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Agencies Can Soon Use Herbicides, Pesticides On State Lands Without Permit

By | March 7, 2013 - 5:34 pm

State agencies no longer need a Department of Environmental Conservation permit to use herbicides and pesticides on state property and rights of way. That’s unless it’s sprayed from an aircraft or directly into water. The DEC recently did away with the public review and permitting requirement for using the chemicals on state land. The agency called the permit process “burdensome” and said was not commensurate with the risk. Critics say that by eliminating public oversight, the DEC is endangering human health as well as fish and wildlife habitat.

Until now, the Alaska Railroad, the Department of Transportation and other state agencies had to get a DEC permit if they planned to treat their property, like roads or other rights-of-way, with herbicides or pesticides. The permit process meant they had to provide a detailed plan that went out for public review, comment and sometimes public hearings as well. Other state and federal agencies could also weigh-in before the DEC decided whether to issue a permit and those decision could be appealed. Permits are still required for spraying directly on water or by aircraft. The DEC says that’s because the increased risk of harm to public health and the environment warrants closer review.

However, the agency has eliminated that public and government review process for land-based pesticide use.

Pamela Miller, Director of the group Alaska Community Action on Toxics, calls that decision a serious breach of the public’s trust.

“Many of our roadways and certainly the railbelt are located in close proximity to drinking water sources, places where people fish, gather greens and berries. And to simply remove public notification and the right of the public to participate in decisions about these herbicides and pesticides is a very serious assault on our democracy,” she says.

The DEC changes come at a time when the legislature has eased restrictions on cruise ship waste and Governor Sean Parnell has asked the Department Natural Resources and other agencies to look at ways of making their permitting processes more efficient.

According to Miller, out of nearly 150 public comments, only a couple individuals and state agencies supported the DEC’s regulation changes. She says a couple were neutral and the rest were opposed. Her group has asked lawmakers to take a closer look at the issue:

“We do think this is a violation of rights and interests here that are grounded in the constitution of our state and these cannot be taken away. These are rights that can’t be taken away without due process. That includes notification, our right to know and the opportunity to be heard on decisions that can affect our health and well-being.”

Miller points out that if the DOT, for example, decided to spray herbicides on land along the roadways in southeast, they could do so without public review and comment, regardless of potential runoff into drinking water sources, salmon streams or other particularly sensitive areas.

That’s not just a hypothetical situation. In a letter supporting the proposed regulation changes last summer, DOT Special Programs Manager Dan Breeden wrote that the agency had a direct interest because they intended to, “….apply herbicides in our rights-of-way, airports, and at some facilities.” The agency has used only mechanical means to clear brush for more than 20 years according to Breeden, who described several goals for vegetation control including highway vehicle safety, better visibility for pedestrians, bicyclists and animals along the road and better drainage.

Similar comments came in from the Alaska railroad, which said it, “….must apply herbicides to its right-of-way and other track-related facilities to address serious safety concerns and regulatory requirements related to the growth of vegetation…..”

While those agencies will no longer need a permit to use herbicides, the DEC says they will still have to publish public notices in a newspaper 30 days before the chemicals are applied.

“They do have to do public notice that they’re doing this so people are aware of what their plans are and can, you know, choose to avoid the area or what have you. They also have to notify DEC so we have the opportunity to inspect the application if we decide we need to.” says Bob Blankenburg, DEC Solid Waste and Pesticides Program manager.

Blankenburg says the permitting process was a problem for state agencies dealing with what he calls time-sensitive pest-management issues, “…such as invasive weeds along right of ways and in a lot of cases the inability to treat those promptly results in the weeds spreading and creating a greater problem that either needs to be addressed in the future or is not able to be addressed.”

In its written response to public comments on the issue, the DEC emphasized the federal government’s registration and labeling requirements for pesticides and maintained that the Environmental Protection Agency’s analysis of each product was, “sufficient to protect human health and the environment from unreasonable adverse effects.”

Instead of a permit, the new state regulations call for an Integrated Pest Management Plan that must be followed before pesticide and herbicide applications can occur on state-owned lands. According to Blankenburg, that requires agencies to evaluate the extent of the problem and how it should be addressed, “And then consider non-chemical means first before they choose chemical means. So, in some cases that could result in them doing that analysis and choosing not to use herbicides or pesticides.”

But, since no permit is required, that decision would be left up to the agency that’s considering the use of herbicides, not the DEC.

Anchorage Representative Les Gara was among those who submitted comments opposing the changes. He calls the integrated pest management plan requirement meaningless.

“It doesn’t do anything in terms of making sure we protect our fishing streams, nothing substantial. You can still spray pesticides along a fishing stream and according to DEC, that’s OK without any public comment at all. You can still spray in an area where…..it might be a vein that leads to somebody’s water-well, DEC won’t know. You might spray in an area where kids play or families hike. DEC won’t know,” says Gara.

He says his office is considering legislation on the issue.

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