P A N U P S
Pesticide Action Network Updates Service
City Bans Pesticides & Faces Wrath of Industry & State
The San Francisco Chronicle
OCTOBER 5, 2001

Fairfax defies state with pesticide law

By: Jim Doyle

It has all the elements of a classic showdown: a powerful Sacramento
regulatory agency threatened first to crack the whip on the funky Marin town
of Fairfax, then offered a tasty carrot.

The pesticide industry also fired a warning shot at the Fairfax Town
Council, but its steely politicians have not backed down. They insist on
telling the town's 7,200 residents how and when to spray their weeds and
aphids.

Using products like Roundup or Weed-B-Gone to clean up the garden or lawn
may seem innocuous, but a new Fairfax law forbids property owners from
spraying herbicides and pesticides unless they first notify their neighbors.
The Fairfax law, approved unanimously by its town council, is part of a
grassroots movement to raise public awareness of the potential hazards of
pesticides. Supporters of the ordinance, the first of its kind in
California, say it will help protect residents from being harmed by chemical
sprays that can drift downwind, linger in the soil and migrate via
surface-water runoff.

But the law, which also forbids the use of pesticides in Fairfax parks, has
rankled state officials who say it is an attempt to usurp their authority to
regulate pesticides. And they contend that it impinges on the rights of
pesticide operators and landowners.

"The state has a tiger by its tail with Fairfax," said Frank Egger, a
Fairfax council member who wrote the ordinance. "They thought we were going
to roll over, but we're dead serious about this. We're calling our ordinance
a public right-to-know law. We want people to be able to leave the house for
a day or two and know what's coming."

Egger says the ordinance will enable residents to take steps to protect
themselves, their families and pets from the hazards of chemical sprays.
State officials say these worries are unfounded.
"If you have a basement full of rats, you're not going to appreciate being
told that you can't use a pesticide," said Glenn Brank, a spokesman for the
state Department of Pesticide Regulation. "Because of their nature, there is
no question that pesticides have toxic properties. But the products that are
the subject of this ordinance have been approved by the federal and state
government."

The Fairfax law requires property owners planning to apply pesticides to
notify neighbors within a 150-foot radius at least 48 hours ahead of time -
by posting signs indicating that chemical spraying will occur.
It applies to landscaping chemicals and pesticides including fungicides,
herbicides, insecticides, defoliants and rodenticides - except small
quantities of sprays used against "stinging and biting insects, including
venomous spiders, bees, wasps and hornets." It also doesn't govern the use
of insect or rodent bait, boric acid, horticultural soap and oils, granular
pesticide or the direct injection of pesticides into a plant.
Under the law, repeat violators may be cited for a misdemeanor offense. No
citations have been issued, but two pesticide operators have received verbal
warnings from Fairfax police officers.

Egger, a former California coastal commissioner, modeled the ordinance after
legislation signed into law last year in New York state.
The Fairfax law went into effect in early April.
Paul Helliker, director of the state Department of Pesticide Regulation,
complained in an April 17 letter to the Fairfax Town Council that under its
new law, "the private property owner/occupant could no longer decide to
spontaneously apply a pesticide at his or her convenience."
He warned that, unless Fairfax rescinded its ordinance within 60 days, the
state attorney general would be instructed to prepare a lawsuit against the
town.

Two weeks later, Helliker wrote again to the Fairfax Town Council. But this
time he offered to have Marin County's agricultural commissioner work
closely with Fairfax officials through a statewide grant program designed to
encourage the use of nontoxic alternatives to pesticides.
The Integrated Pest Management Program, which doles out $1.4 million a year,
has advised numerous communities including San Francisco and Santa Monica.
The June 17 deadline came and went. Fairfax didn't budge.
"We're not talking about guys with billy clubs and hobnail boots. We're not
those guys," the state agency's Brank said. "The director has gone the extra
mile to work with these folks.

"Our interest is in a good, progressive test management strategy that
protects people and the environment. Other communities are very proactively
reducing their pesticide use, and we think that is absolutely great," Brank
said. "People should know: Don't use pesticides unless you need them. Try to
look for positive, nature-friendly alternatives."
But state officials have also challenged Fairfax's authority to prohibit the
use of pesticides on the town's public parks and rights of way. They argue
that the town can only deter the spraying in public places through a general
policy declaration, not by ordinance.

The Fairfax law contains "sort of an implication that people who are using
pesticides in the home environment are putting their neighbors at risk. And
I think that's a leap," Brank said. "When we do see instances of illness or
injury, usually the person who's most at risk from a pesticide misuse is the
one using it."

Pesticide operators have advised Fairfax that portions of its ordinance are
preempted by a 1984 state law governing pesticide use and licensing
requirements.

"Our concern with the ordinance is that it's a deviation from the state
statutory scheme," said Dale Stern, a Sacramento lawyer for Pest Control
Operators of California Inc., a trade association. "If you have cities or
counties passing regulations, there's the potential of having to deal with
hundreds of ordinances if you try to conduct business in California.
"Consistency is what we're looking for. Every chemical used in the country
complies with a federal EPA labeling requirement. It's a very heavily
regulated industry already."
--- --- ---
Backers of the Fairfax ordinance say that it reflects a growing movement by
local communities to educate the public about the hazards of pesticides and
to limit spraying on public property and schoolyards.
"It's grown out of frustration with the powers that be. We're tired of
getting poisoned," said Ginger Souders-Mason of the Marin Beyond Pesticides
Coalition, which comprises 44 nonprofit organizations.
Environmentalists worry about the effect of pesticides on local waterways.
Studies have found pesticide residues in Marin creeks that flow into San
Francisco Bay.

The Healthy Schools Act of 2000 requires parents to be notified each year of
intended pesticide use in California schools. It also gives parents the
opportunity to receive 24-hour notice before pesticides are sprayed.
Earlier this year, health advocates persuaded the town of Belvedere to
refrain from spraying pesticides in its public park.

Also this year, the Reed Union School District - which serves children from
Belvedere, Tiburon and the unincorporated Strawberry neighborhood - ordered
the local Little League, which uses schools' playing fields, not to spray
chemicals on school district property without prior approval.
The nonprofit Pesticide Education Group successfully lobbied school district
officials in Kentfield and Larkspur to ban the spraying of pesticides that
federal and state regulators have classified as the most hazardous.
Health activists say that the Fairfax ordinance will help protect people,
especially children and adults with chemical sensitivities, from toxic
pesticides.

"We think this ordinance is necessary. Pesticides don't know boundaries,"
said Souders-Mason. "If people understood the dangers that these things
pose, they would probably reach for the baby powder, which takes care of
ants just as well as Raid does."

Dr. William Rothman of Belvedere, a retired physician, has voiced concerns
about the effects on children of popular herbicides such as Roundup, the
world's most popular weed-killer.

"Children crawl on the ground and put things in their mouth. They're exposed
to more pesticides than adults," Rothman said. "They have fewer cells in
their body, so if they're exposed to a toxic chemical, they have a greater
concentration of it in their bodies. Their cells are growing, so their cells
tend to divide more. The cells that multiply more quickly in the body are
more susceptible to toxins."
--- --- ---
Sebastopol is considering the passage of an ordinance similar to the Fairfax
law. State regulators have warned Sebastopol officials not to go forward.
"A number of my constituents called to say that they had had physical
reactions to overspray from their neighbors' yards, and asked what they
could do about this?" said Mayor Larry Robinson, who formed a citizen's
panel to study the issue.
"Many people will buy something off the shelf at Home Base or Safeway and
figure that, because it's being sold, it must be safe. Most homeowners don't
even follow directions," Robinson said. "People have a right to know about
the circumstances or conditions that are going to be hazardous to them,
their homes, their pets and gardens."
--- --- ---
Fairfax officials have asked the state Department of Pesticide Regulation to
modify its regulations to allow local authorities to pass neighborhood
notice laws. The agency has refused.
So the wily politicians of Fairfax continue to talk tough.
"We're saying to the state, 'Hey, you wanna take us on, c'mon take us on.
We're ready,' " said Egger.E-mail Jim Doyle at jdoyle@sfchronicle.com.