Inside Indiana’s pesticide enforcement division, confusion reigns following new legislation

Carson Gerber, CNHI News Indiana State Reporter, Herald Bulletin

Aug 23, 2023

When a business owner recently asked Dave Scott about regulations to build a new agricultural storage facility, the Indiana pesticide program administrator gave an answer he’s not used to giving.

“I can tell you what they were a couple of months ago,” Scott said. “But I can’t tell you for sure what they are going to be next week.”

That’s because a last-minute amendment added by Republican lawmakers this year to a sprawling 90-page administrative rulemaking bill has led to huge amounts of confusion surrounding the state’s pesticide regulations.

House Enrolled Act 1623 required in part that any pesticide regulation more stringent than federal rules be voided from Indiana code by July 1.

But guidelines on what that specifically means or how to do it aren’t laid out in the bill, leading to conjecture and speculation on what should be removed from the code, explained administrative director Scott.

An analysis of the bill made by the Indiana Attorney General’s Office at the request of the pesticide division also found muddled language and near contradictions in the law. State lawyers writing the opinion frequently indicated their best guess on how to interpret the rules and policies.

“The bottom line is, even for trained legal folks, there’s a whole bunch of ambiguity and lack of specificity in those amendments,” Scott said.

Now, four months later, pesticide enforcement and compliance workers are still in limbo about which rules apply and which don’t, leading to head scratching across the industries that use the chemicals.

That includes regulations surrounding pesticide storage and containment, record keeping and enforcement of licensing requirements for commercial pesticide applicators.

“We have clients call us all the time to say, ‘Am I still required to do this?’” Scott said. “Sometimes we have an answer, and sometimes we’re not sure. Nobody wants to be in that situation. They don’t like not knowing where they stand or what’s required of them.”

‘JUST OUTRAGEOUS’

It’s clear some state pesticide regulations are more stringent than federal rules. That includes a former requirement that commercial lawn applicators post flags notifying the homeowner and neighbors that pesticides have been sprayed.

Removing those kinds of rules from the books is also a major concern, Scott argued. Simple requirements like placing flags in a recently treated lawn protects Hoosiers’ health by letting people know to keep themselves and their pets off the grass.

“Almost every single one of our rules has an element of public safety associated with it,” he said. “Some regulatory requirements have been in place for 30 or 40 years, and to change them or disrupt the process now is going to turn everything on its head.”

Indiana Sen. Shelli Yoder, D-Bloomington, said she often hears concerns from her constituents about the health impact of pesticides and chemicals. What she doesn’t hear is residents asking for less oversite from the agencies regulating them.

“It is very concerning, considering in the state of Indiana we fall at the bottom on most environmental outcomes,” she said. “Creating confusion and removing oversight on pesticide use is just outrageous and very dangerous for Hoosiers.”

A 2020 report estimates that about 385 million cases of unintentional, acute pesticide poisoning occur annually world-wide, including around 11,000 fatalities.

In Indiana, over 1,800 reports of pesticides adversely impacting people, pets and plants have been made over the last decade to the Environmental Protection Agency, according to recently released data from the agency.

That, combined with the deregulations required by the new bill, points to serious concerns about public health in Indiana, argued Sam Carpenter, executive director of the Hoosier Environmental Council.

“These are dangerous chemicals that people are working with,” he said. “If they’re not applied properly or protections aren’t in place, then you’ve got a real risk of people getting harmed.”

PICKING UP THE PIECES

The unintended consequences of the legislation are something Sen. Sue Glick, R-LaGrange, cautioned against during a senate committee hearing.

Lawmakers had just hours to review the 54-page amendment, giving little time for analysis or public input. The legislation also takes authority away from the pesticide division and hands the final say on new pesticide regulations to lawmakers.

Glick bucked her party and joined Democrats in voting against the amendment.

“I would like to see this bill held to clarify many of the issues that have been brought forward today,” she said during the hearing. “It is far reaching, and it will affect many areas that weren’t even discussed today.”

Rep. Steve Bartels, R-Eckerty, who authored the legislation, did not respond to requests for an interview.

But groups representing the state’s farmers say they’re confident the ambiguities and question marks will eventually get ironed out.

Jeff Cummins, state government relations director for Indiana Farm Bureau, said his organization, along with representatives from the Indiana corn and soybean agribusiness council, are meeting with the state pesticide office this month to discuss the legislation.

Pesticides used by farmers have restricted uses and are almost entirely regulated by the EPA, Cummins explained, so the new provisions won’t impact growers much. Still, clarification is needed on some rules that could affect the industry.

“With any bill, I think you’ll have issues that you find after the fact that can be ambiguous,” he said. “Even the most well-thought-out bill can have components or pieces that could be clearer or more well defined.”

Pesticide administrator Scott said it’s unsurprising that a rushed amendment approved with little consideration has led to confusion and uncertainty. Now, his office is left picking up the pieces with no guidance on how to put them back together.

One example: the law requires the pesticide division to void more stringent rules from the code. With no direction in the bill or from legislators on how to do this, Scott explained, his office can’t even fulfill a basic requirement of the law.

“It’s left us guessing a little bit,” he said. “Actually, not a little bit. A lot.”

EXCEPTIONS TO THE RULES

Although HEA 1623 requires that any state pesticide regulation more stringent than federal rules be voided, the law provides 10 narrow exceptions.

Here's a breakdown of what lawmakers have explicitly approved to be more strict than federal regulations:

1. Commercial termite control applicators must complete a practical hands-on training program to become certified.

2. Commercial applicators must have access to the pesticide label when applying pesticides.

3. Commercial for-hire, general-use pesticide application businesses are required to show proof of having minimum liability insurance coverage.

4. Commercial for-hire, general-use pesticide applicators must disclose to customers any omissions from label required termite control applications.

5. Commercial applicators and school employees applying general use pesticides at schools may not apply when students are present; must notify students, parents and staff of planned and conducted applications; must store pesticides safely; must keep students and staff out of treated areas until spray has dried; and may only apply rodenticide baits in areas inaccessible to students.

6. Commercial and private applicators must store and contain general use pesticide portable refillable containers safely to prevent releases to the environment.

7. Commercial and private applicators may not store, mix or load general use pesticides within two hundred (200) feet of a community public drinking water well.

8. Commercial and private applicators must store general use pesticide containers on impervious surfaces within a wellhead protection area zone.

9. Commercial and private applicators must cleanup general use pesticide spills within a wellhead protection area immediately upon discovery.

10. Commercial and private applicators may not open burn general use pesticide containers.

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