longstanding dispute over aerial spraying in Maine. Citizens groups unsuccessfully petitioned the Maine Board of Pesticides Control to ban aerial spraying altogether in the 1990s, and subsequently several towns, including Rangeley, have enacted ordinances to ban aerial spraying locally. Others towns, like Addison in Washington County, failed to get their bans passed. Most recently, the Maine Lobstermen’s Association joined the fight by developing a bill that would prohibit aerial spraying for browntail moth control within 1,000 feet of the shore.
Such local events mirror a pesticide fight that is playing out nationally. Encouraged by two recent cases in Oregon that found pesticide and herbicide sprayers guilty of violating the CWA, environmentalists are pressing the case that agricultural users must apply for discharge permits and undergo rigorous monitoring of pollutant levels in nearby waterways, just as paper mills or other industrial users must under the CWA. Agriculture companies, however, say their operations are already regulated under the Federal Insecticide, Fungicide and Rodenticide Act, which sets conditions for use of chemicals and includes provisions for penalties for improper application. Changing those rules, they say, will cost them time and money.
That fight has left regulators, including the Maine Department of Environmental Protection and the BPC, to determine just which rules are appropriate to apply when examining local disputes. Moreover, even when there is evidence of pesticides or herbicides in the water, there’s no consensus about the levels at which those chemicals pose a threat to humans, animals or other components of the ecosystem. “Aerial spraying is the most controversial pesticide issue in the state of Maine,” says Henry Jennings, chief of compliance with the BPC.
The blueberry disputes
Conflict over aerial spraying has been simmering in Washington County for years, leading up to Addison’s unsuccessful attempt to ban aerial spraying in 2003. Davis of Environment Maine says his group got involved in the dispute in early 2004, after hearing complaints from local residents who claim that chemicals from blueberry spraying were drifting onto their houses or their fields.
The groups soon pinpointed a CWA case as a potential strategy to stop the practice because they had data to back up residents’ claims of chemical drift: Since 1999, Wyman’s and Cherryfield Foods had been helping the Board of Pesticides Control conduct so-called drift studies, in which researchers would monitor sites near fields and collect water samples from rivers shortly after the companies had performed their spraying.
Those studies detected traces of chemicals both drifting in the air and settling in nearby waters. For example, the 2000 drift study found traces of the pesticide phosmet in three sites in the Narraguagus and Pleasant River watersheds, in concentrations ranging from 0.08 to 0.52 parts per billion, according to a BPC report. For that reason, environmentalists claimed the blueberry companies were discharging a pollutant into Maine’s waters without a permit — a violation of the CWA.
But the use of data from the state’s drift studies angered the blueberry companies. After all, says Flanagan, the companies were voluntarily participating in the tests to help determine whether, and where, their spraying was drifting beyond its intended targets. “That’s the thing that is very, very discouraging, and it will have an impact on other businesses,” says Flanagan. “Why am I going to voluntarily participate in tests if I can get sued for it?”
Armed with those results, environmentalists wrote their first letter of intent to sue to Cherryfield Foods — the company that owns or controls the largest amount of blueberry fields in Maine. “There are a couple of reasons for starting with the industry leader,” says Davis. “One, you can have the greatest impact on protecting the environment. Two, in getting them to stop aerial spraying, you may get other companies to stop as well.”
Cherryfield agreed to stop aerial spraying immediately — but that response shouldn’t be surprising, says Cherryfield’s president, Ragnar Kamps. Cherryfield had already bought a boom sprayer and was preparing to switch to ground spraying anyway, he says, and the company had been planting windbreaks and other features to help minimize drift. “I don’t think there’s anything wrong with aerial application at all, but there seems to be this public perception that it is not a good thing,” says Kamps. “I guess for that reason, we felt that the future for farming is to avoid aerial application.”
When Wyman’s received its own letter a couple of months later, the company initially planned to fight the case, in part to help settle those questions about aerial spraying. From an operations standpoint, the company also didn’t want to switch from aerial spraying to ground spraying. It’s not as much a cost issue — aerial spraying actually can be more expensive the ground spraying, says Flanagan — as a flexibility issue. Boom sprayers, which are towed behind tractors, aren’t ideal for treating blueberry barrens, where the bushes are densely packed rather than planted in rows. Boom sprayers also are harder to move from field to field, and don’t offer the flexibility to quickly treat outbreaks of blight that might appear during the season.
But after agreeing to stop aerial spraying, Wyman’s leased two boom sprayers and, like Cherryfield, is using the technique this year. In the meantime, Flanagan has set out to encourage the federal government to clarify the rules covering aerial spraying, which would allow the company to switch back to the technique as it sees fit.
Wyman’s next steps reflect the company’s belief that the entire basis of the threatened lawsuits was flawed. Aerial spraying is not and can not be subject to CWA restrictions, the company contends. To support its point, Flanagan cites a recent statement by the federal Environmental Protection Agency. In February, the EPA released an “interpretive statement” saying that aerial application of pesticides performed according to Federal Insecticide, Fungicide and Rodenticide Act regulations is not subject to the CWA rules, and therefore does not require what’s known as a National Pollutant Discharge Elimination System permit.
Maine DEP also has said that companies performing aerial spraying don’t require a permit. “Our position is similar to EPA’s: As long as the compound is being applied according to FIFRA, the company doesn’t need a permit,” says Andrew Fisk, director of Maine DEP’s Bureau of Land and Water Quality. “And because aerial spraying is done under BPC rules, we’re comfortable with the existing regulatory framework.”
Environmentalists, however, argue that aerial spraying that ends up in waterways clearly fit the definition of “point source” pollution spelled out in the CWA, since it can be traced back to a specific industrial use and point of origin — and they have the two Oregon court decisions to back up that argument. (See “The federal case”.)
At the same time, environmentalists argue that the CWA permitting process would require regulators to determine exactly what constitutes a safe concentration of chemicals like phosmet — which is toxic to both humans and animals — in Maine’s waters. It would be a lengthy and costly process, but advocates say the resulting information would be invaluable. “National pesticide registrations [such as FIFRA] can’t take into account that phosmet, which is highly toxic to fish, may be getting sprayed near a salmon river,” says Josh Kratka, a senior attorney with the National Environmental Law Center in Boston who helped develop the legal argument against Maine’s blueberry companies. “It may be okay to spray out in Nebraska somewhere, but in Maine we may need to take extra precautions.”
Flanagan dismisses those concerns based on the results of the state’s drift studies — concentrations of a few tenths or hundredths of a part per billion are too low to pose a threat to fish, he argues. Maine DEP, which compared those results to laboratory data on the toxicity of the chemicals in certain types of fish and invertebrates (but not salmon), agrees. “We looked at it, and we weren’t seeing compelling information that these [drift study] hits were showing a problem in the environment,” says Fisk.
That type of analysis doesn’t comfort members of the Maine Lobstermen’s Association, however, who recently helped create a bill that would eliminate aerial spraying of insecticide near the shore. Fishermen have seen coastal spraying meant to control browntail moths drift out over the water and coat their boats and equipment, says Patrice McCarron, MLA’s executive director. They fear that the same chemical that kills the browntail moth, Dimilin, might also hurt lobsters because both animals are arthropods — the biological phylum that includes insects and crustaceans.
Though the group doesn’t have data evaluating concentrations of the pesticide in coastal waters, McCarron says the fact that EPA prohibits direct Dimilin application above water bodies indicates that it poses a potential threat to marine life. “It’s just more of a risk than we’d like to see,” says McCarron.
Taking it to Washington
To help settle such local debates, Flanagan is looking to Congress and the Pest Management and Fire Suppression Flexibility Act. The bill, proposed by Rep. Butch Otter (R-Idaho) and Rep. Dennis Cardoza (D-Calif.), would explicitly exempt agricultural pesticide use from the Clean Water Act, and therefore take away the threat of CWA lawsuits as a means to force companies to change their practices. Flanagan planned to travel to Washington, D.C in late May or early June to ask Maine’s congressional delegation to co-sponsor the bill, and hoped to bring with him signatures on a petition he sent to Maine potato growers, forestry companies and other agricultural concerns.
In petitioning those groups for support, he argues that the environmentalists who targeted the blueberry companies will soon be looking to other sectors of the agriculture industry for potential pesticide suits. “It is a battle that needs to be fought, but I can’t afford to be named defendant and fight it all by myself,” says Flanagan.
Environment Maine also is gearing up for a fight on Capitol Hill, contacting its members and supporters and asking them to call Maine’s senators and congressmen and express opposition to Otter and Cardoza’s legislation. Meanwhile, environmentalists agree that they’re not yet done pursuing the pesticide issue. “Aerial spraying is just one part of the much larger issue of pesticide use and its potential effects on the environment — that includes forestry, agriculture, golf courses, Chemlawn and all the rest,” says Kratka of the National Environmental Law Center. “I don’t think we’ve come anywhere near the last of those issues.”
Such talk hasn’t gone unnoticed by other agriculture groups in Maine. Don Flannery, executive director of the Maine Potato Board, says his members have been following the EPA’s recent statements and the proposed legislation in Congress. Rather than signing Flanagan’s petition, though, Flannery says the potato board has been working directly with Maine’s delegation and with the National Potato Council to convey its support for the proposed CWA exemption. The industry doesn’t use aerial spraying, but Flannery feels that other pesticide application techniques will soon be targeted by environmentalists as well. “If we don’t clarify this, and get it straight at the federal level, then everyone will continue to look down and ask, ‘Are they doing ground application correctly?’” says Flannery. “We need an overall solution to the problem.”
To environmentalists, though, exempting a group of chemicals and users from the Clean Water Act is a problem, not a solution. The move may open the door to a gradual weakening of the laws that have resulted in a dramatic improvement of Maine’s rivers over the past 30 years, says Davis. “I’d rather not have to fight to protect the Clean Water Act,” says Davis. “It’s done a lot of good things, but there’s still long way to go to meet its original intent.”
Even a ruling from Congress might not put the issue to rest, however. As long as two of Maine’s signature industries — lobsters and blueberries — remain on opposite sides of the issue, and disputes arise between agricultural operators and their neighbors, questions about pesticide use in Maine are likely to remain up in the air.
The federal case
Two lawsuits in Oregon form the basis for environmentalists’ claims that the Clean Water Act regulates pesticide use
The death of 92,000 juvenile steelhead trout in an Oregon river in 1996 touched off a dispute about pesticide use that’s made it all the way to Congress — and may rewrite the 33-year-old Clean Water Act.
Upon discovering the fish kill in Bear Creek, environmentalists traced the cause back to an aquatic herbicide that was used by the Talent Irrigation District to control vegetation in its irrigation canals. Water from those canals — carrying the herbicide — had escaped into Bear Creek, ultimately killing the fish. Headwaters, an Ashland, Oregon-based environmental group, sued TID for violating the CWA for discharging a pollutant into the creek without a permit.
After losing the initial case, Headwaters won its 2001 appeal in the Ninth Circuit Court of Appeals, which said that the application of herbicide into canals constituted a point-source pollution discharge. Such discharges are only permitted under the CWA with a special permit. The following year, environmentalists won another victory when the same court ruled that aerial spraying of pesticides in national forests in Oregon and Washington also violated the CWA, because those chemicals were landing in rivers and other water bodies.
Following those examples, environmental groups nationwide began looking for other cases of pesticides and herbicides ending up in the water. That approach singled out Maine blueberry growers, whose use of aerial pesticide spraying resulted in some of the chemicals drifting into nearby rivers. As a result, Environment Maine and other groups threatened to sue two growers under the Clean Water Act. “The fact that there’s a pollutant getting directly into water means the CWA comes into effect,” says Matthew Davis, an advocate for Environment Maine. Blueberry growers and other agricultural companies don’t agree. They maintain that pesticide and herbicide use is regulated by the Federal Insecticide, Fungicide and Rodenticide Act — which spells out application techniques and restricted uses for approved chemicals. As long as a company applies its chemicals in accordance with FIFRA, they say, then it should not have to worry about violating another set of federal regulations.
Now, a measure in Congress known as the Pest Management and Fire Suppression Flexibility Act would formalize that position by revising the CWA to specifically exempt agricultural users from needing a discharge permit. “From an agricultural standpoint, the question is, ‘Who’s your boss?’” says Ed Flanagan, CEO of Milbridge-based blueberry company Jasper Wyman & Sons, who supports the bill. “Congress passed the Clean Water Act, but the Environmental Protection Agency and state Department of Environmental Protection are charged with controlling agriculture via the FIFRA act.”
Wyman and other Maine agricultural supporters, including the Maine Potato Board, are lobbying Maine’s congressional delegation to support the proposed new rules. Meanwhile, environmental groups such as Environment Maine are urging their members and supporters to lobby the delegation to preserve the Clean Water Act, rather than allowing exemptions for certain types of chemicals.
— Sean Donahue