NSTAR/Eversource and Other Utility Spraying: Your Voice Needed

Submitted by Sue Phelan, GreenCAPE

In September, GreenCAPE was invited to provide informational materials and direct input relating to the Eversource spraying on electric utility rights-of-way (ROWs) by the Massachusetts Attorney General Martha Healey’s office following her public forum in Barnstable where we raised our objections to Eversource’s continued violation of our civil liberties and our health. In response, the Asst. Attorney General of the Environmental Protection Division of the Office of the Attorney General wrote: “We are aware of the situation and are working to address the concerns you have outlined…In advance of making herbicide applications, Eversource is required to notify residents and businesses that abut rights-of-way……We recognize that Eversource must meet its obligations to notify Cape residents and businesses of scheduled herbicide applications on nearby rights—of-way, so abutters can make arrangements they deem advisable in advance of any herbicide applications to minimize potential impacts from those applications…..Eversource’s compliance with its Yearly Operational Plan, its Vegetation Management Plan, and applicable pesticide laws and regulations is essential to protect public health and the environment and we are committed to working closely with Eversource, MDAR, and individuals like you to help achieve this goal. We recognize and appreciate the concerns you raise, and welcome any additional information you can provide about Eversource’s past compliance or its practices during the next spraying season, as we work to address this issue.” Certainly a more positive response than we have ever gotten from MDAR (the the state regulator for all ROW spraying)! The AG’s Office cannot act without evidence so if you want to protect your water and your health, promptly report any lack of spray notification, human exposure, overspray or contamination of gardens, food crops, spraying in windy conditions, spraying in wetlands or water bodies, etc, to GreenCAPE (508.494.0276) and the Attorney General’s Office. Regularly review TIPS TO PROTECT YOUR FAMILY FROM ROW (Rights of Way) SPRAYING because there are other public agencies that spray rights-of-way (ROWs) with similar lack of notification to the public such as, railroads and public transit lines (e.g. MBTA).

In November, GreenCAPE submitted public comment to the US EPA Pesticide Registration Review on Human Health and Ecological Risk Assessment for Fosamine Ammonium- the active ingredient in the herbicide Krenite which is used in the highest volume statewide on the Eversource electric utility rights-of-way (ROWs) throughout the Northeast.  This herbicide has been in commerce for decades without having any human health risk assessment because –according to the EPA-“There are no residential uses for fosamine ammonium, therefore, a residential exposure risk assessment has not been conducted.” In addition, the pesticide label –which has the force of federal law behind it-does not list any residential uses. US EPA has defined residential use as follows: “Use of a pesticide directly to humans or pets, or application of a pesticide in, on, or around any structure, vehicle, article, surface or area associated with the household, including but not limited to areas such as non-agricultural outbuildings, non-commercial greenhouses, pleasure boats and recreational vehicles; or around any preschool or day care facility.” Sounds like the state regulator MDAR has approved fosamine ammonium for residential use where the Feds have NOT though fosamine ammonium “has not undergone thorough health testing as it was not anticipated to be used on residential properties.” But, that’s exactly where it is being used! We believe the use of fosamine ammonium/Krenite by Eversource on residential properties that interface the ROWs is a violation of FIFRA and EPA registration since “there are no residential uses for fosamine ammonium.” It may be that our constant reminder of this discrepancy to MDAR that has brought about this sudden Review on Human Health and Ecological Risk Assessment of Fosamine Ammonium by US EPA. Currently there are no food/crop uses or residential uses for fosamine ammonium nationally or in MA. However, we know that residential properties overlap, interface and abut the electric utility rights of way throughout Cape Cod and presumably other mainland properties in the utility’s service area. The Massachusetts Department of Agricultural Resources (MDAR) approves the use of fosamine ammonium/Krenite on residential properties that overlay electric utility rights of way in the Yearly Operational Plans (YOP) though EPA has not registered fosamine ammonium for residential use using the excuse that the residential properties are also rights-of-way. The property owners and their animals as well as wildlife have direct and indirect exposures to herbicide drift and residues on garden crops and wild/cultivated berry bushes, children’s play sets and sand boxes, and their very homes. The use of fosamine ammonium on inhabited utility ROWs should be disallowed until more substantive proof of safety is forthcoming. To this end, we have requested Silent Spring Institute to include all the herbicide formulations used by Eversource in Massachusetts in their new high through-put screening project. Fingers crossed they will be agreeable to helping all our at-risk communities throughout Massachusetts!

There are a few pieces of legislation related to ROW spraying to familiarize yourself with:

S478 Wolf (D-Harwich) and H3553 Walsh (D-Framingham). The goals of these bills are laudable but, as always, “the devil is in the details,” and the details don’t make sense. The legislation would require the vegetation management proposer (e.g. a public utility or public transit system) to negotiate with any community that did not want the said proposer to use chemicals for vegetation management within their community. (So far, so good….unless this negotiation has to take place annually-this important detail has yet to be worked out…) A potential negotiated agreement would be that the community would arrange for the work to be done (How can any town “arrange for the work to be done” on property it doesn’t own or have easement over?) and the proposer would contribute at least the amount of money they would have spent using chemicals. (How likely is this public utility –a mega corporation- to share this information which they have refused to share for the past 7 years?) Though that might mean that the community might bear some additional expense, (How likely is it that YOUR town would have these additional monies?) it would also mean that the groundwater would be better protected. If the entity seeking to control the vegetation and the municipality are unable to come to an agreement within 60 daysof beginning discussions (an unreasonable period time given the less than rapid pace of municipal anything. The utilities have a bevy of lawyers waiting to negotiate but it may take a town that long to decide who to send to the negotiation! But that person would be key to any successful outcome), the disputes shall be decided by a mutually-agreed upon arbitrator. (How likely is it that a professional arbitrator will have adequate knowledge about herbicide application and the immediate and future health impacts?) Should a reasonable no-spray agreement be offered to a municipality and an agreement is not reached within 90 days, the entity seeking to control the vegetation may apply its choice of pesticides/herbicides, as approved by the Massachusetts Department of Agriculture. (It makes no sense to DEFAULT to spraying after a brief period of “arbitration.” The utility would only need to drag out the arbitration past 90 days so they can spray. If the default was NOT to spray, then this bill might potentially be workable. As currently written, it is not despite the hopes and intentions of the authors and sponsors.)

These last 2 bills might be beneficial to most communities who have experienced extreme tree removals by the utilities but neither bill relates to herbicide spraying. In a related concern– tree removal does NOT exempt the property from follow up herbicide spraying to ensure the vegetation or roots remaining do not re-sprout.

I trust that the politically savvy MBCC members won’t be snookered into testifying for or supporting either S478 or H3553. Though the intent might have been to protect the water and at the same time to financially benefit private landscapers, the bills as currently written won’t directly benefit ROW abutters, municipalities, or protect any water supply because they force more costs onto residents and municipalities and default to spraying as the last resort.

Despite what appears at the moment to be meager rewards for our continued strenuous opposition to the tyranny of a Very Big Utility and its associated lackluster bureaucracy, always take heart from Margaret Mead:

Never Doubt That A Small Group Of Thoughtful, Concerned Citizens Can Change the World. Indeed It Is The Only Thing That Ever Has.