Listening to the comments of both supporters and opponents of the current draft, the following revisions have been proposed that I believe are responsive to requests we have had. I believe these changes will make the ordinance more effective.
- The precautionary principle definition used previously has been criticized as too far reaching – the revisions propose using a definition that has been signed off on by former President Bill Clinton and endorsed by the American Public Health Association, the largest association of public health professionals in the world. We’ve heard criticisms that the City has to prove there is a problem first, by documenting exactly how much of each pesticide is used and how much harm they cause. That is the very point of the precautionary principle. More than 400 residents have signed a petition indicating they think pesticides are a major health concern. We know that EPA has to weigh economic benefits of higher crop production against health concerns when they decide whether to approve (or take away the approval of) a pesticide. The Council and the community have the opportunity to decide what level of risk we want to take, but the very point of the precautionary principle is that we don’t have to wait for definitive and exhaustive scientific evidence before acting to protect the health of residents.
Environment Committee Response
- The draft Environment Committee report asks us to provide information about EPA's minimum risk pesticides - revisions add that as part of the information that the city should provide to the community.
- An earlier draft Environment Committee report identified additional compounds for addition to the list of restricted pesticides and those pesticides have been added to the restricted list in the draft ordinance. For example, the herbicide MCPP.
Keeping the City from Having to Become Pesticide Experts
- We've heard criticisms that the draft puts the city in the place of having to become expert in pesticides. Proposed changes eliminate the ability of the city manager to add pesticides to the restricted list (future changes would have to be made by Council). The City Manager never needs to become expert in pesticides with this change to the draft.
Using Best Science
- There has been criticism that we are not taking advantage of EPA and other expertise already at work to identify high risk pesticides. Revisions address that by making our list inclusive of the best agency scientists have to offer. Specifically, three very carefully defined and long-standing lists of pesticides are added to the proposed registry. EPA's lists of Likely Carcinogens and Restricted Use Products and the European Commission's list of Category 1 Endocrine Disruptors. If agencies change (i.e. add to) these lists then that 'best science' would automatically become part of our list. While the draft Environment Committee report indicated that these lists are often out of date and too slow to be amended to reflect new science, the approach proposed combines the best of both worlds - Council starts with a list of 20 substances and the agency lists that will evolve over time.
Better Protecting Public Health
- We've heard concerns that these limits don't go far enough - that too many pesticides are still allowed in our community. As mentioned in the previous bullet, we've added a number of other chemicals identified by the Environment Committee draft report or as a risk by scientific experts at EPA and the European Commission pesticide authority.
- In addition, without restricting use, revisions proposed create new notification requirements that would now apply to ALL pesticides applied to lawns for cosmetic purposes. The simple act of requiring people to put up a sign is easy to do but will likely make people think slightly more carefully about what they are applying and why. It also helps address the question of how common pesticide application is in our community. It will allow future Councils and the community to have more information about pesticide use on which to base any decisions that arise in the future.
How to Apply this to Commercial Applicators of Pesticides
- We've heard a request for commercial applicators to be treated differently. I think doing so is a mistake. These businesses are trained to use pesticides whereas average residents are not.
- However, I think there is value in separating commercial applicators out from property owners/tenants and the revisions propose a section just for commercial applicators. Revisions propose moving 1 year forward the date at which restrictions start applying to commercial applicators. I think this is important for two reasons. First, there are fewer of commercial operators and educational outreach about the law should be easier - they are professionals after all. Second, by creating a restriction on commercial application one year in advance it allows us to a) collect data on pesticide use and b) have the commercial applicators become part of the education effort. How? Because for 1 year they will be visiting homes and explaining to residents what they will use, why they are using different chemicals and of course posting notices about what they are doing. That is a wide-reaching and visible education campaign in and of itself.
Application to Property Owners and Tenants
- A separate section is addressed to property owners and tenants. The date restrictions are one year later than for commercial applicators - approximately 2 years from now - giving a long time for education to work before any fines would be levied.
Making it Enforceable
- I think a goal of most public policy efforts is to make enforcement something that is rarely needed. For example, City Code establishing recycling makes failure to recycle a Class D infraction ($100-$200 fine), but fines are rare because most people recycle willingly today. Revisions to the ordinance describe educational efforts in more detail and establish lengthy periods during which only warnings would be issued for violations.
- We've heard that enforcement will be impossible or that it will pit neighbor on neighbor. Many of our policies work by involving residents. The noise ordinance. Noxious growth ordinance. Tree ordinance. Housing code violations. And many other rules. For example, unless the stump of a recently cut tree is in a front yard and visible from public property, a neighbor has to let our arborist into their yard to see a potential tree code violation in a neighbor's backyard. So the question is whether we can find a way for neighbors to provide a 'tip' to the City but then not have to be in the middle of subsequent enforcement steps.
- The revisions propose something that makes the ordinance much, much more easily enforceable without requiring much more than that 'tip' from watchful residents or city staff. New language makes it a requirement to post a notice about ANY application of a pesticide to a lawn. Thus, the violation becomes whether there is or is not a sign visible from the front of the property when spraying occurs. Like our noise ordinance where someone has to notice the noise while its occurring and complain about it, this change would require someone to see pesticides being applied to a yard and also note the absence of a sign, but then its a simple matter to either snap a picture and send it to staff or call staff and ask them to come to the property. The violation is the absence of notice.
- The revised version maintains that it is also still a violation for the spraying of a restricted pesticide. That could be documented by the evidence of a pesticide container, the willing admission of a person when asked or testimony from a neighbor, but enforcement would more often be at the posting stage. My guess is that such violations would be rare and may still be a challenge to enforce but most of the enforcement would be addressed by the far simpler posting requirement.
- We've heard complaints that we jump right to enforcement and skip education - that the ordinance focuses too much on penalties. First, those arguments are untrue. As originally proposed, the ordinance doesn’t impose any restrictions for 2 years. And educational outreach occurs for that whole time in between.
- That said, revisions add the earlier phase in of commercial restrictions (as noted above) in part as an education tool. Revisions also add more information about minimum risk pesticides as an education tool, requirements for the city to provide materials to residents one year before restrictions come into place as an education tool and posting requirements that are strengthened as an education tool.
Lowering Penalties - Making the Ordinance Less Punitive
- We've heard concerns that the ordinance is too punitive, treating generally well-meaning residents as if they were not. Revisions propose a number of changes to address this:
- There are now warning phases (as allowed by our code) for six month periods for failure to post and for applying a restricted pesticide. In other words, a violation would only result in someone getting a warning from the city.
- The fine for failing to post a notice about using a pesticide on your lawn would be small - $25-$50, less than the cost of a permit to cut down a dead tree. This is our lowest class of penalty (Class G) and I believe creates a deterrent without being overly punitive.
- Revisions propose a lower fine for a first offense of actually applying a restricted pesticide to Class D ($100) and only repeat offenses would attract up to a Class B citation ($800).