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November 4, 2013 Mr. Michael McClean Director of Rights-of-Way Programs Massachusetts State Pesticide Bureau 251 Causeway Street, Suite 500 Boston, MA 02114-2151 RE:

NSTAR’s Proposed 2013 Yearly Operational Plan For Cape Cod

Dear Mr. McClean: I’m writing as a private citizen living in East Orleans, commenting on NSTAR’s proposal to use herbicides to control vegetation on its rights of way throughout Cape Cod. I encourage the Massachusetts Department of Agricultural Resources to deny NSTAR’s request to use these herbicides for several reasons.

Herbicides as Emerging Contaminants Along with pharmaceuticals, herbicides are now widely recognized as “contaminants of emerging concern.” While NSTAR stresses that they are relying heavily upon the EPA’s registration of these herbicides, they don’t in any way address the issue of herbicides as potential emerging contaminants. This is important because it may take years for our regulations to catch up with our science and best management practices. For example, with pharmaceuticals, I helped launch PharmEcology in 2000 and, at that time, we advised hospitals to end their practice of disposing of unused drugs down the drain. The EPA and the American Hospital Association recognized us as a “Champion of Change” in 2004 and we received several patents reflecting our leadership in this field. Several years ago, the EPA endorsed our recommended “best practice” and how cautions against drain disposal for unused drugs. Despite this policy, we still don’t expect the EPA to incorporate it into their regulations any time in the near future. The EPA has launched an effort to review all herbicides as potential endocrine disruptors and has included glyphosate in their initial list. There are countless scientific studies warning us about the potential danger of glyphosate as an endocrine disruptor. In my opinion, NSTAR’s proposed YOP should have addressed this issue. The concerns here are widespread and serious enough to justify prohibiting NSTAR from spraying these herbicides. NSTAR’s own Pesticide Quality Management Plan indicates that NSTAR’s “decisions must be legally and scientifically defensible.” NSTAR’s decision to use glyphosate doesn’t appear to meet this criteria.

Cape Cod as a Sole Source Aquifer NSTAR’s planned spraying on Cape Cod is based on their 5 year Vegetation Management Plan which covers many the towns across the State. Cape Cod has been identified by the EPA as a sole source aquifer and NSTAR’s plans should address the unique requirements of Cape Cod’s fragile environment. In particular, given that the plans call for NSTAR to avoid spraying near public or private water supplies or near open waterways, NSTAR recognizes the obvious concern of the potential for these chemicals to Jim McCauley

19 Colony Drive

Orleans, Massachusetts 02653

(617) 848-8943

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affect our water supplies. This is particularly critical because scientists have shown that chemicals such as glyphosate have caused problems with very low concentrations in the part-per-billion and even part-pertrillion range.

Is Cape Cod Special? In speaking with NSTAR representatives, they indicate no other area in Massachusetts has objected to herbicides and they go on to ask: Is Cape Cod special? We’re not familiar with how other towns have dealt with this issue, although we do know objections have come up in Duxbury. Whatever has happened in the past, we’d be surprised if today an informed community doesn’t object to these herbicides, particularly glyphosate. Is Cape Cod special? Without apology, our answer is a resounding yes.

The Precautionary Principle In speaking with NSTAR and others on this issue, the presumption appears to be that NSTAR has the right to use these herbicides unless we can prove they are harmful. While we believe there is more than adequate scientific evidence to that effect, we recommend that both NSTAR and the MDAR endorse the Precautionary Principle with respect to herbicide spraying. The Precautionary Principle states: “if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on those taking an action.” In taking on the challenges with pharmaceutical waste, we relied upon this principle extensively. While we couldn’t justify our recommendations on legal grounds, many large organizations endorsed this policy to reflect their commitment to the health and safety of the communities they serve.

NSTAR Spraying Will Represent 1% of Herbicide Spraying Throughout the Cape While NSTAR frequently quotes this statement and attributes it to the Cape Cod Commission, we don’t understand how anyone could possibly substantiate this fact, particularly because NSTAR has not projected the amount they will spray. During the recent meeting of the Falmouth Board of Selectmen, the NSTAR representative was asked about this figure and was unable to respond to the obvious question: If NSTAR has had a moratorium on spraying, how does their spraying even make it to the 1% threshold? We ask the MDAR to encourage NSTAR to be more precise with statements such as this. Obviously, if this statement is true, we have considerable work to do on the Cape to educate our folks about alternatives to such widespread use of herbicides. The last thing we want to do is have the MDAR encourage additional herbicide spraying by endorsing NSTAR’s proposed plan.

EPA’s Pesticide Registration The EPA has been widely criticized for weaknesses in its pesticide registration program and is responding to those criticisms. In addition to the efforts underway to review glyphosate as a potential endocrine Jim McCauley

19 Colony Drive

Orleans, Massachusetts 02653

(617) 848-8943

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disruptor, EPA has a policy to review pesticides every 15 years to make sure the registrations reflect the latest research and science. We understand glyphosate, fosamine, and metsulfuron are all in the middle of this re-review process. The EPA has also been strongly criticized for overusing its ability to conditionally register pesticides and for not keeping track of which pesticides have been conditionally registered. The conditional registration process was intended to expedite emergency registrations, but the EPA has been using it much more extensively. Typically, a pesticide receives a conditional registration when the applicant has not provided sufficient test results during their initial application. In March of this year, the National Resource Defense Council highlighted this problem (Superficial Safeguards: Most Pesticides Are Approved By Flawed EPA Process). In August, the General Accounting Office echoed their criticism. (PESTICIDES: EPA Should Take Steps To Improve Its Oversight of Conditional Registrations). I met with Mae Wu, the NRDC attorney who wrote the above article, and she indicated imazapyr is conditionally registered. I tried to verify the registration for the other pesticides, but was unable to track these down. As part of the registration process, we encourage NSTAR to work with the herbicide manufacturers to include tests for possible interactions between these five herbicides being used in combination with each other. While scientists caution us about these unanticipated side effects, there is little testing done for this because of the large number of possible combinations. However, in this case we know the proposed combination and it would be reasonable for us to test for it. Please note that I do not believe NSTAR should conduct these tests themselves. NSTAR lacks the expertise to conduct these tests and it would be difficult to convince the public at large that NSTAR was impartial in its testing.

NSTAR’s Proposed Schedule MDAR should verify that NSTAR has met the filing deadlines and reject NSTAR’s request if they have not. A quick reading of 333 CMR 11.00 and NSTAR’s associated documents raises some potential problems: !

NSTAR’s 2013-2017 Vegetation Management Plan for 2013-2017 should have been submitted by September 1, 2013 and appears to have been submitted on February 26, 2013.

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NSTAR submitted their 2013 Yearly Operational Plan on August 5th, 2013 and should have allowed 90 days before they proposed spraying. However, their 21 day letter, which they submitted concurrently with the YOP, called for them to begin spraying on October 14th, 2013, almost a month earlier than allowed.

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At this point, NSTAR will be unable to complete foliage treatments this year and will have limited time to complete any sprayings, given the time required for MDAR to review any comments and allow for a 21 day appeal period. While this YOP would allow NSTAR to spray up through January 10, 2014, it doesn’t appear to allow any spraying past that point.

Jim McCauley

19 Colony Drive

Orleans, Massachusetts 02653

(617) 848-8943

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Overall this process seems very rushed. MDAR may want to ask NSTAR to withdraw these request and submit a Vegetation Management Plan for 2015-2019 and a subsequent Yearly Operational Plan for 2015.

NSTAR’s Proposed Spraying Amounts NSTAR provides very little information about the volume of chemicals they will spray throughout the rights of way. Their Yearly Operational Plan indicates “the average per acre rate of herbicide mix for NSTAR’s foliage program is under 5 gallons per acre.” Presumably, the cut surface treatments will add to this figure, although it’s not clear by how much. I don’t believe MDAR has enough information about the volume of chemicals NSTAR plans to spray to approve the proposed YOP. I believe NSTAR needs to provide estimated volumes for each chemical and they must also demonstrate they will remain under the recommended minimums. In NSTAR’s presentation, they stress they will use backpack sprayers and use a minimum amount of material. The concern most of us have on the Cape is this will still add up to significant numbers in total. While MDAR should ask NSTAR to provide its own estimates, I attempted to prepare a rough estimate based on: !

NSTAR’s stated average coverage up to 5 gallons per acre

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100 foot rights of way

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Rough estimates of the lengths of the rights of way in the maps provided by NSTAR.

This rough calculation provides the following estimate:

Jim McCauley

19 Colony Drive

Orleans, Massachusetts 02653

(617) 848-8943

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If you like, I can provide MDAR with the supporting detail for each right of way within each town. Please note that NSTAR’s projected average of 5 gallons per acre may not make sense. That would appear to be higher than widespread spraying and might exceed the label limits. If this figure is incorrect, I’m not sure if that’s good news or bad news for NSTAR. Obviously, it would be a concern if NSTAR has little sense of how much herbicides they will actually spray. In any event, NSTAR should express their amounts more clearly and in more detail.

Invasive Plants NSTAR indicates they’ll help control a long list of “invasive, noxious, and poisonous plant species” at their facilities. The list includes the ever-present poison ivy, honeysuckle, and many other familiar plants. From reading the YOP, it almost sounds like NSTAR’s objective has grown from protecting power lines from tall trees to trying to eradicate these plants from their rights of way. Unless this is specifically required of NSTAR by the federal government, it seems NSTAR should reduce the extent to which they focus on the non-tree species. The Cape without poison ivy would not be the Cape.

Private Wells In reviewing NSTAR’s plan and the maps they distributed, it appears some of the rights of way are adjacent to some neighborhoods served primarily by private wells. It also appears the towns vary considerably in the extent to which they’ve recorded the location of each private well. NSTAR’s intent was to avoid spraying near private wells, but the YOP didn’t appear to have a practical way to make that happen. If MDAR does allow NSTAR to move forward, MDAR should reject NSTAR’s request to spray on rights of way adjacent to neighborhoods which rely on private wells.

NSTAR’s Public Communications NSTAR has spent quite a bit of time responding to individual comments and in public forums, such as the recent meeting with the Falmouth Board of Selectmen. I appreciate NSTAR’s effort here and, generally, their staff does an excellent job. However, at times, NSTAR’s representatives have gotten overly effusive about these herbicides. MDAR should admonish NSTAR to be more careful with their comments and also verify that NSTAR’s staff are properly trained in handling these chemicals and in communicating the potential dangers of these chemicals to the public. Specifically: !

At the recent meeting in Falmouth, NSTAR’s representative referred to the herbicides as safe and stressed that, based upon the lethal dose (LD50), glyphosate was far safer than sugar or aspirin. I assume NSTAR’s facts are accurate and I’ll let someone else figure out the anomaly with the LD50 numbers. However, I’m sure NSTAR agrees we should never refer to these chemicals as “safe” and I’m certain we should not compare them to sugar or aspirin. One of the Falmouth selectmen indicated he had “great faith” in the NSTAR representative. NSTAR jeopardizes that faith with statements such as this.

Jim McCauley

19 Colony Drive

Orleans, Massachusetts 02653

(617) 848-8943

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At various times, NSTAR indicates they spray minimal amounts of herbicides and at other times they say they’ll spray a few pints per acre. In some instances, it appears they’re referring to active ingredients and in other cases the diluted spray. The net result is NSTAR either doesn’t know how much they plan to spray or is being evasive in how they communicate it.

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At times, NSTAR has indicated foliage spray will only be on the leaves and the spray will not reach the ground. They’ve also indicated the chemical will not get into the soil. While these statements may be generally correct, some spray will always get on the ground and the chemicals are pulled into the soil via the plant roots.

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NSTAR’s schedule is very confusing, particularly with regard to notifying individual abutters. I agree that NSTAR should notify abutters and NSTAR should work with MDAR to notify them at the appropriate time.

Citizens on the Cape are passionate about this issue and the MDAR should encourage NSTAR to communicate with us openly and honestly. In my opinion, NSTAR does itself a disservice with misleading statements such as these.

In terms of additional background, I am a member of the Cape Cod Commission’s Pleasant Bay working group for their current 208 effort. I’ve also just joined the board of the Orleans Pond Coalition and am an advisory to POCCA Cape Cod. I should stress that these comments reflect my own personal views. I have no basis to speak on behalf of any of these organizations, for PharmEcology, or for Waste Management, who acquired PharmEcology several years ago. Thank you for your considering these comments and for helping us take care of the Cape

Sincerely,

Jim McCauley cc.

Laura Kelley, POCCA Cape Cod Senator Dan Wolf

Jim McCauley

19 Colony Drive

Orleans, Massachusetts 02653

(617) 848-8943

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McCauley Comments on NSTAR's 2013 YOP