T&E Item 3
June 15,2015
Worksession 3
MEMORANDUM
June 11,2015
TO:
FROM:
SUBJECT:
Transportation, Infrastructure, Energy
7~rnVironment
Committee
Josh Hamlin, Legislative
Attorne~"
Non-Essential
Worksession 3:
Bill 52-14, pesJ$des - Notice Requirements
Pesticides - Prohibitions
Expected Attendees
Kelly Love, Urban Nutrient Management Specialist,
Maryland Department of Agriculture
Zack Kline, AOLCP, LICM, Owner
A.I.R. Lawn Care
Jody Fetzer, Green Management Coordinator
M-NCPPC Montgomery Parks
Chip Osborne, President
Osborne Organics, LLC
Paul
C.
Chrostowksi, Ph.D., QEP
Environmental Chemist, CPF Associates, Inc.
Bill 52-14, Pesticides - Notice Requirements - Non-Essential Pesticides - Prohibitions,
sponsored by then Council
Vice
President Leventhal and COWlcilmembers EIrich, Riemer, Floreen,
and Navarro was introduced on October 28. Public hearing on the Bill began on January 15, and
was continued on February 12. The Transportation, Infrastructure, Energy and Environment
(T&E) Committee has held worksessions on March 16 and March 30.
An
additional T&E
Committee worksession will be scheduled at a later date.
Bill 52-14 would:
(1) require posting of notice for certain lawn applications of pesticide;
(2) prohibit the use of certain pesticides on lawns;
(3) prohibit the use of certain pesticides on certain County-owned property;
(4) require the County to adopt an integrated pest management program for certain
County-owned property; and
(5) generally amend County law regarding pesticides.
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Background
Bill 51-14
Bill 52-14 includes provisions related to the application of pesticides on County-owned
and private property, and requires the County to adopt an Integrated Pest Management (IPM) plan.
IPM is a method of pest control which minimizes the use of chemical pesticides by focusing on
pest identification, monitoring and assessing pest numbers and damage, and using a combination
of biological, cultural, physical/mechanical and, when necessary, chemical management tools.
1
Council President Leventhal has explained the purpose of this Bill in his October 22, 2014
memorandum to Councilmembers (See
©
14-17).
2
Bill 52-14 will:
1) Require the posting of notice when a property owner applies a pesticide
to
an area of lawn
more than 100 square feet, consistent with the notice requirements for when a landscaping
business treats a lawn with a pesticide;
2) Require the Executive to designate a list of "non-essential" pesticides including:
• all pesticides classified as "Carcinogenic to Humans" or "Likely to Be Carcinogenic to
Humans" by the U.S. EPA;
• all pesticides classified by the U.S. EPA as "Restricted Use Products;"
• all pesticides classified as "Class 9" pesticides by the Ontario, Canada, Ministry of the
Environment;
• all pesticides classified as "Category 1 Endocrine Disruptors" by the European
Commission; and
• any other pesticides which the Executive determines are not critical to pest
management in the County.
3) Generally prohibit the application of non-essential pesticides to lawns, with exceptions for
noxious weed and invasive species control, agriculture and gardens, and golf courses;
4) Require the Executive to conduct a public outreach and education campaign before and
during the implementation of the Bill;
5) Generally prohibit the application ofnon-essential and neonicotinoid pesticides to County­
owned property; and
6) Require the County to adopt an Integrated Pest Management plan.
Bill 52-14 has an expiration date of January 1,2019.
http://www.epa.gov/oppOOOOllfactsheets/ipm.htm
2
For additional background on this Committee's recent consideration of pesticides and pesticide use in Montgomery
County, see the packet for the September 9, 20 13 discussion at:
http://www6.montgomerycountymd.gov/contentlcouncil/pdf/agend
a/cm/20 131130909/20130909
TE3.pdf. Video of
the discussion is available, beginning at 22: 10, at:
http://montgomerycountymd.granicus.comlMediaPlayer.php?view id=6&clip id=5704.
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2015 legislation in the Maryland GeneralAssembly
The Maryland General Assembly, in its 2015 session, considered two bills related to
pesticides which have objectives similar to Bill 52-14. The bills would have:
(1)
imposed labeling
requirements and future sale and use restrictions on neonicotinoid pesticides; and (2) prohibited,
except in emergencies, the application of lawn care pesticides to certain areas used by children
under the age of 18 years.
House Bill
605,3
cross-filed with Senate Bill
163,
would have established a labeling
requirement for any seed, plant material, nursery stock, annual plant, bedding plant, or other plant
that has been treated with a neonicotinoid pesticide
4
and would have established restrictions,
effective January
I,
2016, on the sale and use of neonicotinoid pesticides. The future restrictions
would have: (1) limited the use ofneonicotinoid pesticides to applicators certified by the Maryland
Department of Agriculture (MDA), and farmers using the pesticide for agricultural purposes; and
(2) required a seller of neonicotinoid pesticides to be permitted by MDA to sell restricted-use
pesticides. Neither bill advanced out of its respective committee assignment.
House Bill 995
5
would have generally prohibited the application of certain pesticides on
the grounds of certain child care centers, schools, and recreation centers and on certain other
recreational fields. The prohibition would have applied to pesticides registered by the EPA and
labeled pursuant to the FIFRA for use in lawn, garden, or ornamental sites and areas. A person
would be able to apply for an emergency exemption from the prohibition when necessary to
eliminate an immediate threat to human health. House Bill 995 did not advance out of committee.
Public Hearings and Correspondence
The Committee held public hearings on the Bill on January
15
and February 12, with 38
people testifying in January, and
30
speaking in February. In addition to the public hearing
testimony, the Bill has been, and continues to be, the subject of a huge amount of written
correspondence. The testimony and correspondence have coalesced around several recurring
themes, which frame major issues for the Committee to examine as it considers the Bill. These
themes include: (1) existing regulation of pesticides, particularly at the State and federal level is,
or is not, sufficient; (2) chemical pesticides pose, or do not pose, serious threats to human health;
(3) pesticides threaten, or do not threaten, the health of pollinators and the Chesapeake Bay
watershed; and (4)
it
is, or is not, possible or feasible to maintain lawns and playing fields without
the use of chemical pesticides.
3
4
http://mgaleg.maryl and.gov/webmga/frm Main.aspx?id=h b0605&stab=O1&pid=bi IJpage&tab=subj ect3&ys=20 15RS
The required label would read:
"WARNING: Bees are essential to many agricultural crops. This product has been treated with
neonicotinoid pesticides, found to be a major contributor to bee deaths and the depletion ofthe bee
popUlation."
http://mgaleg.maryJand .gov/webmga/frmMain.aspx?id=hb0995&stab=O1&pid=bi Ilpage&tab=subj ect3&ys=20 15RS
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March 16 Worksession
The T&E Committee held a worksession on Bill 52-14 on March 16. At that worksession,
the Committee heard from regulators working at the County, State, and federal levels of
government.
6
Representatives of the County's Department of Environmental Protection, the
Maryland Department of Agriculture, and the U.S. Environmental Protection Agency described
the roles oftheir respective agencies in the regulation ofpesticides in the County. A second panel
at the March 16 worksession consisted of physicians with expertise in environmental health and
toxicology, and an environmental chemist specializing in environmental and human risk
assessment, with a focus on pesticides. The physicians, Dr. Jerome Paulson and Dr. Lome
Garrettson, informed the Committee of their views of the human health risks, particularly to
children, of exposure to chemical pesticides. The chemist, Dr. Stuart Cohen, asserted that the
testing protocols used by the EPA are sufficient to determine that registered pesticides are
generally safe when used as directed.
March 30 Worksession
In
its March 30 worksession, the Committee heard from experts in environmental impacts
ofpesticides and turf management, as well as public- and private-sector landscaping professionals.
Two faculty members at the University of Maryland, Dr. Dennis vanEngelsdorp, an Assistant
Professor of Entomology and Dr. Mark Carroll, an Assistant Professor of Plant Science and
Landscape Architecture, spoke about pesticides and pollinator health and attenuation of pesticides
applied to turf, respectively. Dr. Carroll directed the Committee to the Maryland Fertilizer Law,
and its implications for compost application. The Committee also heard from representatives of
the County Parks Department and the Director of Grounds and Environmental Management at the
Maryland Soccerplex, about their current turf management practices. Chip Osborne, an expert in
natural turf management, described how
turf
can be maintained without the use of chemical
pesticides. Finally, the Committee heard from four landscaping professionals working in the
County, using both traditional and chemical pesticide-free methods, about their practices and
results.
Issues to Be Discussed at this Worksession
As with the two prior sessions, this worksession is geared toward providing the Committee
with information it needs to fully consider the Bill. Issues for discussion at this worksessions
include issues raised since the Bill was introduced: (1) is the County preempted under State law
from implementing a ban on the lawn application of certain pesticides?: (2) what are the
implications of the State's fertilizer law to pesticide-free lawn care?; (3) what are the specific
criteria which lead to a particular pesticide's designation as "non-essential?; and (4) how are other
jurisdictions working to reduce or minimize pesticide use?
The packet for the March 16 worksession is at:
http://www.montgomerycountvrnd.gov/COUNCI UResources/Files/agenda/cm/20 151150316/20] 50316 TE I. pdf
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State Preemption of a County Ban on Certain Pesticide Applications'
By letter to the Honorable Kirill Reznik dated Aprill, 2015 (©38-43), Assistant Attorney
General Kathryn M. Rowe of the Office of Counsel to the General Assembly provided advice on
whether State law would preempt Montgomery County Bill 52-14. Ms. Rowe's view is "that the
general ban on application of non-essential pesticides may well be preempted, but that other parts
most likely would not be." Ms. Rowe sent a very similar letter, dated May 21, 2015, to Delegate
Kumar Barve (©44-48), with a somewhat more forceful conclusion.
In
the May 21 letter, which
contained essentially the same analysis as the April 1 letter, Ms. Rowe concluded:
"It
is my view
that, to the extent that the bill bars application of a non-essential pesticide to a lawn, subject to
certain exceptions, it is likely to be found to be preempted."s
As a general proposition, Council staffconcurs with the view that "a court could conclude"
that the County is preempted under State law from prohibiting the cosmetic use of pesticides on
lawns, but believes that such a conclusion is far from certain. Indeed, given the existing Maryland
case law, as well as the legislative history of the State pesticide law, staff believes that a very
strong argument against implied preemption can be made. As such, staff does not agree with Ms.
Rowe's modified conclusion, that preemption of a County prohibition ofthe application of certain
pesticides in certain places is "likely."
Staffs view is based on a review of case law where Maryland courts have applied the
implied preemption doctrine, as well as significant aspects ofthe legislative history of Maryland's
pesticide law, including failed attempts in 1992, 1993 and 1994 to amend the law to expressly
preempt local pesticide regulation. A finding of implied preemption in this instance would go
beyond what Maryland appellate courts have held in local preemption cases, and would mark a
departure from the "concurrent power" doctrine adhered to since 1969. Further, the failed attempts
at express preemption in the early 1990s seem to be evidence of the General Assembly's
understanding that the law was not preemptive, and an expression of intent not to preempt more
restrictive local regulation of pesticides. While acknowledging the risk of an adverse
determination, staff believes that the Council is on solid ground proceeding with the Bill's current
provisions.
A full memorandum on the issue ofimpJied preemption and BiJ152-l4 is at ©26-37.
8
On the basis of Ms. Rowe's conclusion in the April 1 letter to Delegate Reznik, Councilmember Berliner sent a letter
dated May 28, 2015 to Attorney General Brian Frosh (©49-50), inquiring as to whether certain other measures would
be preempted under State Jaw. These measures included:
(1)
additional reporting requirements for pesticide
applicators in Montgomery County; (2) requirement of a document signed by customers that identifies the reported
health risks associated with pesticides, acknowledges that organic alternatives exist, and directs (or not) a lawn care
provider to adhere to IPM practices; (3) a requirement that condominium and homeowners' associations have an
affirmative vote of the unit or homeowners before applying pesticides; and (4) additional reporting requirements for
pesticide applications to areas where children are frequently present. By letter dated June 5, 2015 (©5l-52), from
Adam D. Snyder, Chief Counsel, Opinions and Advice, the Office of the Attorney General respectfully declined
Councilmember Berliner's request.
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Maryland Fertilizer Law
At the March 30 worksession, Dr. Mark Carroll of the University of Maryland mentioned
the impact the Maryland Commercial Fertilizer Law
9
on the use of compost, in the context of the
Glenstone project. Compost is often used as a soil additive to improve plant health and diminish
reliance on chemical pesticides. However, compost often contains certain nutrients that are limited
by the Fertilizer Law, and these limits may have the effect of severely restricting compost
applications that are an important part of a pesticide-free lawn care program.
IO
Maryland substantially amended its fertilizer law in 2011, with key provisions taking effect
in October, 2013 aimed at protecting the Chesapeake Bay from harmful excess nutrient runoff.
The amendments targeted runoff from urban sources such as golf courses, parks and athletic fields,
businesses, and residential lawns. The law regulates both the labelling and sale of lawn fertilizer
products and the application of fertilizer by licensed and certified professional applicators. Dr.
Carroll raised an issue related to the law's limits on the amount of soluble nitrogen and
phosphorous contained in fertilizer applications, and the prospect that these limits would preclude
the use of compost as it was used at Glenstone. The law's key provisions related to fertilizer
applications
by
professionals
include:
• Lawn fertilizer may not be applied to impervious surfaces and frozen ground;
• Fertilizer may not be applied within 15 feet of waterways, unless applied with a drop
spreader, rotary spreader with deflector, or targeted spray liquid
(in
which case, the buffer
area is 10 feet);
• Lawn fertilizer may not be applied between December 1 and March 1, and only water
soluble nitrogen may be applied to lawns between November 16 and December 1 (at a
maximum rate ofYl pound per 1,000 square feet;
• Professionals must take soil tests for each new customer and then once every three years;
• A single application must not exceed 0.9 pounds total nitrogen per 1,000 square feet and
0.7 pounds of soluble nitrogen per 1,000 square feet, unless "enhanced efficiency
fertilizer"
11
is being used.
• Each application of natural organic
12
or organic
13
fertilizer must not exceed more than 0.25
pounds of phosphorous per 1,000 square feet with an annual maximum of 0.5 pounds of
phosphorous per 1,000 square feet.
MD Agriculture Code
§§
6-201 through 6-224.
10
Responsible Industry for a Sound Environment (RISE), the national trade association representing manufacturers,
fonnulators, distributors, and other industry leaders involved with pesticides, submitted a document illustrating the
potential problem for organic lawn care. The document is at ©53, and infonnation about RISE can be found at:
9
http://www.pestfacts.org/
"Enhanced efficiency fertilizer means a fertilizer product that increases plant uptake and decreases the potential of
nutrient loss to the environment, including gaseous loss, leaching, or runoff, when compared to an appropriate
reference fertilizer product." MD Agriculture Code
§
6-201(i).
12
"Natural organic fertilizer" means "a fertilizer product that is derived from either a plant or animal product
containing carbon, and one or more elements, other than hydrogen or oxygen, that are essential for plant growth," but
"does not include a fertilizer product that contains synthetic materials or materials that are changed in any physical or
chemical manner from their initial state, except by physical manipulation, including drying, cooking, chopping,
grinding, shredding, or pelleting." MD Agriculture Code
§
6-201(u).
13
"Organic fertilizer" means a fertilizer product that is derived from either a plant or animal product containing carbon,
and one or more elements, other than hydrogen or oxygen, that are essential for plant growth," and "includes a fertilizer
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• Enhanced efficiency fertilizer applications must not exceed 2.5 pounds total nitrogen per
1,000 feet per year, must not result in an application of more than 80% of the annual
recommended rate for total nitrogen established by the University of Maryland, and must
have a release rate not more than 0.7 pounds of nitrogen per 1,000 square feet.
Speakers:
• Kelly Love, an Urban Nutrient Management Specialist with the Maryland Department of
Agriculture (MDA), is expected to attend this worksession, and will be able to discuss the
key provisions of the law, and its implications with regard to compost use. MDA
background materials are at ©54-61.
• Chip Osborne, ofOsborne Organics, and Zack Kline ofA.I.R. Lawn Care are also expected
to attend, and will describe the law's implications from the standpoint of pesticide-free
lawn-care practitioners. Mr. Osborne's work includes the maintenance of the Maryland
State House grounds, and Mr. Kline operates a County-based business providing lawn care
to both commercial and residential properties.
Mr.
Kline's materials are at ©62-63 and
Mr.
Osborne's background materials are at ©64-73.
• Jody Fetzer, Green Management Coordinator for Montgomery Parks will share the Parks
Department's experience and perspective on this issue.
"Non-essential Pesticides" Under
Bill 52-14
Bill 52-14 would require the Executive to establish a list of "non-essential pesticides" that
would be subject to the use restrictions contained in the Bill. The list of non-essential pesticides
would be composed of: (1) all pesticides classified as "Carcinogenic to Humans" or "Likely to Be
Carcinogenic to Humans" by the U.S. EPA; (2) all pesticides classified by the U.S. EPA as
"Restricted Use Products;" (3) all pesticides classified as "Class 9" pesticides by the Ontario,
Canada, Ministry of the Environment; (4) all pesticides classified as "Category 1 Endocrine
Disruptors" by the European Commission; and (5) any other pesticides which the Executive
determines are not critical to pest management in the County. Each of the sub-lists which make
up the list of non-essential pesticides is discussed below.
EPA Carcinogenicity List
14
EPA reviews each pesticide chemical for its carcinogenic potential to humans when it is
proposed for registration. When assessing possible cancer risk posed by a pesticide, EPA
considers how strongly carcinogenic the chemical is (its potency) and the potential for human
exposure. The pesticides are evaluated not only to determine if they cause cancer in laboratory
animals, but also as to their potential to cause human cancer. For any pesticide classified as a
potential carcinogen, the risk would depend on the extent to which a person might be exposed
product that contains no more than 50% synthetic materials and in which more than half the sum of the guaranteed
primary nutrient percentages is derived from organic materials, or materials that are changed in a physical or chemical
manner from their initial state." MD Agriculture Code
§
6-20 I(w).
14
http://npic.orst.edu/chemicals evaluated. pdf
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(how much time and to what quantity of the pesticide). The factors considered include short-term
studies, long-term cancer studies, mutagenicity studies, and structure activity concerns.
IS
The hierarchy of classifications for carcinogenic potential,16 from highest to lowest, are:
1.
2.
3.
4.
5.
Carcinogenic to Humans
Likely to be Carcinogenic in Humans
Suggestive Evidence of Carcinogenic Potential
Inadequate Information to Assess Carcinogenic Potential
Not Likely to be Carcinogenic to Humans
As mentioned above, "non-essential pesticides" under Bill 52-14 include pesticides designated as
"Carcinogenic to Humans" or "Likely to Be Carcinogenic to Humans."
A pesticide may be classified as "Carcinogenic to Humans" used when all of the following
conditions are met:
• there is strong evidence ofan association between human exposure and either cancer or the
key precursor events of the pesticide's mode of action but not enough for a causal
association, and
• there is extensive evidence of carcinogenicity in animals, and
• the mode(s) of carcinogenic action and associated key precursor events have been
identified in animals, and
• there is strong evidence that the key precursor events that precede the cancer response in
animals are anticipated to occur in humans and progress to tumors, based on available
biological information.
A designation as "Likely to be Carcinogenic to Humans" is appropriate when the weight of the
evidence is adequate to demonstrate carcinogenic potential to humans, but does not reach the
weight of evidence for a designation of "Carcinogenic to Humans." A broad range of evidence
may support a "Likely to be Carcinogenic to Humans," and may include:
• a plausible (but not definitively causal) association between human exposure and cancer,
in most cases with some supporting biological, experimental evidence, though not
necessarily carcinogenicity data from animal experiments;
• positive tests in animal experiments in more than one species, sex, strain, site, or exposure
route, with or without evidence of carcinogenicity in humans;
It should be noted that there is sometimes inconsistency between EPA's classification and that of other evaluating
entities, often because of the cyclical nature of these evaluations. For instance, EPA has classified glyphosate as
"Group E - Evidence of Noncarcinogenicity for Humans," while the World Health Organization's International
Agency for Research on Cancer has recently classified it as "probably carcinogenic to humans." See ©74-77. EPA's
evaluation was done in 1991, and the "Group E" classification is no longer used, but is generally equivalent to the
lowest-risk current classification, "not likely to be carcinogenic to humans."
16
More than one classification may be used when a pesticide's effects differ by dose or means of exposure. For
example, a pesticide may be "Carcinogenic to Humans" by one means of exposure, but "Not Likely to Be
Carcinogenic" by a different means ofexposure by which it
is
not absorbed. Also, a pesticide could be "Likely to Be
Carcinogenic" above a specified dose but "Not Likely to Be Carcinogenic" below that dose.
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• a positive twnor study that raises additional biological concerns beyond that of a
statistically significant result, for example, a high degree of malignancy, or an early age at
onset;
• a rare animal twnor response in a single experiment that is assumed to be relevant to
humans; or
• a positive twnor study that is strengthened by other lines of evidence, for example, either
plausible (but not definitively causal) association between human exposure and cancer or
evidence that the agent or an important metabolite causes events generally known to be
associated with tumor formation (such as DNA reactivity or effects on cell growth control)
likely to be related to the twnor response in this case.
EPA Restricted Use Products
l7
A pesticide that, when applied in accordance with its directions for use, has a higher
risk/probability to cause unreasonable adverse effects on the environment, or that the acute dermal
or inhalation toxicity of the pesticide presents a hazard to the applicator and/or other persons, is
designated as a "restricted use product.,,18 Restricted use pesticides make up about a quarter of
total pesticides used and may be applied only by, or under the direct supervision of, trained and
certified applicators. These products not available to the general public.
Ontario "Class
9"
Pesticides
l9
The province of Ontario, Canada has regulated pesticides pursuant to its "Pesticides Act"
since 1990. The Pesticides Act includes a classification system for pesticides to regulate the sale,
use, transportation, storage, and disposal of pesticides in Ontario.
In
2008, the Ontario legislature
passed the "Cosmetic Pesticides Ban Act,,,20 which added a new classification ("Class 9") of
pesticide ingredients, the use and sale of which is generally prohibited. In general, pesticides
cannot be used for cosmetic purposes on lawns, vegetable and ornamental gardens, patios,
driveways, cemeteries, and in parks and school yards. Class 9 pesticides include 119 substances
that are active ingredients in lawn and garden pesticides, and is part of a scheme that includes 11
classifications. 21 The classifications are as follows:
Class
1
pesticides are products intended for manufacturing purposes;
Class 2, 3 and 4 pesticides are restricted or commercial products;
Class 5, 6 and 7 pesticides are domestic products intended for household use;
Class
8
pesticides are banned for sale;
Class 9 pesticides are banned for use unless used under an exception to the ban;
Class 10 pesticides are allowed for use under the promotion of public health or safety
exception; and
17
18
http://www
.epa.
gOY
I
opprdOO 1Irup/rupreport-sec3 -update. pdf
FIFRA sec. 3(d)(l)(C); 7 U.S.C.A.
§
136a{d)
19
http://docs.fiIes.ontario.caldocuments/4325/class-9-pesticides-march-27-20 15.pdf
20
http://news.ontario.calene/en/2009/03/ontarios-cosmetic-pesticides-ban.html
21
Ontario is currently considering a proposal to specifically classifY and regulate neonicotinoid pesticides by adding
a 12th class of pesticides.
See:
http://news.ontario.caleneienl20 15103/proposed-new-requirements-for-neonicotinoid­
Qesticides-to-protect-poll inators.html
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• Class 11 pesticides are biopesticides or "lower-risk" pesticides generally allowed for
cosmetic uses under the ban.
European Commission "Category
1
Endocrine Disruptors
,,]]
The endocrine system is a collection of glands that produce hormones that regulate the
body's growth, metabolism, and sexual development and function. The hormones are released into
the bloodstream and transported to tissues and organs throughout the body.
Endocrine disruptors
are chemicals that may interfere with the body's endocrine system and produce adverse
developmental, reproductive, neurological, and immune effects in both humans and wildlife.
23
The European Commission has commissioned a series of studies, and established a list of
priority substances for further evaluation oftheir role in endocrine disruption. 24
An
initial list was
assembled from lists of 'suspected endocrine disruptors' published by various organizations,
supplemented by a search of the scientific literature to identify reports
and
papers describing
effects suggestive of endocrine disrupting activity for specific chemicals. Multiple studies were
conducted, and clear evidence ofendocrine disrupting activity was noted for 194 substances, which
were assigned Category 1 status. 25
It
should be noted that the majority ofthese substances are not
used as pesticides. The City of Takoma Park's Safe Grow Ordinance bans cosmetic use of
Category 1 endocrine disruptors, and its current list of pesticides subject to this restriction is at
©94.
Speaker:
• Dr. Paul Chrostowski, an environmental chemist familiar with all of the above lists and
pesticide risk assessment generally, will discuss with the merits and possible drawbacks of
relying on the lists in determining what pesticides should be deemed "non-essential. Dr.
Chrostowski's brief resume and background materials are at ©78-93.
Pesticide Reduction Approaches in Other Jurisdictions
Due to the fact that the vast majority of states have preempted local jurisdictions from
regUlating pesticides, there are only two examples oflocal jurisdictions that have banned pesticide
use on public
and
private property26: Takoma Park, Maryland27 , and Ogunquit, Maine. 28 Several
local jurisdictions have enacted legislation or adopted administrative policies related to pesticide
http://ec.europa.eulenvironment/chemicals/endocrine/pdflbkh report.pdf#page=128
23
http://www.niehs.nih.gov/healthltopics/agents/endocrine/
24
http://ec.europa.eulenvironment/chemicals/endocrine/strategy/substancesen.htm
25
The designations of chemicals on the Jist are: Category 1 - evidence ofendocrine disrupting activity in at least one
species using intact animals; Category 2 - at least some in vitro evidence of biological activity related to endocrine
disruption; and Category 3 - no evidence of endocrine disrupting activity or no data available.
26
http://www.telegraph.co.uk!news/worldnewsll0959057/End-of-the-pelfect-American-Iawn-Campaigners-call-for­
pesticide-ban.htm1
27
http://www.takomaparkmd.gov/safegrow
28
http://ogunguitconservation. org/ ogunq uitcollservation .orgiPesticide Ordinance Overview.hun
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22
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reduction on public property, integrated pest management (!PM), and pesticide free parks.29
Locally,
in
addition to Takoma Park, the District of Columbia enacted the Pesticide Education and
Control Amendment Act Of 201230 which restricts the application of certain pesticides near
waterways, at schools, day care centers and on District property, and imposes certain reporting and
data collection requirements.
San Francisco's IPM lawH represents a good example of a local pesticide reduction
program implemented
in
a jurisdiction preempted from regulating pesticide use on private
property. The San Francisco law, enacted in 1996, requires an IPM program be used, preference
be given to nonpesticide methods of pest control, and permits the use of only "reduced risk,,32
pesticides on City property. San Francisco's Environment Commission also provides information
to residents on safer pest control methods that might be available, including desired contract
language and techniques, as well as pesticide-related illnesses.33 California State law requires
Homeowners' Associations to provide notice to HOA members and residents of pesticide
applications. 34
Beyond !PM, several jurisdictions have implemented pesticide-free parks on public
property. Seattle
has
maintained 14 parks in the city without the use of any pesticides since 2001,
and is expanding the program to include eight more parks and about 25 more acres, for a total of
22 parks and about 50 acres. These pesticide-free parks are distributed geographically throughout
the city and are being used by Parks to help develop and test sustainable maintenance practices
and design guidelines. Pesticide-free parks are part ofSeattle's overall pesticide reduction plan.
35
This packet contains:
Bi1152-14
Legislative Request Report
Council Vice President Leventhal Memo
Fiscal and Economic Impact statement
Council Staff Memorandum re: Preemption
Letter from
K.
Rowe to
K.
Reznik
Letter from K. Rowe to K. Barve
Letter from Councilmember Berliner to AG Brian Frosh
Letter from
A.
Snyder to Councilmember Berliner
RISE-Making Sense of Lawn Care without Herbicides
Panelist materials:
Kelly Love (MDA)
-Consumer Information, Commercial Fertilizer Applications
29
Circle #
1
13
14
18
26
38
44
49
51
53
54
http://www.beyondpesticides.org/lawn/activistl
30
The signed Act is at:
http://lims.dccouncil.us/Downloadl26399/BJ
9-0643-SignedAct.pdf. The Committee report is
at: http://lims.dccouncil.uslDownloadl2594/B19-0643-COMMITTEEREPORT.pdf
31http://www.amlegal.com/nxtlgateway.dIIlCalifomialenvironmentlchapter3integratedpestmanagementprogram?f=te
mplates$fn=default.htm$3.0$vid=amlegal:sanfrancisco ca
32 http://www.sfenvironment.orglsites/defaultlfiles/fliers/files/sfe reduced risk pesticide list 2015 finaldraft.pdf
33 http://www.sfenvironment.orglsites/defaultlfileslflierslfiles/sfe th reducedriskpesticidelist.pdf
34
http://hoalaw.tinnellylaw.com/2014/01Ihoa-compliance-with-califomia.html
35
http://www.seattle.gov/envirolllnentltrees-and-green-space/pesticide-reduction
11
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-Maryland's Lawn Fertilizer Law
-How to Fertilize Your Lawn Responsibly
-Fertilizers and the Chesapeake Bay
ZackKline
- Biochar information
Chip Osborne
-Issue paper: Compost
-Fertility and Turfgrass Nutrition,
An
Organic Perspective
WHO IARC Monographs Volume 112
Panelist materials:
Paul Chrostowski
-Brief resume
-Letter to Councilmember Berliner, September 13, 2014
-Technical Support Document, July 5,2013
Takoma Park, List ofEC Cat. 1 Endocrine Disruptors
56
58
60
62
64
68
74
78
81
83
94
F:\LAW\BILLS\1452 Pesticides\T&E Memo 061515.Docx
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Bill No.
52-14
Concerning: Pesticides
Notice
Requirements
Non-essential
Pesticides - Prohibitions
Revised: October 22, 2014
D~ftNo.~9
__
~
__
~~~
______
Introduced:
October 28,2014
Expires:
April 28, 2016
Enacted: _ _ _ _ _ _ _ _ __
Executive: ---'-_ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: January
1,
2019
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council Vice President Leventhal and Councilmembers EIrich, Riemer, Floreen, and Navarro
AN ACT
to:
require posting of notice for certain lawn applications ofpesticide;
prohibit the use ofcertain pesticides on lawns;
prohibit the use of certain pesticides on certain County-owned property
require the County to adopt an integrated pest management program for certain County­
owned property; and
(5) generally amend County law regarding pesticides.
By amending
Montgomery County Code
Chapter 33B, Pesticides
Sections 33B-l, 33B-2, 33B-3, 33B-4, 33B-5, 33B-6, and 33B-7
By adding
Montgomery County Code
Chapter 33B, Pesticides
Articles 2,3,4, and 5
Sections 33B-8, 33B-9, 33B-1O, 33B-l1, 33B-12, and 33B-13
Boldface
(1)
(2)
(3)
(4)
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
'" '"
'"
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill byameiulment.
Existing law uru:iffected by hill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No.
52-14
1
Sec. 1.
Sections 33B-1, 33B-2, 33B4, 33B-5, 33B-6 and 33B-7 are
2
3
4
5
amended, and Sections 33B-8, 33B-9, 33B-10, 33B-11, 33B-12, and 33B-13 are
added as follows:
ARTICLE 1. General Provisions
33B-1. Definitions.
In this [chapter] Chapter:
Agriculture
means the business, science, and art of cultivating and managing
the soil, composting, growing, harvesting, and selling sod, crops and livestock,
and the products of forestry, horticulture and hydroponics; breeding, raising, or
managing livestock, including horses, pOUltry, fish, game and fur-bearing
animals, dairying, beekeeping and similar activities, and equestrian events and
activities.
Custom applicator
means a person engaged in the business of applying
pesticides.
Department
means the Department of Environmental Protection.
Director
means Director of the Department of Environmental Protection[,] or
the Director's designee.
Integrated pest management
means
~
process for managing pests that:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
ill
ill
uses monitoring to determine pest injury levels;
combines biological, cultural, mechanical, physical, and chemical
tools and other management practices to control pests in
!!
safe,
cost effective,
and
environmentally
sound
manner
that
22
23
24
contributes to the protection ofpublic health and sustainability;
ill
uses knowledge about pests, such as infestations, thresholds, life
histories, environmental requirements, and natural control of
pests; and
25
26
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BILL
No. 52-14
27
28
ill
uses non-chemical pest-control methods and the careful use of
least-toxic chemical methods when non-chemical methods have
been exhausted or are not feasible.
29
30
31
32
33
Larvicide
means
~
pesticide designed to kill larval pests.
Lawn
means an area of land, except agricultural land, that is:
(1)
[Mostly] mostly covered by grass, other similar herbaceous
plants, shrubs, or trees; and
(2)
[Kept] kept
trim
by mowing or cutting.
~
34
35
36
Lawn
includes an athletic playing field other than
not include
~
garden.
Neonicotinoid
means
nicotine.
~
golf course.
Lawn
does
37
38
39
class of neuro-active pesticides chemically related to
Neonicotinoid includes acetamiprid, clothianidin, dinotefuran,
imidac1oprid, nitenpyram, nithiazine, thiacloprid, and thiamethoxam.
Non-essential pesticide
means
pesticide under Section 33B-4.
Pest
means an insect, snail, slug, rodent, nematode, fungus, weed, or other
form of plant or animal life or microorganism (except a microorganism on or
in a living human or animal) that is normally considered to be a pest or defmed
as a pest by applicable state regulations.
~
40
41
pesticide designated as
S!
non-essential
42
43
44
45
46
47
48
49
Pesticide
means a substance or mixture of substances intended or used to:
(1)
(2)
(3)
prevent, destroy, repel, or mitigate any pest;
be used as a plant regulator, defoliant, or desiccant; or
be used as a spray adjuvant, such as a wetting agent or adhesive.
50
51
However,
pesticide
does not include an antimicrobial agent, such as a
disinfectant, sanitizer, or deodorizer, used for cleaning that is not considered a
pesticide under any federal or state law or regulation.
52
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SILL
No.
52-14
53
54
Private lawn application
means the application of
~
pesticide to
~
lawn on
property owned
by
or leased to the person applying the pesticide.
Private
lawn application
does not include:
55
56
57
58
59
ill
ill
ill
applying
~
pesticide for the purpose of engaging in agriCUlture;
applying
~
pesticide around or near the foundation of
~
building
for purpose of indoor pest control;
applying
~
pesticide to
~
golf course or
turf
farm.
60
61
Vector
means an animal, insect, or microorganism that carries and transmits an
infectious pathogen into another organism.
[33B-4.] 33B-2. Signs with retail purchase of pesticide.
A person who sells at retail a pesticide or material that contains a pesticide
must make available to a person who buys the pesticide or material that contains a
pesticide:
(a)
[Notice] notice signs and supporting information that are approved by
the [department] Department; and
(b)
[The] the product label or other information that the federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) [, 7 U.S.C. 136 et seq.,]
requires for sale of the pesticide.
The Department must enforce this Section and must
annually
inspect each
person who sells at retail
~
pesticide or material that contains
~
pesticide.
[33B-S] 33B-3. Storage and handling of pesticides.
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
*
[33B-6] 33B-4. Regulations.
(a)
*
*
The [County] Executive must adopt regulations to carry out this Chapter
under method (2).
77
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BILL
No. 52-14
78
79
(b)
The Executive must include in the regulations adopted under this
[section1 Section the minimum size or quantity of pesticide subject to
[section 33B-4] Section 33B-2.
80
81
W
The Executive must include in the regulations adopted under this
Section
~
82
83
list of non-essential pesticides.
The list of non-essential
pesticides must include:
84
85
86
87
88
89
ill
all pesticides classified as "Carcinogenic to Humans" or "Likely
to Be Carcinogenic to Humans"
Qy
the U.S. Environmental
Protection Agency;
ill
ill
@
all pesticides classified
Qy
the U.S. Environmental Protection
Agency as
~
"Restricted Use Product";
all pesticides classified as
~
"Class 9" pesticide
Qy
the Ontario,
90
91
92
93
94
95
96
Canada, Ministry of the Environment;
all pesticides classified as
~
"Category
1
Endocrine Disruptor"
Qy
the European Commission; and
ill
@
any other pesticides which the Executive determines are not
critical to pest man@ement in the County.
The Executive must include in the regulations adopted under this
Section
!!
list of invasive species that may be detrimental to the
environment in the County.
97
98
99
100
101
102
.litl
The Executive must review and update the lists of non-essential
pesticides and invasive species designated under subsections
W
and @
Qy
July
1
of each year.
[33B-7] 33B-5. Penalty for violating chapter.
(
a)
Any violation ofthis Chapter is a class C violation.
Each day a violation continues is a separate offense.
ARTICLE 2. Notice Reguirements.
f:\Jawlbills\1452 pesticides\bill9.doc
103
104
(b)
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BILL
No.
52-14
105
106
107
108
109
[33B-2] 33B-6. Notice about pesticides to customer.
(a)
In this [section] Section:
(1)
Customer means a person who makes a contract with a custom
applicator to have the custom applicator apply a pesticide to a
lawn..
(2)
New customer includes a customer who renews a contract with a
custom applicator.
(b)
A custom applicator must give to a new customer:
(1)
110
111
112
113
114
(Before] before application, a list of:
[a.](A)
used;
[The] the trade name of each pesticide that might be
115
116
[b.](ID
[The] the generic name of each pesticide that might
117
118
119
120
be used; and
[c.]{Q
[Specific] specific customer safety precautions for
each pesticide that might be used; and
(2)
[After] after application, a list of:
[a.](A)
and
[b.]@
121
122
123
[The] the trade name of each pesticide actually used;
[The] the generic name of each pesticide actually
124
125
126
used; and
(3)
[A]
~
written notice about pesticides prepared by
th~
[department]
Department under subsection (c) [of this section].
(c)
The [department] Department must prepare, keep current, and provide
to a custom applicator a written notice about pesticides for the custom
applicator to give to a customer under subsection (b) [of this section].
(d)
The notice prepared by the [department] Department under subsection
(c) [of this section] must include:
f:\law\biIJs\1452 pesticides\bill 9.doc
127
128
129
130
131
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BILL
No.
52~14
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
(1)
[Government] government agency phone numbers to call to:
[a.](A)
[b.](ID
[Make] make a consumer complaint;
[Receive]
receIve
technical
information
on
pesticides; and
[c.]
©
[Get] get assistance
emergency;
(2)
[A]
~
In
the case of a medical
list of general safety precautions a customer should take
when a lawn is treated with a pesticide;
(3)
[A]
~
statement that a custom applicator must:
[a.](A)
[Be] be licensed by the Maryland Department of
Agriculture; and
[b.](ID
[Follow] follow safety precautions; and
statement that the customer has the right to require the
(4)
[A]
~
custom applicator to notify the customer before each treatment of
the lawn of the customer with a pesticide.
[33B-3] 33B-7. Posting signs after application
by
custom applicator.
(a)
Immediately after a custom applicator treats a lawn with a pesticide, the
custom applicator must (post a sign on the lawn] place markers within
or along the perimeter ofthe area where pesticides will be applied.
(b)
A [sign posted] marker required under this [section] Section must:
(1)
[Be]
be
clearly visible [from the principal place of access to] to
persons immediately outside the perimeter ofthe property;
(2)
[Be) be a size, form, and color approved by the [department]
Department;
(3)
[Be] be made of material approved by the [department]
Department; [and)
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BILL
No. 52-14
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
(4)
[Have] have wording with content and dimensions approved by
the [department] Department[.]; and
ill
W
be in place on the day that the pesticide is applied.
33B-8. Posting signs after application!!y property owner!!! tenant.
A person who performs
~
private lawn application treating an area
more than 100 square feet must place markers within or along the
perimeter of the area where pesticides will be applied.
(Q)
A marker required under this Section must:
ill
ill
ill
ffi
ill
be clearly visible to persons immediately outside the perimeter of
the property;
be
~
size, form, and color approved
Qy
the Department;
be made of material approved
Qy
the Department; and
have wording with content and dimensions approved
Qy
the
Department; and
be in place on the day that the pesticide is applied.
ARTICLE 3. Application restrictions.
33B-9. Prohibited application.
A person must not
mm1Y
~
non-essential pesticide to
~
lawn.
33B-IO. Exceptions and Exemptions.
177
178
179
180
181
182
183
.cru
A person may
purposes:
mm1Y
~
non-esssential pesticide for the following
ill
ill
ill
ffi
for the control of weeds as defined in Chapter 58, Weeds;
for the control of invasive species listed in
under Subsection 33B-4(d);
for pest control while engaged in agriculture; and
for the maintenance of
~
golf course.
~
regulation adopted
f:\Iaw\bills\1452 pesticides\bill 9.doc
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Bill No. 52-14
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
@
A nerson may
.rum1Y
to the Director for an exemntion from the
nrohibition of Section 33B-9 for
~
non-essential J?esticide. The Director
may grant an exemntion to
.rum1Y
~
non-essentialnesticide on pronerty
where awlication is nrohibited under Section 33B-9 if the awlicant
shows that:
ill
ill
ill
(£)
effective alternatives are unavailable;
granting an exemntion will not violate State or federal law; and
use of the non-essentialnesticide is necessary to nrotect human
health or nrevent significant economic damage.
A nerson may
mmlY
to the Director for an. emergency exemntion from
the nrohibition in Section 33B-9 if
~
nest outbreak noses an imminent
threat to nublic health or if significant economic damage would result
from the inability to use
~
nesticide nrohibited
Qy
Section 33B-9. The
Director may imnose snecific conditions for the granting of emergency
exemntions.
33B-ll. Outreach and Education Campaign.
The Executive must imnlement
~
nublic outreach and education camnaign
before and during imnlementation of the nrovisions of this Article. This camnaign
should include:
ill
@
informational mailers to County households;
distribution of information through County internet and web-based
resources;
(£)
radio and television nublie service announcements;
news releases and news events;
information translated into Snanish, French, Chinese, Korean,
Vietnamese, and other languages, as needed;
@
1rl
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BILL
No.
52-14
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
ill
(g)
extensive use of County Cable Montgomery and other Public,
Educational, and Government channels funded
Qy
the County; and
posters and brochures made available. at County events, on Ride-On
buses and through Regional Service Centers, libraries, recreation
facilities, senior centers, public schools, Montgomery College, health
care providers, hospitals, clinics, and other venues.
ARTICLE 4. County Property
33B-12. Prohibition!!!! County-owned property.
ill
Prohibition.
Except as provided in subsection
ili1
~
person
must not
mmlY
to any property owned
Qy
the County:
ill
~
non-essential pesticide; or
m
(Q)
~
nionicotinoid.
Exceptions.
ill
A person may use any larvicide or rodenticide on property owned
ill:
the County as
~
public health measure to reduce the spread of
disease vectors under recommendations and gyidance provided
ill:
the
Centers for Disease Control and Prevention, the United
States Environmental Protection Agency, or the State Department
of Agriculture. Any rodenticide used must be in
~
tamper-proof
~
229
230
231
232
233
234
235
236
product, unless the rodenticide is designed and registered for
specific environment inaccessible to humans and pets.
m
ill
A person may use
~
non-essential pesticide or neonicotinoid for
the purposes set forth
in
Subsection 33B-l O(a).
A person may use
~
non-essential pesticide or neonicotinoid on
property owned
Qy
the County if the Director determines, after
consulting the Directors of General Services and Health and
Human Services, that the use of pesticide is necessary to protect
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BILL No. 52-14
237
238
239
human health or prevent imminent and significant economic
damage, and that no reasonable alternative is available.
If
f!:
pesticide is used under this paragraph, the Director must, within
30 days after using the pesticide, report to the Council on the
reasons for the use ofthe pesticide.
33B-13. Integrated pest management.
{hl
Adoption gf program.
The Department must adopt,
Qy
f!:
method
240
241
242
243
ill
244
245
regulation, an integmted pest management program for property owned
Qy
the County.
(Q)
Requirements.
Any program adopted under subsection
{hl
must require:
246
247
248
249
250
251
252
253
ill
ill
ill
@
monitoring the turf or landscape;
accurate record-keeping documenting any potential pest problem;
evaluating the site for any iniury caused
Qy
f!:
pest and
determining the appropriate treatment;
using
f!:
treatment that is the least damaging to the general
environment and best preserves the natural ecosystem;
ill
using
f!:
treatment that
will
be the most likely to produce long­
term reductions in pest control requirements and is operationally
feasible and cost effective in the short and long term;
254
255
256
257
258
®
ill
®
(2)
using
f!:
treatment that minimizes negative impacts to non-target
organisms;
using
f!:
treatment that is the least disruptive ofnatural controls;
using
f!:
treatment that is the least hazardous to human health; and
exhausting the list of all non-chemical and organic treatments
available for the targeted pest before using any synthetic
chemical treatments.
259
260
261
262
®
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BILL
No. 52-14
263
264
265
266
267
268
269
270
271
272
273
(£)
The Department must provide training in integrated pest management
for each employee who is responsible for pest management.
Sec. 2. Initial Lists of Non-Essential Pesticides and Invasive Species. The
Executive must submit the lists of non-essential pesticides and invasive species
required by Subsections 33B-4(c) and (d) to the Council for approval by October 1,
2015.
Sec. 3. Effective Date.
The prohibitions on use of non-essential pesticides
contained
in
Section 33B-9 and the prohibitions on use of non-essential pesticides
and neonicotinoids contained in Section 33B-12 take effect on January 1, 2016.
Sec. 4. Expiration. This Act and any regulation adopted under it expires on
January 1,2019.
Approved:
274
275
George Leventhal, President, County Council
Date
276
Approved:
277
Isiah Leggett, County Executive
Date
278
This is a correct copy o/Council action.
279
Linda M. Lauer, Clerk of the Council
Date
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LEGISLATIVE REQUEST REPORT
Pesticides
Bill 52-14
Notice Requirements
-
Non-Essential Pesticides
-
Prohibitions
DESCRIPTION:
This
Bill
would require posting ofnotice for certain lawn
applications of pesticide, prohibit the use of certain pesticides on
lawns, prohibit the use of certain pesticides on certain County-owned
property and require the County to adopt an integrated pest
management program for certain County-owned property.
Long term use of and exposure to certain chemical pesticides has
been linked to several health problems, including birth defects,
cancer, neurological problems, immune system problems, and male
infertility.
To protect the health of families, especially children, from the
unnecessary risks associated with the use of certain pesticides that
have been linked to a wide-range of diseases.
Department of Environmental Protection
To be requested.
To be requested.
To be requested.
To be researched.
Josh Hamlin, Legislative Attorney
To
be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Class C violation
f:\law\bills\1452 pesticides\lrr,doc
®
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MONTGOMERY COUNTY COUNCIL
ROCKVILLE. MARYLAND
GEORGE LEVENTHAL
COUNCILMEMBER
AT-LARGE
MEMORANDUM
October 22, 2014
TO:
FROM:
SUBJECT:
Councilmembers
George Leventhal, Council Vice President
Pesticide Legislation
~~
This coming Tuesday, October 28, [ will be introducing legislation aimed at protecting the health
of families - and especially children - from the unnecessary risks associated with the use of
certain cosmetic pesticides that have been linked to a wide-range of diseases, and which provide
no health benefits.
As you know, for the better part of the last year, [ have been working towards introducing
legislation on this matter. Since the September 2013 meeting of the T &E committee, I have met
with countless stakeholders, on both sides of the issue, to learn more about how pesticides are
being applied in the county, what other governments are doing to ensure that the public's health is
being protected, and what the latest research tells us about their risks. The legislation that I am
introducing on Tuesday incorporates feedback I received from proponents and opponents on the
previous draft of the bill, which I shared with your offices back in May. The result is a bill that
balances the rights of homeowners to maintain a beautiful lawn with the rights of residents who
.prefer to not be exposed to chemicals that have known health effects; I view this biII as a starting
point in our discussion which can be tweaked along the way.
I want to preface my concerns by affirming the value of pesticides when they are used to protect
public health, the environment, our food or our water supply, but when pesticides are used solely
to improve the appearance of landscapes, they can cause more harm than good. In my view,
cosmetic pesticides present a substantial threat to the health oftoday's children. The American
Academy of Pediatrics states that children face the greatest risk from the chemicals they contain,
and that epidemiologic evidence demonstrates associations between early life exposure to
pesticides and pediatric cancers, decreased cognitive function and behavioral problems such as
ADHD.I Certain toxic chemicals can cause permanent brain damage in children even at low
levels of exposure that would have little to no adverse effect in an adult.
2
A child doesn't even
STELLA
8.
WERNER Off'lCE BUILDING
1763, December, 2012
Dr. Phillippe Grandjean, MD, Dr. Phillip Landrigan, MD,
The Lancet ,"eur%gy.
Neurobehavioral
Effect.~
of
DeveloDmental Toxicitv Voilime 13.
Issue 3
,'UI-<U March
"014
I
Pedialrics,
Pesticide Exposure in Children, Volume 130. No.6. 1757
2
~UO r>'IA~Yt:.AN·bAVEN
UE. 6TH FL.OOR. ROCKVI LLE, MARYLAND
20850
240f777-7BII
OR
240f777-7900.
TTY240f777-7914, FAX240f777-7989
WWW.MONTGOMERYCOUNTYMD.GOV/COUNCIL
<!!
PRINTED ON RECYCL.ED PAPER
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have to be directly exposed to a pesticide to suffer negative health outcomes. During pregnancy,
chemicals in women can cross the placenta and result in higher fetal exposure than the mother has
been exposed to. Prenatal exposure to certain chemicals has been documented to increase the risk
of cancer in childhood? Virtually every pregnant woman in the United States is exposed to
multiple chemicals during a sensitive period offetal development that have been linked to
4
adverse reproductive and developmental outcomes.
Adults are also at risk of developing serious health problems due to pesticide exposure.
Researchers at the National Institutes of Health have linked pesticide use to a wide range of
diseases and conditions. Exposure to certain pesticides has been linked to Parkinson's disease,
diabetes, leukemia, lymphoma, lupus, rheumatoid arthritis, dementia, reproductive dysfunction,
s
Alzheimer's disease, and variety of cancers including breast, colon. prostate and lung cancer.
In addition to the adverse health effects to humans, pesticides can also affect animals, both pets
and wildlife, and our waterways. A recent study by the United States Geological Survey has
found that 90% of urban area waterways now have pesticide levels high enough to harm aquatic
6
life, and moreover, the USGS said the harm to aquatic life was likely understated in their report.
Terrestrial wildlife is also being harmed by the use of certain pesticides. The most concerning
example involves honeybees, which pollinate nearly one-third of the food we eat. and a particular
class' of pesticides called neonicotinoids. Neonicotinoids have been repeatedly and strongly linked
with the collapse of honey bee colonies. In just the last year, Maryland lost nearly 50 percent of
its honeybee population, an increase over previous years, which averaged about a one-third loss
annually.?
Before I describe what this bill does, let me describe what this bi!! does not do. This bill does not
ban the use of all pesticides;
it
would, however, restrict the use of certain toxic chemicals that are
most dangerous to human health. This bill does not prohibit the use of any pesticide for gardens.
And this bill would not prohibit the use of any pesticide for agricultural use. What this bill does
do is seek to limit children's exposure to harmful pesticides in places where children are most
likely to be exposed to them. That being said, the major provisions of the bill are:
I) Require the posting of notice when a property owner applies a pesticide to an area of
lawn more than 100 square feet, consistent with the notice requirements for when a
landscaping business treats a lawn with a pesticides;
2) Require the Executive to designate a list of "non-essential" pesticides inCluding:
• all pesticides classified as "Carcinogenic to Humans" or "Likely to Be
Carcinogenic to Humans" by the U.S. EPA;
• all pesticides classified
by
the U.S. EPA as "Restricted Use Products;"
American Co/lege a/Obstetricians
&
Gynecologists.
Committee Opinion
No. 575.
American College ofObstelricians
and
Gynecologists. 931-5. October 2013
4
Errvirol1mel1lal
Hea/Ih
Perspectives.
Environmental Chemicals in Pregnant Women in the United States: NHANES
2003-2004, Tracey
J.
WoodrulT, Ami R. Zota. Jackie M. Schwartz, Volume 119,
No.6,
878-885. June 2011
~
Jan Ehrman.
NIH Record,
Pesticide Use Linked to Lupus. Rheumatoid Arthritis.
http://nihrecord.nih.gov!ncwsletiersl2011l03 18 2Qll/slorv4.htm (accessed August 3, 2014)
6
US. Geological Survey,
An
Overview Comparing Results from Two Decades of Monitoring for Pesticides in the
Nation's
Streams
and
Rivers, 1992-2001
and
2002-2011, Wesley W.
Stone, Robertl
Gilliom, Jeffrey D.
Martin,
hnp;llpubs.usgs.gov/sir/2014/5154/pdfi'sir20 14-51 54.pdf (accessed
October
20, 2014)
7
Tim Wheeler, Mysterious bee die-off continues, extends beyond winfer,
Baltimore
SUI!,
hup:/IartieIe-s.
bal
1/
mo
resun.com/20 I4-05- 151featurestba
I-mysteri
Q
us- bee-dieoff-cont
i
nlies-nearlv- h
alt~
mao'land-hives­
1051-"0140515 I bee·jnfonned-partnership-honc,y-bee-Ix:ekeepers (accessed October 20, 2014)
;l
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3)
4)
5)
6)
7)
• all pesticides classified as "Class
9"
pesticides by the Ontario, Canada, Ministry
of the Environment; and
• all pesticides classified as "Category 1 Endocrine Disruptors'" by the European
Commission
Generally prohibit the application of non-essential pesticides to lawns, with exceptions
for noxious weed and invasive species control, agriculture and gardens, and golf courses;
Require the Executive to conduct
a
public outreach and education campaign before and
during the implementation of the
Bill;
Generally prohibit the application of a non-essential or neonicotinoid pesticide to
County-owned property; and
Require the County to adopt an Integrated Pest Management program.
Sunset the act and any regulation adopted under it on January 1,2019
The pesticide industry will respond to this legislation by saying "the science isn't there" and that
"all pesticides are extensively tested and approved as safe by the EPA," but while both statements
sound believable, they belie the truth.
In
response to the charge that the science isn't there to
legislate, the absence of incontrovertible evidence does not justifY inaction. As evidenced by this
memo, the number of studies from respected institutions of science linking pesticides to a variety
of cancers, neurodevelopmental disorders and diseases is abundant and persuasive. Furthermore,
due to the inestimable number of chemical combinations possible from the thousands of products
on the market and the complex interactions
with
the human body, the research that opponents to
this legislation will demand will never be possible within the ethical confines of research. The
real danger lies not in being exposed to one chemical, but a mih1:ure of chemicals. The EPA risk
assessment fails to look at the synergistic effects of multiple chemicals, even though studies show
that exposure to multiple chemicals that act on the same adverse outcome can have a greater
effect than exposure to
an
individual chemical.
s
And to the charge that a pesticide must
be
safe if it has been approved by the EPA, the
Government Accountability Office (GAO) has found that many pesticides are currently being
approved for consumer use by the EPA without receipt and review of data that the manufacturer
is required to provide on the safety ofthe chemicals.
9
Alarmingly, in some cases the manufacturer
was given two years to submit studies on the effects of a pesticide, and ten years later
no
studies
had been received or reviewed by the EPA
to
What's more, the EPA itself publishes an entire .
manual-
Recognition and Management ofPesticide Poisonings
-
for health care professionals that
acknowledges the toxic nature
and
effects of many pesticides.
As
an educated populace, we
like
to think that we have a high bar for pesticide safety in this country, but sadly, when a pesticide
has been approved by the EPA, it connotes little about its safety.
Lawn care does not have to
be
poisonous to people, pets, wildlife, or our waterways. It is simply
false to say that you can't have
a
lush, green lawn - free of weeds - without the use of toxic
pesticides. Through proper management of the soil, along with the use of natural, organic
alternatives to synthetic pesticides, a high quality landscape can be achieved. And under
my
a
National
Research Council.
Committee
on Improving
Risk
Analysis Approaches
Used
by
the U.S.
EPA.
Science
and
Decisions: Advancing Risk AssessmenL Washington., DC:
National Academies
Press; 2008
.
9
United Stales
Government AccoulliabiJity
Office.
Pesticides - EPA Should Take Steps to Improve its Oversight of
Conditional Registrations, hnp:llwww.gag.gov/assets/660/656825,pdf(accessed October 20, 2014)
10
United
Stales Government Accountability Office,
PeSlicidcs - EPA Should Take Steps to Improye its Oversight of
Conditional Registrations, httn:/Iwww,gao.gov/a%etsl660/656825.pdf(accessedOctober 20,2014)
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legislation, residents will still be free to hire any lawn care professional to treat their lawn or to
manage their own lawn care.
Much like the public debate that occurred in the \950's before cigarettes were found to be cancer­
causing, I believe we are approaching a similar turning point in the discourse on pesticides as the
public is made more aware of the known health effects.
In
a poll taken earlier this year, more than
three-quarters of Marylanders expressed concern about the risk that pesticides pose to them or
their families, and when respondents learned ofthe adverse health effects that pesticides are
11
linked to, 90% of Marylanders expressed concern.
America lags behind by the rest ofthe developed world in recognizing the serious risks that
certain pesticides pose to health and life. The GAO's report confirms that the regulatory approach
taken by the EPA is broken and failing the public. In the face of mounting scientific evidence,
and in the absence ofaction on the federal level, I find it impossible not to act now to protect the
health of our children. [n Montgomery County, we regularly take a precautionary approach to
public health and environmental issues, such as with the forthcoming legislation on e-cigarettes
and the Council's action on Ten Mile Creek.
OUl'
approach to pesticides should be no different.
I have attached all of the studies that I have cited in this memo for your reference, but I hope you
wiJI take time to review research beyond what I have provided, If, after reviewing the research,
you feel compelled to act as I do, I would welcome your co-sponsorship on this bill.
This issue is among the most technically complex which the Council has ever faced. Therefore, it
is critical that we approach this in a thoughtful manner and that we consult with a variety of
experts who are knowledgeable in the field so we can make a weU-informed decision regarding
this important public health issue.
Opinion Works,
Maryland Voter Survey on Pesticides http://www.mdpestnet.org/wp­
contcnuuploadsl2014102IPesticide-Pol]-McnJQ-2-
J
O-14.Qdf (Accessed on October 20,2014)
11
@
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ROCKVIIJ..E, MARYIAND
MEMORANDUM
January
26, 2015
TO:
George Leventhal, President, County Council
0
I 0
Jennifer
A.
Joseph Beach,
~~;:DeP·~'YI;'iJl~
FROM:
SUBJECT:
F.
HUgh~r.
agement and
Budget
FETS for Bill 52-14, Pesticides
~Notice
Requirements -NonwEssentiaI Pesticides
PrGhibitions
Please find attached the fiscal and economic impact statements for the above
referenced legislation.
w
JAH:fz
cc: Bonnie Kirkland, Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy
Nurmi, Special
Assi!>1.&nt
to the
County
Executive
Patrick Lacefield. Director, Public Information Oftlce
Fariba Kassiri, Acting Director, Department of Environmental Protection
Joseph
F.
Beach, Director. Department of Finance
David Flatt; Department of Finance
Matt
Schaeffer,
Office
of
Management and Budget
Alex Espinosa, Office
of
Management and Budget
Felicia Zhang, Office of Management and Budget
Naeem Mia, Office of
Management and Budget
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Fiscal Impact Statement
Bi1l5Z-14:
Pesticides -
Nptice
Requirem~nts
- Non-Essential Pesticides - Prohibitions
1. Legislative
Summary.
The bill would update county law
with
regard to pesticide$ application in the following
manner:
(1) require posting ofnotice for certain lawn applications ofpesticide;
(2) prohibit the use ofcertain pesticides on lawns;
(3)
prohibit
the
use
of
certain pesticides
on
certain County-owned property;
(4) require the County
to
adopt an integrated
pest
management program for certain County­
o\\,llcd property; ,
(5) generally amend County law regarding pesticides; and
(6) require
the
creation of
a media campaign
to inform residents and businesses of the change
in county law related
to
non-essential pesticides.
2.
An
estimate
of
changes in
County
revenues
and
expenditures regardless of whether
the revenues
or
expeb.ditures are assumed
in
the recommended or approved budget.
Includes
source of iuformation, assumptions, and methodologies used.
.
;,
County revenues are not expected to be impacted by Bill 52-14. The Maryland-National
Capital Park and PI . g Commission (M':'NCPPC) did report that there is a potential
for lost revenues ifp ying fields are not able
to
be
adequately maintained - this revenue
has traditionally
cotn~
in
in
the form offield rental from athletic
l~es.
County departments and agencies performed a fiscal impact analysis of
t1w
major
provisions and conclwie the following:
o Section 33B-4 requires the county
to
develop a Ust
of
non-essentiaipesticides and
invasive
~ipecies
which would be detrimental
to
the environment. The Department of
Environmental
Protection (DEP)
does
not envision
a fiscal impact as a result
of these
tasks given
that
m~y
jurisdictions have taken the similar action with regards to non­
essential pesticides
and
significant documentation exists related to successful
implementation of this type ofprohibition. If classification becomes difficult, a
consultant may need to
be brought
in
to
assist
'With
this
task..
o Section 33B-13 requires the County Executive to crea:tean Integrated Pest
Management (IPM) program.
The
Department of General Services (DGS) reported
no fiscal impact and is currently operating under an IPM and
the
Executive branch
would utilize this plan across county departments under·BilI 52-14.
o Enforcement of Bill 52-14
is
not clarified in great detail within the legislation.
Similar to other prohibition legislation. executive
staff
recommends a complaint­
driven enforcemerh model
to
control costs of implementation. It is likely that
complaint-driven enforcement would have a minimal fiscal impact on county
departments
whil~
estimates for a proactive epforcement effort include a dedicated
inspector
\Vith
estimated personnel costs of $75.000 and vehicle costs of
approximately $4\P,OOO
for
a
total
of$115,000
per
inspector.
o Bill 52-14 would @.lso require county departments and agencies to convert to
approved landscaping practices outside ofthe list of banned
non~essentia1
pesticides
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in
the cases wherein prohibited pesticides are being us¢d.
Montgomery County Public Schools (MCPS)reportecl1hat it is likely that pesticides
prohibited under Bill 52·14 are being used currently and that a conversion cost
estimate would
be
available after
an
agreed
list
of prohibited pesticides is established.
Based on estimates
of
conversion
costs
for
M-NCPPC
fields,
the
costs
of
maintaining similar fields within MCPS are expected
to
be significant.
Montgomery College reported no fiscal impacts as a result of Bill 52-14.
To maintain the quality of fields at the cuttent level,
~NCPPC
reported
the
fo11oVv1ng
conversion
costs associated
with
the
move
to
allowable
tteatment
methods
on
fields:
Athletic Fields:
• 40 athletic fields can be organically treated at the following cost:
$648~048
in supplies
and labor
oosts;
$327,062
to
provide
a
top dressing;
aerators;
$100,000 for tbepurchase of
for
a
total
first
year cost of$1,075,110.
Additional costs
in
subsequent
years
also
include:,.
Sod
replacement every two years at
a
cost of
$20;~0
per
field
or $817,600
and
additional
grading
every four
y~s
at a total of
S.1Q,OOO
per field Qr
$400.000.
• Five Bermuda playing fields cannot be organically treated and would need to. be
replaced with treatable sod for $102,200 per field
a total cost of$511,000.
• Optional
replacement costs
for
a synthetic
turf
optibn
are
$1,400,000
per
field
'With
$3,700
in
annual
maintenance or
a
total capital
cost of
$56,000,000
and a
$148,000
annual
maintenance
cost
for
all
forty nelds.
.
two
Regional Fields:
• 35 regional fields
will
need irrigation in..o;;taUed
to
maintain organic maintenance
standards at the following cost:
$3,500,000 in capital costs for system installations;
$231,000 in annual water costs;
$350,000 in annual maintenance
costs;
for a first year cost of $4,081,000.
Local Fields:
• 300
local fields would require manual or mechaniqil weed elimination at a total
annual cost of $229,860.
In
total,
implementation costs to bring M-NCPPC fields into
compliance
(absent a
~
total conversion to synthetic
turf)
would be:
Total
frrst
year costs
toM~NCPPC
would be
$5,896,970"
Recurring annual costs for
M~NCPPC
would be $810;860.
Sod Replacement costs every two years would be $8J7,600.
Additional grading costs every four years forM.,NCP{>C would
be
$400,000.
3. Revenne and expenditure estimates
covering
at least the next 6
fiscal
years.
Total conversion costs to aJ10wable
landscaping
practices
teOr
the
COWlty
would include an
undetermined amount for MCPS to replace current
pesticides
in inventory
and
a six year
1
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total of $12,804,070
t9r M·NCPPC
as a
part
of converting
mainten~ce
practices on
current
fields
to
allow~ble ~tices
under
Bill 52-14.
M-NCPPC's six-year ¢stimate of $12,804,070 in conversion costs consists of:
$5,896,970 in
first year
costs
$4,054,300
in
subseq~ent
annual expenses [$810,8.60
X
5 years]
$2,452~800
in
sod
rep.facement costs on
athletic fields
[$817,600
X 3
applications]
$400,000 in
additionaJ
grading costs
.
~
.
.
,
.
If
it
is
determined
tha~
Ii
proactive enforcement effort
is needed
to
enforce
the
bill,
a
dedicated inspector would
be
required
at a
personnel
cost
ofS75.000 and a vehicle
co~t
would of $40,000, for a total of$115,000 for the first year and a six year total of
$490,000. The County Executive tecotruncrtds a complaint-driven enforcement program.
Bill 52-14 also requires the County Executive to establish an awareness campaign related
to
the prohibitions
no~d
in
the bill. Costs related to the media campaign ",ill depend on
the scope and size·
oft,hc
media campaign, The County
.Executive
recommends an
education and outreaCh
program
of minitnal cost to
the
county.
.
4.
An
actuarial analysiS through the entire amormation period for each bill that
UTA'IULI
affect retiree pension or group insurance costs.
Not Applicable.
5. An estimate of expenditures related to County's information technology (IT)
systems, including Enterprise Resource Planning (ERP) systems.
Not
Applicable.
6. Later actions thatma.y affect future revenlle and expenditures
if
the bill authorizes
future spending.
Not Applicable.
7. An estimate of the staff time needed to implement tbe bill.
The impact ofimplementation ofBil152-14 on staff time will depend
011
the extent of the
enforcement required for the provisions
in
the bill. Inspections on
lawns, commercial
sales
establishments
for
signage,
and other
general enforcement
actions wiH have an
impact on various coupty departments similar to other countywide ban legislation.
If
Bill
52-14 requires an enforcement inspector, approximate personnel
costs
of
an
inspector would
be
$75,000 and a vehicle would be $40,000 for a total of$115,000 per
inspector.
.
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If enforcement of Bill 52-14
is
complaillt-driven, there w®ld be
an
impact
to
current
inspection operations
by
increasing
the
extent of
some
exiktmg inspection protocols
but
would result in minimal
fiscal
impact
to the
county.
8.
An
explanation
of
how the addition of
new staff
responsibilities 'Would
affect
other
duties.
.
.•
Depending
on
the enforcement model of
Bill
52-14~
thebiU would impact the
total
number ofinspection hours required.
An
inspector carrying out an inspection
in
a retailer
for health code and other violations. for example. could
be
required to add on additional
inspections for checks of signage and other sales requirel1lJ::nt$
of
pesticides to
their
nonnal inspection process.
9. An estimate of costs when an additional appropriation
1is
needed.
There are three potential areas of cost related to Bill 52-14:
1)
CQnversion
costs
related to replacingiold pesticides or cnnverting contracts to
include
compliant pysticide ap,plication- County' departments reported no fiscal impacts
considering
DOS
already operates
an
rPM. MCPS reportql that
there
would
be
costs
associated with converting to approved pesticides from peSticides currently
in
use
and
that the extent of these conve.rsion costs will not be known until a
ftnaIlist
of banned
pesticides has been established
by
DEP.!
M-NCPPC estimates. their conversion
cost8to
allowable l$1dscaping practices (excluding
a
conversion to artificial
turf)
to
be
$12;804,070
Over
the next
six
years.
See
it~tn
3
for
additional information on M-NCPPC'sestimated conversibn costs,
2)
Costs associated "";tha media campaign-Bill
52~
14 reqnires
that
the County Executive
establish a media campaign to publici7,c· the ban on
certain~
non-essential pesticides.
Costs related
to
this media
campaigil
will
vary
depending
bn
the scope and size ofthe
campaign; and
3) Costs associated with enforcement of Bill 52-14-If dedi¢ated enforcement personnel
are needed to enforce the provisions of Bill
52-14,
approximate personnel costs of an
inspector would
be $75,000
and a vehicle would be
$40,060
for a
!uta!
of$115,000 per
inspector.
10. A description of
any
variable. that could affect revenue 'snd cost estimates.
See Item 9 above.
11. Ranges of revenue or expenditure$
th~t
are uncertaio or diflicultto project.
M-NCPPC reports that loss ofrevenue is likely to occur
if
the spraying of certain non­
essential pesticides prohibited in Bill 52;-14 is eliminated
8;S
a part of the current pJaying
field maintenance program. M-NCPPCreports that other Jurisdictions have seen a loss of
revenue from athletic tournaments leagues choose to take outside of the county.
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12.
If
a bill is likely to have no fiscal impact, why that is the case.
Not
Applicable.
13. Other fiscal impacts
or
comments.
Both M':'NCPPC and tbe Department of Recreation (REC) are also
concerned about how
this
prohibition
wiIl
impact recreational and sport fields
throughout the county. There are multiple jurisdictional studies
suggesting a
prohihition of this
type
on sport fields leads to degradation of the playing field and
may
lead
to
injmy.
14.
The following contributed to and concurred with this analysis:
Stan
Edwards, Department ofEnvironmental Protection
James Song. Montgomery County Public Schools
David Vismara, Maryland-National Capital Park and Planning Commission
Beryl Feinberg, Department ofC'.reneral Services
Matt Schaeffer, Office of Management and Budget
®
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Ect)nomic Impact Statement
Bill 52-14, Pesticides ..... Notice Requirements
*
Non-Esireatial
Prohibitions
Background:
This legislation would
requite
the posting ora notice when a property
owner
applies a
pesticide to an area oflawn more than 100 square feet. Bill 52:-14 requires the County
Executive to designate a
li~i
of "non-essential" pesticides that include the following:
• All pesticides classified as "Carcinogenic
to
Humans"
or
"Likely to Be
Carcinogenic
to
Humans" by the United States Environmental Protection Agency
(USEPA);
• All pesticides classified by USEPA as ''Restricted Use Products";
• All
pesticides classified as "Class 9" by the Ministry ofthe
Environment
and
Climate Change, Government of Ontario, Canada
• All pesticides classified as "Category 1 EndOcrine
Disrupters~'
by the European
Commission; and
• Other pesticides which the
Coun~
Executive
determin~s
are
not
critical to pest
management in the County.
<
The Bill would prohibjt the application ofnon--essential pesticides to lawns,
with
exceptions for noxious
weed
and
invasive species
control~
agriculture
and
garden~
and
golf courses. The Bill would
also
require the County Executive to conduct a public
outreach and education campaign during the implementation of Bill 52..14, and would
prohibit the application of non-essential and neonicotinoid pesticides to County-o\Vned
proJX--rty.
1.
The sources of information, assumptions, and methodolbgies used.
Department ofEnvironmental Protection (DEP)
SafeLawns.org
Diffen.org
The Fertilizer Institute (TFI)
Grassroots Environmental Education
2. A description of any variable that could affect the economic impact estimates.
The variable
that
could affect the economic impact estimates is ihe cost differential
between organic pesticides and chemical pesticides, However, according to
SafeLawns.org, the cost differential is conlparing apples to oranges since one product
provides
a
short-term solution while
the other product aims to
provide
a long-term
solution. Organic products
'~function
by building up
life
in
the
soil (soil biology) and
their payoff is long-term and lasting" 'while synthetic products, which are
instantaneous~
are applied frequently and in greater amounts. Therefore,
SafeLa\\'Us.org indicates that the users oforganic products
will
spend less money en
1a\\11 care
over a nvo-year period
than
users
of chemical
or
synthetic pesticides.
Page 10f2
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Economic Impact Statement
Bill52-14~ Pe~ticid~
- Notice Requirements - Non-Essential Prohibitions
According
10
Diffen.otg, organic pesticides are much more expensive than synthetic
or chemical pesticides :because synthetic or chemical pesticides have more
concentrated levels ofnutrients per weight of product than organic pesticides. The
user of organic pesticides needs several pounds of organic pesticide that would
pr9vide the same nutrient levels as synthetic or chemical pesticide.
TIlat
differential
in the amounts would
result
in a higher cost of organic
pesticide.
Therefore. there is a conflict between the information provided by SafeLawns.org and
Diflbn.org regarding the cost differential between organic and synthetic/chemical
pt.'Sticides. SafeLuwns.org suggests there
is
less application of organic
to
synthetic/chemical peS,ticide while according to Diffen.org, one needs
a
higher
quantity of organic pesticide to synthetiC/chemical pesticide to achieve the same
nutrient level.
3.
The
Bill's
positive or;negative effect,
if
any on employment, spending, saving,
investment, incomes,and property values in the County.
Because of the differences of opinions in terms of the amount of application of
organic versus synthetic/chemical pesticide as stated in paragraph #2, it is uncertain
whether Bill 52-14 would have economic impact on employment, spending. saving.
investment. incomes,and property values in the County. Because of the specific
climate and soil
iype
endemic to Montgomery County, more consultation with the
expert., and reseatch ate nee{jed to detennine the economic effect on the County.
4.
If
a
Bill
is
likely to have no economic impact, why
is
that the
case?
It is uncertain
ifBil15~-14
has an economic impact.
5.
The following contributed to or concurred with this
analysis:
David Platt and Rob
Hagedoorn. Finance,
and
Stan Edwards, Department of Environmental Protection.
Page 2 of2
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MEMORANDUM
June 9, 2015
TO:
FROM:
SUBJECT:
Transportation, Infrastructure, Energy
anp
Environment Committee
Josh Hamlin. Legislative
Attorne~
Letters from Assistant Attorney
Kathryn M. Rowe to Delegates Kirill
Reznik and Kumar Barve, RE: possible preemption of Bill 52-14, Pesticides ­
Notice Requirements - Non-Essential Pesticides Prohibitions
Te::o.
By letter to the Honorable Kirill Reznik dated April 1,2015, Assistant Attorney General
Kathryn M. Rowe of the Office of Counsel to the General Assembly provided advice on whether
State law would preempt Montgomery County Bill 52-14. Ms. Rowe's view is "that the general
ban on application of non-essential pesticides may well be preempted, but that other parts most
likely would not be." Ms. Rowe sent a very similar letter, dated May 21, 2015, to Delegate Kumar
Barve, with a somewhat more forceful conclusion. In the May 21 letter, which contained
essentially the same analysis as the April 1 letter, Ms. Rowe concluded:
"It
is my view that, to the
extent that the bill bars application of a non-essential pesticide to a lawn, subject to certain
exceptions, it is likely to be found to be preempted,"
As a general proposition, Council staff concurs with the view that "a court could conclude"
that the County is preempted under State law from prohibiting the cosmetic use of pesticides on
lawns, but believes that such a conclusion is far from certain. Indeed, given the existing Maryland
case law, as well as the legislative history of the State pesticide law. staff believes that a very
strong argument against implied preemption can be made. As such. staff does not agree with Ms.
Rowe's modified conclusion, that preemption ofa County prohibition ofthe application ofcertain
pesticides in certain places is "likely."
Ms. Rowe's initial conclusion did not address the
probability
of a finding of preemption
with regard to Bill 52-14, but only its
possibility.
In her second letter, she does speak to the
probability, as noted above. However, the discussion provided by the entirety of
both
letters
(virtually identical in each) does not clearly indicate the likelihood that a
Maryland
Court would
conclude that the County is preempted from implementing any ofthe Bill's provisions. Ms. Rowe
examined pesticide regulation-related implied preemption cases from other jurisdictions and a
described the provisions of State law regulating pesticides. With regard to the cases from other
jurisdictions, she notes that "[tJhe cases are not as helpful as they could be, however, because
different states apply different tests as to preemption, and, of course, the types of regulation that
have been attempted at the local level vary greatly." The different preemption tests applied by the
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various states and the different types of attempted local regulation, as well as, and perhaps more
importantly, the different state pesticide regulation laws held to preempt local regulation, all
combine to greatly limit the instructive value of these cases.
Significantly, neither of Ms. Rowe's letters discuss how Maryland courts have applied the
implied preemption doctrine, nor do they discuss significant aspects of the legislative history of
Maryland's pesticide law. Staff believes that such discussion is critical to assessing the likelihood
of a finding that the County is impliedly preempted from prohlbiting the use of certain pesticides
on certain areas in the County. The following discussion of implied preemption law in Maryland,
and important General Assembly actions related to the pesticide law, lead
staff
to believe that,
should the County enact Bill 52-14 prohibiting the application of certain pesticides, a finding of
implied preemption would be possible, but not necessarily "likely."
Background
The regulation of pesticides is the shared responsibility of federal, state, and local
governments. This shared approach, known as "environmental federalism," is consistently
applied among several federal environmental protection laws,
l
and has evolved largely over the
last 50 years.
At the national level, the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") is
the primary vehlcle for pesticide regulation. FIFRA
was
enacted in 1947, and
has
evolved from
being primarily a labeling statute to become a somewhat more broad regulation. In 1972,
administration of FIFRA was transferred to the newly created Environmental Protection Agency
("EPA"), which is responsible for classifying pesticides based on a review of the scientific
evidence oftheir safety and impact on the health of individuals and the environment. FIFRA also
requires EPA to maintain a registry of all but "minimum risk" pesticides.
2
In
addition to the
classification and registry ofpesticides, FIFRA provides a uniform national standard for labeling
pesticides. FIFRA does not comprehensively regulate pesticides, however, and does not include
public notice or permit requirements for the use of pesticides.
Under FIFRA, the states are the primary enforcers ofpesticide use regulations, and FIFRA
expressly authorizes states to enact their own regulatory measures concerning the sale or use of
any federally registered pesticides in the state, provided the state regulation is at least as restrictive
as FIFRA itself. In Maryland, pesticides are regulated by the Maryland Department ofAgriculture,
through the enforcement of Subtitles 1 and 2 of Title 5 of the Agriculture Article ofthe Maryland
Code.
3
Maryland law and regulations generally create a pesticide registration and labeling regime
at the state level, and a licensing program for applicators of certain pesticides. Title 5 does not
The 1972 Federal Water Pollution Control Act, the) 986 amendments to the Safe Drinking Water Act, the Toxic
Substances Control Act, the Resource Conservation and Recovery Act, and the Oil Pollution Control Act of 1990 all
provide for state and local regulatory roles.
2
Minimum risk pesticides
are
a special class of pesticides that
are
not subject to federal registration requirements
because their ingredients,
both
active
and inert, are
demonstrably
safe for the intended use. Information about EPA's
treatment of minimum risk pesticides
can
be found at: http://www.epa.gov/oQPbppd
I
lbiopesticides/regtoolsl25b/25b­
fag.httn
3
Subtitle I is entitled the "Maryland Pesticide Registration and Labeling
Law."
Subtitle 2 is the "Pesticide
Applicator's Law."
I
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include any express preemption language, nor does it expressly authorize the use of any particular
pesticides. In 2011, the Office ofthe County Attorney opined that, as a general matter, the County
may regulate pesticides in a manner at least as restrictive as, and consistent with, federal and State
law. Specifically, the opinion expressed the view that the County could enact a local
ban
on the
use of the pesticide methyl bromide.
4
The authority of local governments to regulate pesticides was the subject of significant
litigation in the 19808, with a County law struck down as preempted by FIFRA.
In
Maryland Pest
Control Assn.
v.
Montgomery County, Maryland,
646 F. Supp. 109 (D. Md. 1986), the U.S. District
Court held that FIFRA preempted the County's local law imposing pesticide posting and notice
requirements. The Court held that if Congress had wanted to include local governments in the
regulation ofpesticides, it would have expressly done so. However.
in
Wisconsin Public Intervenor
v. Mortier,
501 U.S. 597 (1991). the U.s. Supreme Court held, contrary to the
Maryland Pest
Control Assn.
decision,
that
a unit of local government has the power, under FIFRA,
to
regulate
pesticides within its ownjurisciiction, provided that the local regulation is at least as restrictive as,
and consistent with, FIFRA and any applicable state law. Since
Mortier
was decided, many states
have expressly preempted local jurisdictions from regulating pesticides, but Maryland
is
one of
nine states which permit local regulation. The County currently imposes certain notice, storage,
handling, and consumer information requirements in Chapter 33B of the County Code, and Bill
52-14 would add certain additional notice requirements,
and
would prohibit the use of certain
pesticides on County property and certain private property.
Preemption of local pesticide regulation
Federal
Law
on Local Regulation ofPesticides
As noted above, the question of whether local jurisdictions are permitted to regulate
pesticides under federal law was settled by the Supreme Court in
Wisconsin Public Intervenor v.
Mortier.
A brief discussion ofthe
Mortier
decision is helpful in providing context for considering
local pesticide regulation generally.
On June 21, 199
J,
the Supreme Court unanimously decided
in
Wisconsin Public Intervenor
v. Mortier
that FIFRA did not preempt local regulation of pesticides. In doing so, the Court
reversed the holdings of two lower courts, explaining that FIFRA, while a comprehensive
regulatory act, left open to the states and localities the power to supplement federal pesticide
regulation. Moreover, the Court reiterated its standard of "clear and manifest purpose" when
inferring congressional intent in preemption cases. In
Mortier,
the Court discussed and rejected
each of the ways by which federal law could preempt state or local laws:
(1)
where a federal law
expressly preempts state or local law; (2) where the federal law so pervasively occupies the field
that state or local supplemental action must be precluded; (3) where federal and state or local laws
conflict; and (4) where a state or local law stand as an obstacle to the fulfillment offederal goals.
The Court, in its analysis ofFIFRA's statutory language, could not find that Congress had indicated
a "clear and manifest purpose" to preempt local regulation:
4
Memorandum to Coundlmember Roger Berliner from Associate County Attorney Walter E. Wilson, dated October
25. 20
II, which is attached to this memorandum.
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FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use
of pesticides. It certainly does not equate registration and labeling requirements
with a general approval to apply pesticides throughout the Nation without regard to
regional and local factors like climate, population, geography, and water supply.
Whatever else FIFRA may supplant, it does not occupy the field of pesticide
regulation in general or the area of local use permitting in particular.
501 U.S. 597, 613-14.
Following the
Mortier
decision, pesticide proponents
and
opponents mobilized for activity
on federal and state levels. Bills were introduced in both the Senate and the House of
Representatives to amend FIFRA to expressly preempt state
and
local regulation, though neither
passed. At the state level, coalitions made up ofpesticide industry and agricultural representatives
worked to get state legislatures to pass legislation preempting local pesticide regulation. Notably,
in Maryland, bills were introduced in the House of Delegates and the Senate to expressly preempt
local pesticide regulation in 1992, 1993, and 1994, but none were enacted.
5
Implied Preemption Law in Maryland
In resolving questions ofpreemption oflocallegislation. Maryland courts have recognized
'"three grounds on which otherwise valid local legislation might be invalidated because of State
legislation concerning the same matter:
(1)
ordinances which conflict with public general law, (2)
ordinances which deal with matters which are part ofan entire subject matter on which the General
Assembly has expressly reserved unto itself the right to legislate, and (3) ordinances which deal
with an area in which the General Assembly has acted with such force that an intent to occupy the
entire field must be implied."
McCarthy
v.
Board ofEducation ofAnne Arundel County,
280 Md.
634, 639 (1977). It appears that Ms. Rowe bases her conclusion that the prohibition on the use of
non-essential pesticides on lawns could be preempted on the doctrine of implied preemption set
forth in (3) above. In any event, the Maryland pesticide law contains no language expressly
preempting local jurisdictions from any area of pesticide regulation, and there has been no
assertion made that the prohibition in Bill 52-14 would conflict with State law. As such, the focus
of the discussion below is on the doctrine of implied preemption.
The Maryland Court of Appeals, in
Mayor and City Council of Baltimore
v.
Sitnick
&
Firey,
254 Md. 303 (1969),6 articulated the "concurrent powers theory," first applied in
Rossberg
v. State,
111 Md. 394 (1909), which allows local legislation in certain fields where the State
legislature has acted ifthe local jurisdictions are otherwise empowered to legislate on the subject.
The
Sitnick
Court surveyed prior Court decisions, and described the concurrent powers theory
succinctly: "a political subdivision may not prohibit what the State by general public law has
permitted, but
it
may prohibit what the State has not
expressly
permitted." 254 Md. at 317
s 1992: HB
7621
SB549 - Pesticides - Unifonn Regulation. 1993: SB 429 - Pesticides - Regulation. 1994: HB
948/8B
481 - Unifonn Regulation of Pesticides.
6
In
Sitnic/c.
the Court of Appeals held that a Baltimore City ordinance establishing minimum wage standards higher
than the standard
set
by
State Jaw was not invalid under the theory that the State had preempted the field of minimum
wage regulation. but was valid on the basis ofthe City's exercise of"concurrent power." The
Silnick
Court articulated
the doctrine of concurrent power, and contrasted it with the concept of implied preemption.
4
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(emphasis supplied). The Court
recognized~
however, that "there may
be
times when the [State}
legislature may so forcibly express its intent to occupy a specific field of regulation that the
acceptance of the doctrine
ofpre~emption
by occupation is compelled..."
ld.
at 323.
The Court has had many opportunities since
Sitnick
to consider whether the State had so
forcibly expressed its intent to occupy a particular field of regulation so as to preempt local
enactments in that field. In these cases. the Court
has
exercised the necessary caution observed by
Judge Finan
in
Sitnick,
avoiding a broad application ofimpUed preemption
that
would render home
rule virtually worthless.
ld.
In its
post~Sitnick
implied preemption analyses, the Court has sought
to divine the legislature'S intent, with "the primary indicia of a legislative purpose
to
preempt an
entire field of law [being} the comprehensiveness with which the General Assembly has legislated
in the field."
Ad+Soil
v.
County Commissioners of Queen Anne's County,
307 Md. 307, 328
(1986). Under this cautious approach, there have been only six distinct instances where
a
finding
of implied preemption has resulted in the invalidation of a local law in Maryland since the
Sitnick
decision in 1969.
7
In
County Council for Montgomery County v. Montgomery Association,
274 Md. 52
(l975), the Court of Appeals invalidated a Montgomery County law regulating the campaign
finance practices ofcandidates for County Executive and the County Council. The Court held that
'·the matter of election campaign financing was intended to be completely occupied by state law,
to the exclusion of any local legislation on the subject ..."
ld.
at 60. After reviewing the State
constitutional provisions setting for the legislature'S duty of protecting the electoral process
in
Maryland and
the
State Election Code. the Court concluded that the General Assembly "has
enacted a comprehensive plan for the conduct of elections in Maryland" and in' particular
"has
enacted detailed provisions governing the financing ofelection campaigns in this state."
ld.
at 64.
8
In so holding the
Court
noted the "chaos" that would result from dual systems ofcampaign fmance
regulation. saying that allowing local regulation in the field of campaign finances "would
inevitably lead to utter confusion"
ld.
at 64. The Court noted that its holding was "in no way
inconsistent with concurrent powers theory set forth in
Rossberg
and
Sitnick
cases."
ld
at 65.
The Court in
McCarthy
v.
Board ofEducation ofAnne Arundel County
considered an Anne
Arundel County law directing the County board of education, a State agency, to make rules and
enter contracts to provide transportation to children attending private. non-profit schools in the
County and directing the County Council to appropriate funds to pay the costs of providing such
transportation. The
McCarthy
Court invalidated the law, finding that "the field of education has
Two other cases also found implied preemption of local regulation, but without a separate analysis. In
Montgomery
County
B{)(1rd ofRealtors
l'.
Montgomery County,
287 Md. 101 (1980), the Court struck
down
a Montgomery County
law imposing a tax on real property in the County on the amount
by
which the taxable value of
the
property. at the
date of a transfer, exceeded the assessed valuation of
the
property. The Court examined the State law's "detailed
scheme for the assessment and levy of taxes,"
and held
tbat "[bJecause tbe scheme oftaxation
here
is
in direct contlict
with
[State
law}. the County Council was without power to enact it."
Id
at 110.
The Court also noted, without separate
discussion, held that tbe General Assembly had fully occupied the field of property
tax
assessment and levy.
Id
In
Soaring Vista Properties, Inc. v. Board o/County Commissioners afQueen Anne's
County,
356
Md 660
(1999), the
Court invalidated a county law regulating sewage sludge utilization. applying
its
holding
in
Talbot County v. Skipper.
329
Md.
48} (1993)
that local regulation in the field of sewage sludge utilization was impliedly preempted by virtue
of
the
"comprehensive" State regulatory scheme.
S
The State Election Code is codified as the Election
Law
Article, with Title
I3
comprebensively regulating campaign
finance.
7
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been preempted by the General Assembly, thus rendering local enactments affecting boards of
education void." 280 Md. at 638. The Court reviewed the long history ofstatewide provision and
regulation of public and private education, and surveyed the existing State education law, and
deemed it an "excellent example of what the Court had in mind in
Baltimore v. Sirnick
&
Firey
when
it
referred to the fact that the General Assembly might 'so forcibly express its intent
to
occupy a specific field of regulation that the acceptance of the doctrine of preemption by
occupation is compelled ...'"
ld
at 650-51 (quoting
Baltimore
v.
Sitnick
&
Firey
254 Md. 303,
323).9
[n
Howard County
v.
Potomac Electric Power Company,
319 Md. 511 (1990). the Court
found that the General Assembly had expressed its intent to occupy completely the field of public
utility service. In the case, Howard County and Montgomery County each sought to enforce its
respective zoning ordinance against a utility that had obtained a certificate ofpublic convenience
and necessity from the Public Service Commission ("PSG') to construct a high-voltage. overhead
transmission line in the counties. The Court reviewed the PSC's broad authority over public
utilities. and noted that:
(l)
the State law "states with particularity that the PSC shall have
final
authority
over the granting of construction permits for overhead transmission lines
in
excess of
69,000 volts,"
ld
at 524 (emphasis supplied), (2) the imposition of conflicting conditions
associated with high-voltage overhead transmission lines could generate confusion,
Id
at 527, and
(3) allowing local authority over the construction ofa transmission line providing service statewide
could permit the local jurisdiction to regulate the utility "in a manner that may be antithetical to
the interests ofthe rest of the state."
ld
at 527-28.
10
The Court in
Talbot County v. Skipper,
329 Md. 481 (1993) found an intent to fully occupy
the field of sewage sludge utilization, invalidating a Talbot County law which required a land
owner to record certain information in the County land records before applying sewage sludge to
the land under a State permit. The Court concluded that the General Assembly «has enacted a very
comprehensive scheme regUlating all aspects of sewage sludge utilization in Maryland."
ld
at
481. It is important to note that the State sewage sludge utilization law at issue in
Skipper
had
been recently amended in response to an earlier Court of Appeals upholding a local zoning law
against a preemption challenge. In that case the Court found that the State law governing sewage
sludge utilization operations was ''far from comprehensive."
Ad+Soil, supra,
307 Md. at 328.
In
Allied Vending
v.
City a/Bowie,
332 Md. 279 (1993), the Court invalidated ordinances
enacted by the City of Takoma Park and the City of Bowie that required State-licensed cigarette
vending machines to also obtain a license (or permit) from the respective cities, and restricted the
placement of the machines to locations not generally accessible to minors. The Court found that
the General Assembly had enacted "comprehensive provisions governing the appropriate licenses
necessary to sen cigarettes in Maryland at wholesale, retail, over-the-counter, and through cigarette
vending machines."
Jd
at 288-89. The Court noted that "[p]rior to the enactment of the
ordinances, the licensing of cigarette vending machines was accomplished exclusively in
accordance with [State law]."
Id
at 288. Further, the Court found the city laws in question "would
9
Education in
Maryland
is
governed via the Education Article.
10
Public utilities in Maryland are regulated via the Public Utilities Article.
6
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be
tantamount to a ban on cigarette vending machines in locations in which the State has granted
vendors a license to operate those machines."
Id.
at
303.
The most recent Maryland case in which a local law
was
invalidated on the basis of implied
preemption is
Altadis U.S.A., inc. v. Prince George's County,
431 Md. 307 (2013).
In
striking
down two Prince George's County laws regulating the sale ofcertain cigars, the
Altadis
Court held
that state law occupies the field ofregulating the packaging and sale oftobacco products, including
cigars, and thus impliedly preempts local regulation.
The
Court applied its holding in Allied
Vending, and noted that particularly important was a provision in State law
expressly authorizing
a State-licensed seller to
sell
or distribute up to 20 single cigars. The invalidated County laws
generally disallowed the sale of inexpensive single cigars, and the Court found this "tension"
between state
and
local laws to reinforce the preemption conclusion.
Id.
at 318-19. Also, the
Court found noteworthy the fact that the General Assembly had considered, but not enacted, bills
banning the sale of single cigars, saying "[t]he General Assembly's rejection ofbills imposing the
same requirements
as
the local legislation is significant in a preemption analysis."
Id
In contrast to these cases, the Court has found concurrent authority in cases where it
has
not found a comprehensive State regulatory scheme within a particular field of legislation.
See,
Ad+Soil, supra; Silnick, supra; City of Annapolis
v.
Annapolis Waterfront Co.,
284
Md. 383,
(l979);
NaJional Asphalt Pavement Assn. v. Prince George's County,
292 Md. 75 (1981);
Board
ofChild Care ofthe Ballimore Annual Conference ofthe Methodist Church. Inc. et
aI.
v. Harker.
316 Md. 683 (1989). In these cases, the Court
has
upheld local regulation within a field also
regulated by the State.
Preemption ofLocal Pesticide Regulation in Other States
In her letters to Delegates Reznik and Barve, Ms. Rowe cites a number of decisions from
other jurisdictions in which local regulation of pesticides has been found to be preempted by State
law. As previously noted, Ms. Rowe acknowledged the limitation on their utility, as the
determinations are dependent on different standards for finding preemption, and differences in the
State and local laws in question. To the extent that these decisions may be instructive, many are
clearly distinguishable from the law and facts that are the subject of this analysis. Several of the
cited cases have no bearing on any implied preemption analysis, as the State laws in question
expressly
preempt local pesticide regUlation.
I I
Others involve state laws more clearly directing a
more comprehensive statewide, uniform system of regulation.
12
II
See, Village ofLacona v. Stale, Dept. ofAgriculture and Markels.
858 N. Y.S.2d 833 (2008);
Ames v. Smoot, 471
N.Y.S.2d 128 (1983); and
Long Is. Pest
Contol
Assn v. Town o/HUlltington,
341 N.Y.S.2d 93 (1973): all three ofthese
cases held that local jurisdictions were preempted from regulating pesticides where New York State law provided that
'Jurisdiction in
all
matters pertaining
to
the distribution, sale, use and transportation of pesticides, is by this article
vested
exclusively
in the commissioner." (emphasis supplied).
See
also,
Minnesota
Agr. Aircraft Assn
v.
Township of
Mantrap,
498 N.W.2d 40 (Minn. App. 1993) in wh ich the court held a local law regulating aerial spraying ofpesticides
preempted
by
State law including the following provision: "Except as specifically provided in this chapter, the
provisions of this chapter preempt ordinances by local governments that prohibit or regulate
any
matter relating
to
the
registration. labeling, distribution, sale, handling. use, application, or disposal of pesticides.
It
is not the intent of this
section to preempt local responsibilities for zoning. fire codes, or hazardous waste disposal."
12
The court in
Peslicide Public Policy Foundation v. Village
0/
Wauconda. IlL.
622 F.Supp. 423 (N.D. 111. 1985)
found a comprehensive regulatory scheme in a State law with a clearly stated purpose "to regulate in the public interest
the labeling. distribution, use and application of pesticides as herein defined,"
[d.
at 427. and in which lI[t]hree different
7
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Bill 52-14's Non-essential Pesticide Prohibition
Local regulation of pesticides generally, in a manner more stringent than federal or State
law, is consistent with the
Morlier
decision and the concurrent powers doctrine outlined in
Baltimore
v.
Sitnkk
&
Firey.
Bill 52·14 is intended to do just this: regulate the type and location
of pesticide applications where the State has not done so at all. As drafted, the Bill would, among
other things, generally13 prohibit the application of pesticides designated "non-essential" on
lawns
l4
in the County. Non-essential pesticides would
be
so designated because they are: (1)
designated as "carcinogenic or "likely to be carcinogenic" by the EPA; (2) classified as a
"restricted use pesticide" by the EPA; (3) classified as a "Class 9" pesticide by the Ontario, Canada,
Ministry of the Environment; or (4) classified as a "Category 1 Endocrine Disruptor" by the
European Commission. Bill 52-14's prohibition would apply to a large number of
che~ical
pesticides used for lawn care, but would not prohibit the use ofall pesticides on lawns, nor would
it limit pesticide application
other
lhan
on lawns.
While State pesticide law comprehensively regulates pesticide registration and labeling in
the State, and establishes a scheme Qf required certifications and licenses, nothing in Subtitles 1
and 2 of the Agriculture Article
expressly
permits the application of any pesticides to lawns, as
would be prohibited by Bill 52-14.- None of Bill 52-14's provisions relate
to
pesticide regulation
and labeling. The Bill does not affect the licensing and certification of commercial pest control
applicators in the State, nor does it establish a parallel County licensing program.
Three of the Maryland cases
in
which local laws were found
to
be impliedly preempted
involved fields of regulation in which the applicable State law filled an entire Article of the
Maryland Code: Elections,15 Education, 16 and Public Utilities.
17
In these fields, the regulation is
unquestionably comprehensive, a fact demonstrated by the sheer volume of State law in the field.
Ms. Rowe's summary of the provisions of Maryland's pesticide laws (Agriculture Article, Title 5,
Subtitles
I
and 2) may support a conclusion that the registration and labeling of pesticides and the
licensing of commercial pesticide applicators are the exclusive province of State regulation.
However, they give no indication that the General Assembly has comprehensively regulated the
field of pesticide regulation generally. While MD Agriculture Code, Section 5-204, does give the
State bodies are involved in pesticide regulation, each administering the statutory provisions within their own area of
expertise ..."
ld
at 430. The holding also turned. in part, on the local jurisdiction's status as a "non-home rule unit."
The decision of the Court in
Syngenta Seeds, Inc. v. County ofKauai,
2014 WL 4216022 (D. Haw. Aug. 25, 2014)
was rooted, at least in part in Hawaii's "statewide constitutional concern for agriculture."
Id.
at 8. Also, the
comprehensive nature of the Hawaii law is evidenced in its mandate that State Board ofAgriculture "establish a system
of control over the distribution and use of certain pesticides and devices purchased by the consuming public."
ld.
13
The Bill includes a number of exceptions, including applications for the control of noxious weeds, invasive species,
agricultural purposes, and maintenance of golf courses.
14
"Lawn" is defined in existing County law as Lawn means an area of land, except agricultural land, that is:
(I)
mostly covered by grass, other similar herbaceous plants, shrubs, or trees; and
(2)
kept trim by mowing or cutting.
Bi1lS2-14 would amend this definition to include playing fields and expressly exclude gardens.
" County Council for Montgomery County v. Montgomery Association,
274 Md. 52 (1975).
16
McCarthy v. Board ofEducation ofAnne Arundel County,
280 Md. 634, 639 (1977).
17
Howard COllntyv. Potomac Electric Power Company,
319 Md. 511 (1990).
8
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Secretary a nwnber of duties related to regulating the use of pesticides, neither the law nor
regulations establish a regulatory regime that can reasonably be considered comprehensive.
J8
The two most recent implied preemption cases
l9
involved local attempts to restrict the sale
oftobacco products, where sellers are licensed by the State. In the
fIrst
of these,
Allied Vending
v.
City ofBowie,
the Court of Appeals invalidated municipal ordinances
in
Bowie and Takoma Park
that required municipal permits for cigarette vending machines, with extremely restrictive
provisions governing eligibility for the pennits. Sellers using cigarette vending machines are
required to have a State-issued,
location-specific
license, and the Court found the duplicative, and
more restrictive, municipal permitting regime amounted to a
de facto
ban
on activity directly
licensed by the State. Bill 52-14 would not have this effect; State-licensed commercial pesticide
applicators would still be pennitted to work in the County under authority oftheir license. but with
public health-based limitations on which pesticides
20
they could use on lawns. Also, beyond lawn
applications. Bill 52-14 does not restrict pesticide use at all.
The other tobacco
case.A/tadis US.A.. Inc. v. Prince George's County.
the Court extended
its holding in
Allied Vending,
finding that the State preempted local regulation of the field of
packaging, sale, and distribution of tobacco products. 431 Md. 307. 316. As in
Allied Vending.
the Court relied heavily on the "tension between State law and local law" in its
holding.Id
at 318.
In
Altadis,
the preempted local law had the effect of prohibiting an activity that the State law
expressly authorized.
Id
As already discussed, Bill 52-14 would not have this effect
.
Ofthe Maryland cases finding implied preemption,
Ta/bot County
v.
Skipper,
329 Md. 481
(1993) is probably the closest to being analogous to the current situation, in
that
the local law in
question burdened the exercise of an activity permitted by the State under State law. A key
distinction, however, is that the relevant State law in
Skipper,
MD Environmental Code
§
9-237,
expressly "authorizes the pennit holder
to
utilize sewage sludge according to the terms of the
pennit."
Id
at 483. As noted above, there is no such corollary provision in the State pesticide law;
nowhere does the law grant authority to apply particular pesticides. Also, the Court in
Skipper
found indications of intent to preempt local regulation of sewage sludge utilization in the fact that
the General Assembly had expressly provided for local government action in certain aspects of
sewage sludge utilization, but not others. The Court reasoned that when express local authority is
provided in some, but not all areas of a Jaw, in areas "where the state statute has not authorized
local government involvement, the Legislature likely contemplated that the regulation would
be
exclusively at the state level." 329 Md. at 492. In contrast, the State pesticide law makes no
provision, one way or the other, for local regulation of pesticide use. Finally, and perhaps more
importantly, the regulatory scheme that the
Skipper
Court tound sufficiently comprehensive to
preempt local legislation had been substantially amended in response to the rmding
in
Ad+Soil
that the law was "far from comprehensive ..."
Ad+Soi/, Supra 307 Md
at 328.
MD Agriculture Code
§
5-208.1 does require integrated pest
management systems in
public schools and school
grounds, which. in combination with the Court's prior holding
that
the State has fully occupied the field ofeducation
(see, McCarthy
v.
Board of Education
C!f
Anne Arundel County. supra)
would likely preempt
the
County from
regUlating pesticide use in public schools and on public school grounds.
19
Allied
Vending
v.
City ofBowie,
332 Md. 279 (1993)
andAltadis U.S.A., Inc.
v.
Prince
George's
CounJy,
431 Md.
307 (2013).
20
The definition of pesticide under State law (MD Agriculture Code
§
5·201) is very broad and. like the County
definition, includes pesticides that would
run
be
categorized as "non·essential" under Bill 52·14's provisions.
18
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Amendments to State law since the County enacted existing pesticide law.
LoeaJ regulation of pesticides in Maryland is not widespread, but it is not new.
21
Montgomery County has had laws in place regulating pesticide application for nearly 30 years.
A 1986 law requires commercial pesticide applicators ("custom applicators',) to provide certain
information to new customers prior to applying pesticides, and to post signs indicating that a
pesticide has been applied to the lawn.22 Also, since
2000,
the County has imposed certain storage,
handling, and display requirements on retail sellers ofpesticides.
23
In fact, the ultimately enacted
County notice and signage bill prompted a 1985 opinion of the Maryland Attorney GeneraL 70
Md
Op.
Atty.
Gen.
161 (1985). In that opinion, then.,Attomey General Stephen H. Sachs opined
that proposed County bill
was
preempted by
FIFRA,24
but that the bill "would not conflict with,
or be preempted by, State law."
Id
At 163. The Attorney General determined that "[a]lthough
State law regulates some aspects of pesticide application, it neither addresses the matters covered
by Bill No. 26-85 nor ousts local jurisdictions of authority to act in this field."
Id
In her letters to Delegates Reznik and
Barve~
Ms. Rowe acknowledges the 1985 opinion,
and asserts that it "does not settle the issue raised here." Ms. Rowe points out that "[s]ince that
time, Maryland law has changed
signific~tly.
and it now regulates signs and requires that
information be supplied to customers.,,25 The fact that the State law has changed significantly
since the Prince George's and Montgomery Counties began regulating pesticides is in itself
significant, because the lack of reference to preexisting local law is a factor to consider in deciding
whether the General Assembly intended to preempt a particular field. Generally, when the
legislature fails to mention preexisting local laws, the General Assembly
has
shown an intent
not
to preempt.
See, Ad+Soi/, supra,
307 Md. at 333;
Silnic/c, supra,
254 Md. at 322;
Annapolis
Waterfront Co., supra
284 Md. at 393;
National Asphalt, Supra,
292 Md. at 79;
Harker, Supra,
316 Md. at 698. Although it enacted provisions very similar to existing local laws in Prince
George's and Montgomery Counties, the General Assembly made no mention of these laws.
While certainly not dispositive, the General Assembly's silence with regard to existing local
pesticide regulation strengthens an argument that the legislature has intended to leave discretion
to local jurisdictions in the regulation of pesticide application.
Failed attempts to expressly preempt in
1992,1993
and 1994.
As previously discussed, existing State law covers pesticide registration and labeling, the
licensing and certification of pest control consultants and applicators, and lPM in schools, but is
Prince George's County enacted notice and signage requirements for pesticide applicators in 1985, and
the
Town
of Manchester, Maryland in Carroll County
has,
since 1979, had
the
following local ordinance:
21
§ 147-11. Pesticides, herbicides and fungicides.
It
shall
be
unlawful to apply a pesticide, herbicide or fungicide within the Town limits of Manchester without