Pesticide and Fertilizer Task Force — Portland, ME
Date: 2017-01-31

1. Agenda 1/31/2017

 Documents:

 AGENDA 1_31_2017.PDF

2. Memo To Task Force Members 1/31/2017

 Documents:

 MEMO 1 31 2017.PDF

3. Pesticide Draft 4

 Documents:

 DRAFT 4.PDF

1. Agenda 1/31/2017

 Documents:

 AGENDA 1_31_2017.PDF

2. Memo To Task Force Members 1/31/2017

 Documents:

 MEMO 1 31 2017.PDF

3. Pesticide Draft 4

 Documents:

 DRAFT 4.PDF
 City of Portland
 Pesticide and Fertilizer Task Force
 January 31, 2017
 5:30 PM
 Room 24

 AGENDA




 1. Review and approve minutes

 2. Continue discussion of draft ordinance

 3. Discuss next steps for the Task Force

 4. Adjourn


Please refer to the committee web page for background documents:

http://www.portlandmaine.gov/1774/Pesticide-and-Fertilizer-Task-Force
 Executive Department
 Jon P. Jennings, City Manager

To: Councilor Mavodones and members of the Pesticide and Fertilizer Task Force
From: Troy Moon, Sustainability Coordinator
Re: Questions from December 21 meeting
Date: 1/26/2017
_______________________________________________________________________________

During our meeting on December 21, 2016, members of the Pesticide and Fertilizer Task Force
recommended specific changes to the draft ordinance presented by staff for discussion. We have
incorporated these changes, which you will find highlighted in the text of Draft 4.

Task Force members also asked specific questions during the meeting. Danielle West-Chuhta and I
have reviewed those questions and attempt to provide responses below. Please note that in most
cases the questions relate to decisions that need to be made by the Task Force as part of their
recommendations to the Sustainability and Transportation Committee. Members should plan to
offer specific language and/or answers around these or other issues during the next meeting.

 Questions



 Question: Where did the definition of commercial agriculture come from?

 Answer: It was a definition from an example ordinance in California.

 Question: In the definition of pest, why do we cite the state statute instead of the federal
 law?

 Answer: To be consistent with the regulation of pesticides in the State of Maine.

 Question: Does it make sense to use the definition of pesticide used in the South
 Portland ordinance instead?

 Answer: The Task Force may decide to use the South Portland definition if that is their
 preference.

 Question regarding section 34-3. Pesticide Application near Water Bodies: Why
 prohibit use of pesticides within 75’ of a water body instead of 250’ from a water body? Is
 this related to shoreland zoning?

 Answer: Shoreland zoning regulations do not discuss pesticide applications. They primarily
 limit cutting of vegetation in proximity to water bodies. The City defines the Shoreland Zone
 as:
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 The land area located within two hundred fifty (250) feet, horizontal distance, of the
 normal high water line of any river; within two hundred fifty (250) feet, horizontal
 distance, of the upland edge of a coastal wetland, including all areas affected by tidal
 action; within 250 feet of the upland edge of freshwater wetland; or within seventy-five
 (75) feet, horizontal distance, of the normal high water line of a stream.

 The South Portland ordinance restricts pesticide applications within 75’ of a water body. Of
 course, the Task Force may choose to recommend that distance or a different one.

 Question regarding 34-4. Pest Management sections (2) and (3): As worded, this it is not
 clear whether someone would need to try all possible products determined to be “minimal
 risk” before moving on to other non-synthetic products. Should this be clarified by indicating
 a reasonable effort? Should there be a set time frame established to determine whether the
 attempted treatments are successful or not?

 Answer: This is a policy decision for the Task Force, which may choose to recommend both
 a reasonable effort and particular time frames if it chooses to.

 Question regarding 34-4. Pest Management (3) iii: How are the safety, aesthetic, or
 economic thresholds determined? Should there be a reference to BMPs of some sort?

 A search of the Cooperative Extension website and review of the Maine Board of Pesticides
 Control website suggests there are no general thresholds established and there do not
 appear to be BMPs regarding thresholds. Tolerance of pests depends on the use of the
 affected land. People managing high performance athletic fields may have different
 standards than vegetable gardeners or people taking care of their lawn. Given this, we don’t
 recommend a citation.

 Question regarding 34-6. Public Notification: Is posting signs adequate notification?
 Should there be requirements to notify nearby properties verbally or in writing?

 Answer: The Task Force may recommend additional measures beyond posting if it chooses
 to, but posting signs is what is currently required by State law and in South Portland.

 Question regarding 34-6 (a). Public Notification: Where would homeowners or other non-
 licensed applicators get signs?

 Answer: The City could create signs if signs are required by ordinance but there may be cost
 implications associated with such a requirement.

We look forward to discussion of these issues and hope to make significant progress toward a
recommendation to the Sustainability and Transportation Committee.




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 PESTICIDE DRAFT ORDINANCE #34



WHEREAS, the State of Maine is one of only seven states, and the
 District of Columbia, that allows local governments to
 restrict the use of pesticides, and so this is an
 opportunity for the City to affect positive change;
 and

WHEREAS, the State of Maine allows for municipalities through
 their home rule authority to enact ordinances dealing
 with municipal affairs pursuant to 30-A M.R.S.A.
 §3001; and

WHEREAS, the City of Portland wishes to protect the quality of
 Casco Bay and other waterways that support the
 economic vitality of local fisheries and the working
 waterfront; and


WHEREAS, the City of Portland recognizes that healthy soils
 serve as the foundation for vibrant ecosystems and
 pest-resistant plant life; and

WHEREAS, the City of Portland wishes to promote land care
 practices that promote the development of healthy
 soils to minimize the need to apply pesticides to
 control unwanted pests; and

WHEREAS, the City of Portland also recognizes that there may
 still be a need to manage pests to protect public
 health and safety, wildlife, our environment and City
 assets; and

WHEREAS, many synthetic pesticides are harmful to humans, pets,
 wildlife, including threatened and endangered species,
 soil microbiology, plants, and natural ecosystems; and

WHEREAS, many citizens desire to be protected from exposure to
 pesticides in the air, water or soil that inevitably
 could results from chemical drift and contaminated
 runoff; and



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WHEREAS, the use of pesticides known or suspected to cause
 serious health problems is not necessary to grow and
 maintain green lawns and ornamental landscapes, given
 the availability of viable alternative practices and
 products; and

WHEREAS, a growing number of communities and municipalities
 including the City of Portland are embracing a
 precautionary approach to the use of pesticides in
 order to adequately protect people and the environment
 from their harmful effects:

NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
 PORTLAND That the Portland City Code is hereby amended
 by adding a section, to be numbered Chapter 34,
 Sections 34-1 to 34-11, which said Sections read as
 follows:


 Pesticide Use Ordinance


34-1. Definitions.

 When used in this Chapter, the following words, terms and
phrases shall have the following meanings.
 Application: the spraying, pouring, spreading and applying
of any and all pesticides over property in order to mitigate,
among other things, weeds, pests or plants.

 Commercial Agriculture: the production of crops for sale,
crops intended for widespread distribution to wholesalers or
retail outlets and any non-food crops.


 Environmental Professional: Individual that has formal
education in the field(s) of environmental science,
environmental engineering, ecology, natural resources
management, and/or other similar field of study.
 FIFRA: Federal Insecticide, Fungicide, and Rodenticide Act;
7 U.S.C. §136 et seq.; as amended from time to time.
 FIFRA Minimum Risk List: Pesticides that have active
ingredients which are deemed minimum risk and therefore do not
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have to register with the Environmental Protection Agency. The
Minimum Risk List is available on the web site of the
Environmental Protection Agency (EPA) at: epa.gov/minimum-risk-
pesticides/active-ingredients-allowed-minimum-risk-pesticide-
products
 Invasive Species: a species that is not native to a
particular eco-system and whose introduction does or is likely
to cause economic or environmental harm or harm to human health.
 Licensed Applicator: An applicator of pesticides who is
licensed by the State of Maine Board of Pesticides Control.
 Natural, Organic, or Non-synthetic: A substance or mixture
of substances that are derived from mineral, plant, or animal
matter and do not undergo a synthetic process as defined in the
Organic Foods Production Act, 7 U.S.C. §6502(21) as amended from
time to time.
 Pest: Any insects, rodents, nematodes, fungi, weeds, and
other forms of terrestrial or aquatic plant or animal life or
viruses, bacteria, or other microorganisms, this definition
specifically excludes viruses, bacteria or other microorganisms
on or in living human beings or other living animals, that have
been declared to be a pest under 7 M.R.S. §610(1)(A) as amended
from time to time.
 Pesticide: Any substance or mixture of substances intended
for preventing, destroying, repelling or mitigating any pest;
any substance or mixture of substances intended for used as a
plant regulator, defoliant, or desiccant; and any nitrogen
stabilizer. Herbicides, fungicides, insecticides and/or
rodenticides are considered pesticides.
 Privately Owned Land: All land and water bodies, including
airspace and all plants, animals, structures, and/or buildings,
within the limits of the City of Portland which are owned by
private persons or entities.
 Publicly Owned Land: All land and water bodies including
all airspace and all plants, animals, structures, and/or
buildings, within the limits of the City of Portland which are
owned by a governmental entity including, but not limited to,
the City of Portland.
 Retailer: Any and all persons, entities, stores, shops,
sales outlets or other establishments, located within the limits

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of the City of Portland that offers for sale, displays or sells
pesticides, among other things, for personal or commercial at-
home use.
 Retail store: Any retailer, including, but not limited to,
garden centers or shops, store or establishment located within
the limits of the City of Portland that are self-service markets
located in a building, and which sell or offer for sale
pesticides for personal or commercial at-home use.
 Synthetic: A substance or mixture of substances that is
formulated or manufactured by a chemical process or by a process
that chemically changes a substance extracted from naturally
occurring sources.
 Water body: Any great pond, river, stream or tidal area,
coastal or shore land freshwater wetland as these terms are
defined in Chapter 14 of the City of Portland Code of
Ordinances.
34-2. Applicability.
 This Chapter shall apply to any and all outdoor non-
synthetic or synthetic pesticide use or applications for turf,
landscape and outdoor pest management, which are conducted on
any privately or publicly owned land.

34-3. Pesticide Application Near Water Bodies.

 The use or application of any non-synthetic or synthetic
pesticides on privately or publicly owned land shall not occur
within seventy-five (75) feet of any water body or wetland.

34-4. Pest Management.

 (a) It is hereby the policy of the City of Portland to
prioritize land care practices that do not use pesticides to
control pests. In circumstances where pesticides must be used,
the minimum amount of pesticides needed to effectively control
pests in all areas of application on privately and publicly
owned land within the City shall be used. Any pest management
activities within the City shall be conducted in accordance with
the following procedures:

 1. Non-pesticide management tactics shall be used first.
 These include mowing high, leaving lawn clippings in
 place, top dressing compost, and proper irrigation.;
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 2. If non-pesticide management tactics prove ineffective,
 pesticides determined to be “minimum risk pesticides”
 pursuant to the Federal Insecticide, Fungicide, and
 Rodenticide Act (FIFRA) and listed in 40 C.F.R. §
 152.25(f)(1-6), as may be amended from time to
 timepesticides listed on the FIFRA Minimum Risk List
 may then be used;

 3. If the pesticides listed on the FIFRA Minimum Risk
 List prove ineffective, other non-synthetic pesticides
 may be used so long as the following steps are taken:

 i. Monitor for pest presence or conditions conducive
 to a pest outbreak;

 ii. Identify the pest specifically;

 iii. Determine that the pest population exceeds
 acceptable safety, economic or aesthetic
 threshold levels (except in instances where pests
 threaten public or ecological health);

 iv. Utilize control measures that have been
 demonstrated to be practicable, effective and
 affordable; and

 v. A written document describing how the licensed
 applicator treated the problem is kept and
 submitted annually in the month of ____________
 to the Pesticide Oversight Committee.
 Information in the written document shall include
 the type of pest treated for, steps taken prior
 to treatment, and all information required by the
 Maine Board of Pesticides Control Pesticide
 Applicator Log; and

 4. Synthetic pesticides shall be used only as a last
 resort. If synthetic pesticides must be used, such
 use shall be allowed only if a waiver is granted for
 such use by the City Manager or his or her designee as
 described in §34-8.

34-5. Pesticide Oversight Committee.


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 (a) There is hereby created the following Pesticide
Oversight Committee (the “Committee”).

 (b) The Committee shall be comprised of seven (7) members,
including two (2) licensed applicators, two (2) environmental
professionals, and three (3) at-large resident representatives
who are neither licensed applicators or environmental
professionals. All members shall be residents of the City of
Portland and be appointed by the City Council for staggered two
(2) year terms.

 (c) The Committee shall be chaired by one (1) member,
approved through a majority vote of the members of the
Committee.

 (d) The Committee shall meet at least five (5) times
annually.

 (e) The Committee shall have the following duties:

 1. Create, develop and provide in conjunction with
 the City Manager or his or her designee
 educational materials for retailers, retail stores
 and the public, which, among other things,
 describe and educate about safe pesticide
 application and use, as well as the harms of and
 the existing alternatives to pesticides that are
 available for use;

 2. Develop and recommend action threshold guidelines
 for common pests and invasive species; and

 3. Provide the Sustainability and Transportation
 Committee with:

 i. An annual report which includes, among other
 things, a summary of its educational
 outreach; recommendations on any necessary
 amendments to this Chapter; number of
 waivers granted by the City Manager or his
 or her designee; and comprehensive data
 taken from the written documents provided by
 Licensed Applicators about the use of
 pesticides within the City of Portland
 including, but not limited to:

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 a. The amount of pesticides used on
 privately or publicly owned land in the
 City of Portland;

 b. The reasoning for such use of
 pesticides; and

 c. The specific pesticides that were used.

34-6. Public Notification.
 If synthetic pesticides are used or applied as the result
of the granting of a waiver pursuant to §34-8, the following
posting requirements shall be complied with by the licensed
applicator.
 (a) A warning sign shall be posted in compliance with this
Chapter. These signs must be posted before application
activities commence and left in place for at least forty-eight
(48) hours after actual application or until expiration of the
restricted entry interval or reentry time indicated by the
pesticide label, whichever is longer;

 (b) All signs shall be at least five inches high and four
inches wide in size. Signs shall be attached to the upper
portion of a dowel or other supporting device so that the bottom
of the sign is not less than 12" and the top of the sign is not
more than 48" above the ground. The signs shall be of rigid,
weather resistant material substantial enough to be easily read
for at least 48 hours when placed outdoors;

 (c) All signs must be light colored (white, beige, yellow
or pink) with dark, bold letters (black, blue or green). They
shall have lettering that is conspicuous and clearly legible;

 (d) The sign must include the following:

 1. The word “CAUTION” in 72 point type;

 2. The words “PESTICIDE APPLICATION” in 30 point type or
 larger;



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 3. The Maine Board of Pesticides Control designated
 symbol;

 4. Any reentry precautions from the pesticide labeling;

 5. The name and telephone number of the entity making the
 pesticide application;

 6. The date and time of the application; and

 7. A date and/or time to remove the sign; and

 (e) All signs shall state the chemical and trade name of
the pesticide, the date to be applied, the length of time to
remain off the treated area as indicated by the pesticide label,
and a phone number of the responsible party for more
information.

 These requirements are in addition to any requirements that
may also apply to State of Maine licensed applicators subject to
the Maine Board of Pesticides Control rules regarding public
notification.

34-7. Education.
 (a) The City Manager or his or her designee, in
coordination with the Committee, shall prepare and publish
materials including, but not limited to signs for retailers or
retail stores as described in (c) below, which are designed to
educate City residents and the public about the role of
pesticides in the local environment. These materials may also
include information about the following:

 1. City pesticide and pest management practices;

 2. Resources maintained and available from the Maine
 Board of Pesticide Control including, but not limited
 to, resources related to enforcement of State laws and
 regulations overseen by the Board; and

 3. Local, State or Federal laws and regulations regarding
 pest management activities.

 (b) These materials may be conveyed to the public by and
through the following means:
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 1. The internet including the City’s website;

 2. Social media;

 3. Television;

 4. News releases and events;

 5. Tax bill inserts;

 6. Brochures or other written materials;

 7. Posters or signs;

 8. Workshops, trainings, demonstration projects; and/or

 9. Any other method deemed appropriate by the Committee.

 (c) Any and all retailers and/or retail stores shall post
these materials and/or signs in the location of a retail store
where pesticides are located or offered for sale.
34-8. Waivers.
 (a) In situations that threaten the public health and
safety or for the control of invasive species that pose a threat
to the environment, persons may apply to the City Manager or his
or her designee for a waiver from the provisions of this
ordinance prior to the use of a prohibited product, including,
but not limited to, synthetic pesticides, or prior to the
conduct of a prohibited application.


 (b) The waiver application shall be filed with and on a
form prescribed by the City Manager or designee, and shall
include the following: the proposed location(s); details on the
timing(s) of use, substance(s) and amounts to be applied;
date(s) of application; management plan that excludes broadcast
and preemptive applications; a pest identification and threshold
report; and reason for requesting the use/application of a
prohibited pesticide. In order to approve a waiver application,
the City Manager or his or her designee must find that all of
the following criteria are met:
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 1. A situation exists that threatens the public health
 and safety and/or where invasive species pose a threat
 to the environment;

 2. The applicant has carefully evaluated all alternative
 methods and materials;

 3. The applicant will, to the greatest extent practical,
 minimize the impact of the application on abutting
 properties; and

 4. The grant of the waiver will not be detrimental to the
 public health, safety or welfare.

 (c) The City Manager or his or her designee shall act
within five (5) business days of receipt of a completed waiver
application.

 (d) In approving any waiver application, the City Manager
or his or her designee may prescribe conditions and safeguards
as are appropriate. The waiver decision of the City Manager or
designee shall be in writing, with copies provided to the
applicant, the Committee, and the Sustainability Coordinator.
The decision of the City Manager or his or her designee shall be
final.
34-9. Exemptions.
 The following materials, locations and uses are exempt from
the provisions of this Chapter:
 (a) Materials:
 1. Pet supplies; shampoos, tick and flea treatments;

 2. Disinfectants, germicides, bactericides, miticides,
 and virucides;

 3. Insect repellant;

 4. Rat and rodent control supplies;

 5. Swimming pool supplies;

 6. General use paints, stains, and wood preservatives and
 sealants; and/or
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 7. Aerosol sprays.

 (a) Locations:

 1. Riverside Golf Course.

 i. Any and all playing and non-playing surfaces
 and/or greens.

 2. Hadlock Field.

 i. Any and all playing surfaces in or on Hadlock
 Field.

 3. Right-of-ways

 i. Any and all land, on, over, under, abutting or
 along a City of Portland or State of Maine street
 or right-of-way located in and/or through the
 limits of the City of Portland.

 (b) Uses:
 1. of pesticides mandated by state or federal law or an
 order or decision from a state or federal agency;
 2. in commercial agriculture;
 3. in health and safety applications; and
 4. in applications to reduce or eliminate invasive
 species.
 5. in protection of buildings and structures from damage
 from pests.
34-10. Enforcement and Remedies.

 (a) The City Manager or his or her designee shall have the
authority to enact rules and regulations in order to implement
the provisions of this Chapter;

 (b) This Chapter may be enforced by the City Manager or
his or her designee; and


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 (c) Any violation of this Chapter may be considered a
civil infraction and may be enforced pursuant to Portland City
Code, Chapter 1, Section 1-15 or by providing education to a
person or entity that has violated a provision of this Chapter.

34-11. Severability.
 To the extent any provision of this Chapter is deemed
invalid by a court of competent jurisdiction, the balance of the
Chapter that shall remain is valid.




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