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Can the City of Burlington Toughen Its "Lawn Care" Regulations?

Local Matters



As it stands, Burlington’s law regulating the use of pesticides and herbicides is among the toughest in Vermont. Violators can be fined up to $500, and even face criminal penalties, for spraying chemical insecticides and weed killers near Lake Champlain and its tributaries.

But some members of the Burlington Board of Health think the regs don’t go far enough because they only apply to a 500-foot “buffer zone” around the lake and not to the whole city. James Vos and Fern Crete have spent two years lobbying for a citywide pesticides-herbicides ban. Earlier this month, they asked lawyers in the legislature whether the city can do that without preempting state law.

The answer from Montpelier: Probably not. State law would have to be changed.

State statutes give the Vermont Agency of Agriculture, Food and Markets sole authority to control the sale, use, display, treatment and disposal of pesticides and pesticide waste, according to the written opinion of Legislative Council staff attorney Michael O’Grady released last week.

The Burlington ban was enacted in 1992 using a section of the city charter that empowers the city to protect the waters of the state and the health and welfare of its citizens, says Gene Bergman, a city attorney.

The state hasn’t challenged Burlington’s regulatory powers, and the city hasn’t sought to expand them. Bergman is confident the city can defend the ordinance as written, because it is authorized by charter powers. He suggests expanding pesticide policing in Burlington could touch off a turf war with the state.

“You can’t prohibit what the state allows, or allow what the state prohibits,” explains Bergman, who first proposed the pesticides ban as a city councilor two decades ago.

The pesticides-herbicides ordinance prohibits their use within 500 feet of the lake or its tributaries without written permission from the city. Beyond these zones, homeowners and lawn-care companies can use the products, but must post signs listing pertinent information: the chemicals being used, the data about and time of application, phone numbers of poison control, and a fluorescent green symbol commonly known as “Mr. Yuk.”

Over the years, lawn-care companies and other businesses have secured waivers allowing them to spray weed-killers inside the buffer zone — including a petroleum company that sprayed herbicide adjacent to a popular city beach last summer. Homeowners who were reported for improperly posting pesticide lawn signs have been warned rather than fined. Vos complains that such actions suggest the city isn’t serious about curtailing chemical use.

“My feeling is, if we’re going to be serious about educating the public about the toxicity of chemical pesticides, we can’t let it slide all the time,” he says.

Vos was the lone Board of Health member to vote against granting Global Companies LLC permission to spray the herbicide glyphosate, the active ingredient in Roundup, over a seven-acre area of its oil tank farm on Flynn Avenue, adjacent to Blanchard Beach and Oakledge Park.

The board asked Global Companies to consider using “matting” to suffocate the weeds, but the company said it would be cost-prohibitive — “hundreds of thousands” of dollars. At $1600 per treatment, herbicides were the cheaper alternative. The board approved the spraying on a 4-to-1 vote.

“That’s where children go swimming,” Vos says, noting that only a chain-link fence separates the tank farm from the public park. “These kinds of herbicides don’t care about fences. That slopes right down into the lake.”

In September, the Winooski Valley Park District asked for and received permission to apply the herbicide Rodeo, also made from glyphosate, to stop the spread of invasive plants in the wetlands around the Ethan Allen Homestead. The phragmites and knotweeds were crowding out native plant and animal species and threatened to create a monoculture.

The park district sought the herbicide exemption after a decade of unsuccessful attempts to control the plants by ripping them out or smothering them with tarps. They applied the herbicides in targeted doses, by tying together clumps of plants, cutting them at thigh-height and then dripping the herbicide into their stems.

The federal Environmental Protection Agency rates glyphosate a three on a toxicity scale of one to four — four is the safest. Numerous other “over-the-counter” herbicides and pesticides are considered safe for use by the EPA.

But a growing body of research is drawing links between exposure to lawn-care products and diseases, from Parkinson’s to Attention Deficit Hyperactivity Disorder. A study published last summer in the journal Pediatrics found a strong correlation between children’s exposure to pesticides and the occurrence of ADHD.

New North End resident Jean Markey-Duncan has been a vocal proponent of strengthening the city’s pesticide regulations. She has twice reported neighbors to the city for leaving out information on the signs they’re supposed to post on their lawns — with no response that could be described as “enforcement.”

Markey-Duncan also spoke up four years ago when she heard the Board of Health had granted TruGreen ChemLawn a waiver to spray within the buffer zone. She leafleted her neighborhood with a flyer listing 10 reasons people shouldn’t use pesticides.

“We don’t need lawn-care chemicals,” she says. “It’s all for aesthetics — that someone’s lawn needs to look like a green carpet.”

For Markey-Duncan, the issue is personal, too. Her sister died suddenly at the age of 43, six months after giving birth to her third child, and doctors suggested environmental toxins as a possible cause. Markey-Duncan has since read volumes on chemical toxins and zeroed in on chemical pesticides and herbicides, which she calls “totally unnecessary.”

Bergman and others say that education is an important complement to enforcement. Each year, the city publishes buffer-zone maps in community newspapers. This year, Burlington partnered with the University of Vermont to create the Healthy Lawn Lab project, an experiment that invites two city residents to spend a year cultivating and blogging about caring for their Roundup-free lawns.

“You can’t have a cop on every street,” Bergman says. “You can’t have a code office that’s going to stop everything, so we need people to do the right thing.”

Changing state law to boost Burlington’s pesticide powers could prove difficult. In 2007, state lawmakers attempted — and failed — to give cities and towns the power to regulate pesticides and herbicides.

The Senate Agriculture Committee attempted to strip municipal authority from the bill and instead require the Agency of Agriculture to adopt rules governing where pesticides could be sprayed and how notice was posted. The Senate Committee on Government Operations restored municipal authority but wrote in exemptions for railroads and utilities.

By the time the bill, sponsored by then-Sen. Jim Condos, reached the Senate Energy and Natural Resources Committee, O’Grady writes, “every person or organization with an interest had weighed in or received an exemption so that the only authority a municipality had was over pesticide application to residential homes and schools.” The bill ultimately died in committee.

Bergman says the city of Burlington could live with a law that exempted railroads, utilities, golf courses and bird-control activities from regulation, as the failed Senate bill did, because it would explicitly empower Vermont towns to curtail home-pesticide use.