Submitted by Sue Phelan, info@GreenCAPE.org
On Thursday, June 11, the Massachusetts Department of Agricultural Resources (MDAR) approved the 2015 Eversource (formerly NSTAR) Yearly Operational Plan (YOP) for Cape Cod and Martha’s Vineyard despite serious and widespread objections from Cape residents and tourists. If you vacation on Cape Cod, you should know that the following towns have been targeted for herbicide spraying as part of the NSTAR/Eversource plan: Barnstable, Bourne, Chatham, Dennis, Eastham, Falmouth, Harwich, Mashpee, Orleans, Sandwich, Truro, Wellfleet, & Yarmouth. Many towns throughout the Commonwealth will be sprayed as well. To find NSTAR’s plan for your town, click here.
MDAR and the MA State Pesticide Bureau have simply not met their burden to approve the 2015 NSTAR/Eversource Yearly Operational Plan (YOP) and have failed to inspect and enforce the previous YOPs and the related state regulations. NSTAR/Eversource’s YOP does NOT satisfy the requirements set forth in M.G.L. c.132 B and 333CMR 11.00 as it stated in its approval. But of even more immediate concern, there is evidence on day-one of implementing their 2013 and 2014 YOPs that NSTAR/Eversource operated outside of the law. NSTAR/Eversource admitted to spraying on Monday November 18, 2013 (and appears to have done so on subsequent days) when conditions did NOT meet label regulations (wind data) . M.G.L. c. 132 B Section 6A states: Section 6A. “No person shall use a registered pesticide in a manner that is inconsistent with its labeling or other restrictions imposed by the department.”
In the fall of 2014, NSTAR/Eversource contractors –without notice–sprayed residents and animals in Harwich even after the resident requested them to stop. They refused to tell the property owner what they had sprayed on the her property, person, and animals. The MDAR inspector did not sample the area for 3 weeks—and after two major storm events—and then reported the samples showed no evidence of overspray. In addition, the pesticide that was applied in the highest volume was never included in the analysis!
NSTAR/Eversource’s spraying of vegetation with herbicides on the power line easements on Cape Cod in 2013 resumed after a brief moratorium with a publicity campaign that included a flagrant and public violation of the label instructions and statements from NSTAR/Eversource that the herbicides are “safe”. An NSTAR/Eversource employee was shown on a local newspaper video handling the vegetation while it is still “tacky”- implying that this is a safe practice and pesticide exposure is harmless. The trust of Cape Codders has bent beyond the breaking point and the herbicide spraying needs to be abandoned in favor of cutting, mowing, or other non-chemical alternatives. These rights-of-way (ROWs) are already clear. The contractors going down the rights of way to spray could just as easily cut the small saplings down instead of spraying them with pesticides. Many communities have been willing to work with NSTAR/Eversource and the state agencies to develop a vegetation management plan that is suitable for residential, public properties and water supplies.
The utility NSTAR/Eversource continues to ignore the federal law on pesticides and label on the pesticide package or container with the accompanying instructions which are a key part of federal and state pesticide regulation. The label provides critical information about how to handle and safely use the pesticide product and avoid harm to human health and the environment. EPA has said that, “The label is the law.” This means that using a pesticide in a manner that is inconsistent with the use directions on the label is a violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and can result in enforcement actions to correct the violations. In addition NSTAR/Eversource employees and spokespersons frequently refer to the “safety” of the spraying practice. The claim by NSTAR/Eversource or anyone else describing the pesticides as safe is false and misleading. Pesticides are not regulated to be safe but are rather are registered (not approved)by the EPA if it determines that it will not generally cause “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.” This risk/benefit criteria does not ensure “safety”. The Code of Federal Regulations Title 40 Protection of the Environment, Part 156 (5) Notes as “False or misleading statements” the following:
“Claims as to the safety of the pesticide or its ingredients, including statements such as “safe,” “nonpoisonous,” “noninjurious,” “harmless” or “nontoxic to humans and pets” with or without such a qualifying phrase as “when used as directed”; and (x) Non-numerical and/or comparative statements on the safety of the product, including but not limited to:(A) “Contains all natural ingredients”;(B) “Among the least toxic chemicals known”(C) “Pollution approved”. In 1996, Monsanto paid a $50,000 fine and agreed to “cease and desist” promoting glyphosate as “safe” after New York’s Attorney General sued the company.
In a Cape Cod Times newspaper article it was reported that “NSTAR/Eversource officials say their vegetation management program accounts for less than 1 percent of the total herbicide use on the Cape (more than 2,000 gallons a year on 150 miles of rights-of way a few hundred feet wide), that it’s safe, and that, combined with other measures, it’s the most effective…” This is not the first time that NSTAR/Eversource officials have attempted to mislead their customers and the general public that their herbicide program is safe. Generally NSTAR/Eversource officials refer to the acute lethal dose and claim that the pesticide is less toxic then caffeine or nicotine; implying that the lethal dose of the pesticide is the only toxicological concern. Their arborist reports in public and private discussion that the herbicides are safe enough for his children to drink!
However, the pesticides sprayed on utility rights-of-way in back yards, gardens, children’s play sets, public hike and bike paths have not been proven safe. Krenite sprayed in the highest volume of all the herbicides is not allowed for residential use (even though NSTAR/Eversource sprays it on residential property) because it has not undergone thorough health testing as it was not anticipated to be used on residential properties. California and Arizona do not allow any use of the product in their state. The other herbicides used by NSTAR/Eversource have evidence of potential impacts on the nervous system and the endocrine system among other effects. Since the IARC (International Agency for Research on Cancer) recently reported glyphosate as a “probable human carcinogen,” the entire NSTAR/Eversource vegetation management scheme and the MDAR approval of the YOP should be given deeper scrutiny by another party before spraying commences. A high percentage of the ingredients in the 5 herbicide formulations sprayed by the utility in back yards and public spaces remain undisclosed as trade secrets but they are biologically active. Neither pesticide companies nor the EPA should be able to keep us in the dark about the identity and toxicity of these chemicals.
Approval of the YOP is DEPENDENT on it being implemented within the parameters of the law. If the subcontractor violates the law it follows that the YOP has been violated and the operation should be suspended. Because FIFRA, the MA Pesticide Control Act, and the YOP have been violated in several instances, it is reasonable to request the Attorney General who enforces state law to suspend the spraying operation and investigate the infractions.
NSTAR/Eversource’s current YOP is clearly not meeting its current VMP (Vegetation Management Plan) Goals and Objectives which demand that they “maintain the flexibility necessary to accommodate unique situations and the need for more appropriate techniques in accordance with new regulations, scientific advances, operational experience and/or comments from municipalities, state agencies and contractors” or that they “promote positive public relations with landowners, state and municipal officials, contractors, and the public.”
NSTAR/Eversource has disregarded the firmly expressed opposition of communities to chemical maintenance, but in addition their contractor is now putting these same communities at further risk by its reckless and illegal behavior on the rights-of-way. Firm and decisive action needs to be taken now to stop the spraying of pesticides and to discipline NSTAR/Eversource for label violations and their false and misleading statements to the public. We are requesting Attorney General Maura Healey to investigate these questionable practices that and to suspend this careless operation.
See previous MBCC newsletter articles or www.greencape.org for more background on the spraying of ROWs in NSTAR’s service areas throughout New England.
Please make the “people’s lawyer” Attorney General Maura Healey aware of your concerns today and send a copy of your objections to your town officials and state representatives as well.
Maura Healey, Attorney General
Commonwealth of Massachusetts
One Ashburton Place
Boston, MA 02108-1518
maura.healey@state.ma.us