Local Ordinances: The New Pesticide Battleground

An increasing number of local governments have passed ordinances restricting or banning the use of certain pesticides recently and this nationwide trend could have significant implications for the pest control industry.

Pest control operators have seen (and will more than likely continue to see) more and more of the chemicals in their arsenal under attack by lawmakers. Just this past August, the Environmental Protection Agency (EPA) implemented the first stage of the Food Quality Protection Act (FQPA), which resulted in the banning of two organophosphates. Although FQPA has been grabbing most of the headlines, efforts by special interest groups to ban pesticides on the local level are cause for concern in the pest control industry.

The local level has become a popular battleground for anti-pesticide groups who have found little success pushing their agendas on the state and federal levels. These organizations have been able to get some pesticides banned on certain city- and/or county-owned property throughout the country. Anti-pesticide groups have gained momentum from these victories, furthering their beliefs that they have protected the public from possible "cancer-causing" chemicals.

Meanwhile, groups in favor of keeping pesticide usage as a viable control option n argue that when a pesticide ban is in place, the public is more at threat from diseases by pests and taxpayers are burdened with hidden costs.

Why have anti-pesticide groups taken their campaign to the local level? Quite simply, passing legislation locally gets results and gets results quickly. "They (anti-pesticide groups) have found that trying to pass legislation on the state level has been a waste of time and resources," said Gene Harrington, manager of government affairs for the National Pest Control Association (NPCA). "They’ve found it easier and quicker to pass legislation on the local level."

THE HOT SPOTS. The most notable pesticide ban enacted on the local level was in the City and County of San Francisco in 1996. Other municipalities have followed San Francisco’s lead. On March 2, 1999, the New York Public Interest Research Group (NYPIRG), Environmental Advocates and the New York Citizens Against Pest Control (NYCAP) pushed an agenda to eliminate pesticide usage on all Buffalo, N.Y., city-owned property in three years. The "Sunset Ordinance," as it is called, was passed on March 23, 1999, making Buffalo the second major city to put into effect a program designed at phasing-out the use of pesticides on city-owned property.

Other municipalities where pesticides have been banned on city- or county-owned property include: Santa Fe, N.M.; the City of Albany and Albany County, N.Y.; Monroe County, N.Y.; San Luis Obispo County, Calif.; and Carrboro, N.C. Other cities considering similar legislation include Gaithersburg, Md.; Columbus, Ohio; and Albany, Calif.

Anti-pesticide groups began seriously concentrating efforts at the local level following the 1991 U.S. Supreme Court case Wisconsin Public Interferon vs. Mortar. In that case, the Court ruled that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of 1947 did not explicitly or implicitly preempt the regulation of pesticides by local governments. In essence, the Supreme Court gave local jurisdictions the right to regulate the use of pesticides on city-owned property, unless prohibited by state law.

Banning pesticides via the state route gained more momentum in 1996 when the San Francisco Board of Supervisors voted unanimously for a sweeping ban of pesticide use in all city departments, including city buildings and grounds, public housing, parks and golf courses. The ordinance, chapter 39 of the San Francisco Administrative Code, has been working in three phases.

Phase I: Section 39.3. Effective January 1, 1997, no city department shall use any Toxicity Category I Pesticide; any pesticide containing a chemical identified by the state of California as a chemical known to the state to cause cancer or reproductive toxicity pursuant to the California Safe Drinking Water and Toxic Enforcement Act of 1986; and any pesticide classified as a human carcinogen, probable human carcinogen or possible human carcinogen by the United States EPA, Office of Prevention, Pesticides and Toxic Substances.

Phase II: Section 39.4. By Jan. 1, 1998, any city department that uses one or more pesticides other than the pesticides subject to the ban under Section 39.4, shall reduce by fifty percent the cumulative volume of such pesticides that is used in the calendar year 1996.

Phase III: (also part of section 39.5). By Jan. 1, 2000, any city department that uses one or more pesticides subject to the ban under 39.3 shall reduce by one hundred percent the cumulative volume of such pesticides that it used in calendar year 1996, except for those pesticides that the Board of Supervisors has reviewed and approved for use for purposes of protection of public safety or public health, based on the recommendation from the Commission on the Environment.

SAN FRANCISCO AFTERMATH. From the day it was enacted, the San Francisco ordinance has been stirring up controversy. Anti-pesticide groups claim that the ordinance is helping to produce a cleaner, safer environment. According to the Commission on the Environment, City of San Francisco and San Francisco County, since the ordinance and subsequent implementation of an IPM program were put into place in 1997, use of toxic pesticides in the San Francisco’s 70 departments and bureaus has been greatly reduced.

But the city has also been finding out that certain pesticides it banned are, in some circumstances, still needed. For instance, in October 1998, the Commission on the Environment, City and County of San Francisco extended its exemptions on the use of antimicrobial agents in its IPM program. In addition to the exemptions that were already in place under the Chapter 39 ordinance, the commission granted blanket exemptions for antimicrobial uses to control pathogenic microorganisms in the treatment of water and facility heating, ventilation and air conditioning (HVAC) cooling water systems and public fountains. The commission also extended the exemption of all other antimicrobial agents that were supposed to be phased out by Jan. 1, 1999. The exemption is now in effect until Jan. 1, 2000.

Despite the fact the chemical ban is restricted to only city-owned property and PCOs can continue to use pesticides on commercial and residential property within the city, the pest control industry has felt the effects of the ordinance. Hal Stein, president of Crane Pest Control, San Francisco, said his company and others like his that continue to use some chemicals for pest control work have been affected in ways they had not anticipated. "We’ve been finding that the ordinance is more far-reaching than we first thought," Stein said. "Some of the buildings we service are leased to the City of San Francisco, so we have to comply with the ordinance." For instance, Crane does not have the San Francisco International Airport as one of its accounts, but it does have a number of accounts that are located within the airport’s facilities (i.e., various airlines). Crane has had to comply with the ordinance in those accounts. Stein added that his company no longer bids on city-owned sites such as hospitals and schools because of the ordinance.

CHANGING THEIR WAYS. But others believe that forcing the industry to adapt to the ordinances is a small price to pay for what it considers a healthier, safer environment. In fact, Jay Feldman, executive director of the National Coalition Against the Misuse of Pesticides (NCAMP), said pesticide bans can make for a more responsible pest control industry. "It creates opportunities for PCOs who use alternative approaches," he says. Feldman claims that pest control companies are now in competition with one another to provide safe, effective services using other means of control such as traps and other mechanical devices.

Stein, on the other hand, believes that the economic impact and health-related concerns brought about by local pesticide ordinances make them irrational. For instance, California school districts that require a four-day notification prior to spraying will feel the crunch, Stein says. In addition to paying for the actual services, school districts will have to pay for man-hours that technicians accumulate simply driving back and forth from the schools, posting signs and providing routine inspections.

"This is good money to me because I’m not putting any chemical out," Stein says. It’s not, however, good news for school systems, which will feel the economic impact sooner or later, Stein says. School districts generally award their accounts to the lowest bidder. Oftentimes the bidder is hungry for business and may incur the expenses initially, "but when this program gets two, three or four years into existence, somewhere that money is going to be charged as a basic price," Stein adds.

Feldman acknowledged that a pesticide ban is more costly to the public, but he said it is money well spent. "The economy certainly figures into it, but we have to consider the bottom line," he said. "We are weighing a slight increase in cost against better public health."

But will the public really gain health benefits from the pesticide ban? Stein doesn’t think so. In fact, he believes the public is more at risk from diseases. "It’s just not good medicine and it’s that simple," Stein says. If people are not protected properly and in a timely fashion against rodents, cockroaches, etc., it is not in the public’s best interest to ban pesticides, he says. "It is just a matter of time before the public wakes up and says ‘wait a minute, we are getting sick here, there is something wrong here.’"

PESTICIDE BANS AND IPM. Groups in favor of keeping pesticides as a viable option do not want them to be the major means of control. Both pro- and anti-pesticide usage proponents agree that IPM programs that use fewer chemicals are the wave of the future. The difference is that anti-pesticide groups believe that the varied approaches within an IPM program don’t need to include chemicals, while pro-pesticide use groups believe chemicals are still needed on at least a limited scale.

Fred Langley, manager of state government operations for Responsible Industry for a Sound Environment (RISE), said not allowing technicians access to chemicals hampers IPM efforts. He said certain pesticides are needed for an effective IPM program. Langley said the best IPM programs address pest control problems with a variety of methods including mechanical, biological or, in some cases, chemical controls. If a community has adopted an IPM program and later enacts a pesticide ban, then that pesticide ban "eliminates an important part of a technician’s toolbox," Langley said. "To do so puts people at risk."

LEADING THE FIGHT? Although pushing pesticide-banning legislation on the local level is a relatively new approach, the issue that both pro- and anti-pesticide groups differ on has been played out before. A line has been drawn between the groups. One group believes that the public’s health is at risk from pesticides and the other believes that people are more at risk from the pests that the chemicals control.

This issue will continue to be debated. And all indications are that the anti-pesticide groups will continue to push for legislation to ban or restrict pesticide usage at the local level. "We believe that the federal government’s regulations on pesticides have been inadequate and passing legislation on the local level is one way we can address this deficiency," Feldman said.

Harrington said the ordinances will bring more bureaucracy into pest control and more frustrations not only to PCOs, but also to custodians and janitors who work for cities or counties with pesticide restrictions. The biggest impact local ordinances have on the pest control industry is in perception, he said. "People will think that pesticides have been banned, when that is not the case," Harrington said.

However, Harrington added that municipalities that have had success on the local level have helped galvanize the anti-pesticide movement. But the industry needs to learn to deal with these local ordinances instead of reacting to them after they’ve passed. (See related story on page 136.) "If enough local ordinances are passed, the state may shrug its shoulders and do away with preemptions," Harrington said. "That is one reason why PCOs need to get involved in city departments, to make sure no cities pass ordinances without the input from the pest control industry."

The pest control industry is not standing idly by while local pesticide bans are being enacted. The most recent, and perhaps biggest, united effort to bring about awareness and express concerns over local pesticide bans occurred at a forum hosted by Responsible Industry for a Sound Environment (RISE) June 29-30 in Washington, D.C.

At the meeting, chief staff leaders representing 10 specialty pesticide associations discussed issues of mutual concern. The primary focus was on heightened activist success on the local level and the need for coordinated industry grass-roots action.

"More and more communities are approving pesticide-restrictive policies, particularly in schools," said Allen James, RISE executive director. "If the specialty pesticide industry is to be successful in combating such negative actions, it must take a proactive and united approach. We need the help of industry reps in these areas to alert us of local pesticide bans as they arise."

Pesticide use legislation has been occurring with more frequency at the local level. Here’s a look at a number of municipalities that have enacted or are contemplating pesticide bans:

Parents in the City of Albany, Calif., have begun lobbying to eliminate the use of pesticides in and around all schools. The action was taken in response to a May incident in which students complained about feeling nauseous and smelling a foul odor after the school’s football field was sprayed with the herbicide Roundup.

Templeton Unified School District in San Luis Obispo County, Calif. formally adopted an IPM program that permits pesticides as a tool only as a last resort and in the least toxic formulation that manages the infestation, stresses the use of biological control and discourages individual teachers from bringing insecticides to school.

Carrboro, N.C., adopted a "least toxic" IPM policy that applies to city-owned property this past March.

Columbus, Ohio, is considering reducing its use of pesticides. The city was recently visited by Dave Frieders, the agricultural commissioner for the City and County of San Francisco.

A pesticide use reduction plan in Santa Fe, N.M., is proving costly. The Santa Fe City Council considered reducing evening bus service on four bus routes in order to fund the reduction plan.

The city of Gaithersburg, Md., and Monroe County, N.Y., are both considering a ban similar to the one in San Francisco.

Source: National Pest Control Association