BOARD OF COMMISSIONERS'
July 16, 2003
Commissioners’ Conference Room
Commissioner Peter Sorenson presided with Commissioners Bill Dwyer, Bobby Green, Sr., Tom Lininger and Anna Morrison present. County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
15. PUBLIC HEARINGS
a. FIRST READING AND PUBLIC HEARING AND SETTING SECOND READING AND DELIBERATION/Ordinance No. 8-03/In the Matter of Amending Lane Code Chapter 15 to Establish a Last Resort Policy for Right-of-Way Herbicide Application (PW/IVM version). (Second Reading & Deliberation: July 30, 2003)
b. FIRST READING AND PUBLIC HEARING AND SETTING SECOND READING AND DELIBERATION/Ordinance No. 9-03/In the Matter of Amending Lane Code Chapter 15 to Establish a Last Resort Policy for Right-of-Way Herbicide Application (HHS/Public Health version). (Second Reading & Deliberation: July 30, 2003)
c. FIRST READING AND PUBLIC HEARING AND SETTING SECOND READING AND DELIBERATION/Ordinance No. 10-03/In the Matter of Amending Lane Code Chapter 15 to Establish a Last Resort Policy for Right-of-Way Herbicide Application (Dwyer version). (Second Reading & Deliberation: July 30, 2003)
d. FIRST READING AND PUBLIC HEARING AND SETTING SECOND READING AND DELIBERATION/Ordinance No. 11-03/In the Matter of Amending Lane Code Chapter 15 to Establish a Last Resort Policy for Right-of-Way Herbicide Application (Kardell version). (Second Reading & Deliberation: July 30, 2003)
e. FIRST READING AND PUBLIC HEARING AND SETTING SECOND READING AND DELIBERATION/Ordinance No. 12-03/Amending Lane Code Chapter 15 to Establish a Last Resort Policy for Right-of-Way Herbicide Application
Dwyer explained that Public Health asked that their ordinance (15. c.) be withdrawn in favor of Dwyer’s second option, 12-03.
Sorenson thought the focus should be on 15. a. 15. d. and 15 e.
Assistant County Counsel Marc Kardell explained that Ordinance No. 9-03 was withdrawn. He noted this was the Health and Human Services version. He added this version was based on the Bainbridge model that the Board was given a copy of last month. He said it dealt with pesticides and insecticides so there is language that is awkward for the version Lane County is planning He said it had a definition for a high hazard herbicide. He said the main premise of this ordinance is that prevention is the primary method that the County should use. He explained that prevention means planting, blading, and putting down ground coverage to prevent new and invasive species from arising. He thought that might be difficult given Lane County’s road system. He indicated that the Board of Health, looking at a least toxic products list, was certain that herbicides could be used with criteria. He noted most of the versions they have put criteria in don’t apply to the roads unless there are emergency situations or a special procedure. He noted a difference in this version is it has mobility in the soil and half life as being deal killers.
With regard to Ordinance 10-03 the Dwyer version, modified, Kardell noted the primary method was non-herbicidal control methods as a way of prevention. He noted it allowed mowing to be the primary method used in Lane County instead of replanting on the right-of way. He added it also provided a permitted use of herbicides to be used, approved by the Board of Health. He noted it differed from the Public Health version. He explained all of the Bainbridge versions including Dwyer 1, 2 and the Public Health versions have annual reporting to the Board of Health, discussing what can be used and what is ruled out for the next year based on experience.
Kardell explained the change between Dwyer 1 and Dwyer 2 is that Dwyer 2 has the highlights and strikeouts to show where the changes were made. He added the changes in Dwyer 2 were primarily in the public notification and record keeping portions of the statute. He indicated it required publication in area newspapers as well as other appropriate electronic and published forums for notice to the public. He noted in the earlier Dwyer version they had notice going to hospitals about the herbicides. He noted the record keeping required some things being kept, including quantity and concentration of the herbicide product applied.
Kardell noted the Kardell version is short, with a two paragraph policy that states herbicides may be utilized for vegetation control only after the other methods referred to above as the non-herbicidal label in the Dwyer versions. He said those things are tried first and the herbicides would be applied last, only after the other methods had been considered and rejected by the Board of Health and they are the least toxic available to accomplish the task.
Sonny Chickering, Public Health, stated they are willing, able and ready to implement whatever form of ordinance the Board elects to adopt. He guaranteed they will do their utmost to implement whichever the Board selects, to the best of their ability, and they will comply as closely as they can with every detail. He said their version is referred to as the Public Works/IVM draft, Ordinance 8-03. He stated they provided this version as an alternative and they believe it provides a platform for the Board to declare its desire for a last resort policy and an acknowledgement of the existing Roadside Vegetation Management Plan and an endorsement of the plan as the appropriate vehicle for ongoing evaluation and implementation of the entire roadside vegetation management program. He noted that their version also acknowledges that the Roadside Vegetation Management Plan shall address requirements for no spray areas, employee training and education, public notification and record keeping. He noted theirs contains a statement that herbicides may be utilized for vegetation control only after methods have been considered and rejected and that only the least toxic herbicide available may be used to accomplish the desired level of control. He said it includes an annual report to the Board of Health on herbicides and alternate control methods used or considered for use during the coming year and provides an opportunity for the Vegetation Management Advisory Committee and the Public Health Advisory Committee to comment on the annual report. He indicated they did not include a subsection in their ordinance devoted to herbicide selection criteria, which the others did have. He thought that portions of the other ordinances would be better suited to inclusion in the Vegetation Management Plan instead of an ordinance. He stated that was their recommendation, but if the Board thought it was important that it be added to their ordinance, they would accept the change. He suggested a control option matrix as an alternate to the list of selection criteria. He said they would be willing to accept some type of prevention component. But they were concerned about plowing and replanting miles of roadside.
Chickering supplied a packet of supplemental materials. He said at the June meeting of the Vegetation Management Advisory Committee, there was a request made for samples of current record keeping. He added this material was presented to VMAC at their July 9 meeting. He noted Morrison attended and the VMAC directed staff to provide the material to the Board for review and to consider it during deliberations
Rob Rockstroh, Health and Human Services, reported the Health Advisory Committee was withdrawing their ordinance. He stated they wanted the Dwyer version because there was more notification. He added the record keeping is more detailed. He explained this was around health issues related to pesticides. He recommended not a "no" spray but a reduction in spraying.
Commissioner Sorenson opened the Public Hearing.
Duane Zetner, 4055 Kildare St., Eugene, supported the Public Works IVM version of the ordinance. He thought that version allowed for the most flexibility for the use of herbicides. He noted that herbicides were the most cost effective vegetation management tool. He said they shouldn’t experiment with Lane County’s money by not having herbicide uses. He wanted to see County personnel use all tools available to them. He recommended Ordinance 8-03.
Jason Blazar, 848 W. 10th, Eugene, stated he works with Buford Park and Mt. Pisgah. He said they protect and enhance the native eco-systems in the Mt. Pisgah area. He said they do that in partnership with Lane County Parks. He was in favor of the ordinance to sustain the use of herbicides as a tool in the toolbox. He commented that herbicides should not be the first option when considered for vegetation management but should be maintained.
Ray Wolfe, 2473 Luella St., Eugene, stated he had a background in comparative biochemistry. He supported the last resort use of herbicides and hoped they would arrange to eliminate them and use other biological ways of controlling weeds. He noted that some substances are very toxic. He suggested the Board keep an open mind on this matter.
Jim Baker, 51013 McKenzie Highway, Finn Rock, supported the establishment of a last resort policy for right of way herbicide application. He urged the Board to approve Ordinance 12-03.
Karen Bodner, read her letter into the record. (Copy in file). She was concerned about all of the ordinances except for Public Works because VMAC is excluded from the annual reporting process. She thought Public Works was using herbicides safely and responsibly. She thought the public was the problem with their chemical abuses.
Mona Lindstromberg, 87140 Territorial Highway, 87140 Territorial Highway, commented she was happy to see that Lane County was discussing a last resort herbicide policy. She encouraged the Board to support the Dwyer ordinance with the Health Advisory Committee changes included.
Lawrence Birch, P. O. Box 50132, Eugene, stated his definition of a weed is a useful plant. He wanted a zero tolerance for any spraying.
Aimee Code, 1275 Jackson, Eugene read her letter into the record. She supported the Dwyer 2 ordinance. She said it made sense to use herbicides as a last result She said it makes sense not to use herbicides that they know are a risk and that is what Dwyer’s ordinance does. She urged the Board to make sure they are consistent with state record keeping laws.
Jan Wroncy, P. O. Box 11001, Eugene, stated she had been on VMAC for eight years during the 90’s. She wanted the Board to drop the use of herbicides entirely because they are harmful to people and to the environment. She said the policy proposal as written by Dwyer would go a long way to protect the people of Lane County and the environment. She stated under public notification, she thought it should be posted at least 14 days before as seven days is not enough. She thought the posted signs should state the start and finish time of the application. She thought the proposed policy would be a welcome change to the roadside vegetation management.
Tom Locascio, 34909 Frank Parish Road, stated he is the caretaker for the Mt. Pisgah Arboretum. He said they have a last resort spraying policy for Mt. Pisgah that had been in place for about 10 years. He said they had to face new organisms into the system that are system effective. He supports the last resort policy. He said it needs to address certain species with a fast response. He was concerned if they put this into an ordinance it would be hard for it to evolve.
Kathy Ging, P. O. Box 11245, was concerned about the negative effect of the spray program. She supported Dwyer’s version She stated in 1997 she was accidentally sprayed by a truck. She thought Lane County should work with local nurseries to rehabilitate the vegetation and have people do their own roadside management and work with ODOT to curtail spraying in Lane County.
Rob Handy, 455 ½ River Road, Eugene, stated he liked the Dwyer version with the emphasis on protecting children’s health around different areas. He said it is a good provision for spray trucks to consider the wind and rain conditions in applying herbicides. He thought they could model appropriate behavior. He said it is a concern about the public’s use of herbicides and dealing with it. He wanted the Board to err on the side of caution and not have employees handle products that might affect them.
Bev Hollendar, 27850 Lady Slipper Loop, Eugene, stated she represented the Health Advisory Committee. She said their group supports the 12-03 policy. She reported there are already no spray policies available for counties all over the country who are willing to share their successes and failures. She said this offers a more considered awareness of the environment. She commented that there were too many unknowns about chemicals. She thought this was a step in the right direction.
Allen Grush, 742 Bethel Drive, said he previously sent the Board an e-mail. He commented there was no safe way to handle chemicals. He stated that a last resort policy should mean they would only use it if it were a last resort.
Teresa Damron, 605 Howard, supported the Dwyer12-03 ordinance. She said she would rather see no spraying at all. She thought this plan was moderate and workable. She thought they chose the plan that protects the County and its residents and environment the most. She noted public sentiment was moving away from toxic chemicals for control of weeds. She didn’t think there was anything in the Dwyer version that prevents the County from discouraging noxious weeds along its roadsides. She thought the risks to the County of using toxic chemicals outweighs the risk of a noxious weed becoming established on a roadway.
Annie Dochnal, 1010 Monroe St., commented that with the passage of an ordinance like the Dwyer version, Lane County will be among the leaders in the Pacific Northwest by taking measures to protect human and environmental health when maintaining roadsides. She said the last resort policy has widespread support and is good.
Jan Nelson, 85354 Doane, Eugene, stated she is a member of the Public Health Advisory Committee. She said the Department of Public Works considers road safety and costs to be important issues in this discussion. She said the Health Advisory Committee is concerned about the safety of herbicides to the health and environment for the future.
John Sundquist, 31139 Lanes Turn Road, urged the Board to support the Dwyer version because the language is an important part of IVM policy that has been missing until now. He noted that herbicides could still be used, but as a last resort. He stated the Dwyer versions resolve a lot of important questions for Lane County.
There being no one else signed up to speak, Commissioner Sorenson closed the Public Hearing.
Lininger saw advantages to Dwyer’s 12-03. He noted they now have the use of herbicides as one tool in the toolbox. He commented they will have greater choices on how much poisons they use on the road. He thought the Board of Health should have a greater role in those decisions. He had some concerns about this ordinance. He said they have to be careful they are not creating an ordinance that will engender litigation against the County with general litigation. He requested changes: For Dwyer 2, page 15-35, the purpose section, 15.500(2) it says the County shall use non-herbicidal control methods including prevention as its primary tool. He wanted to substitute "primary" with "preferred". His concern was that primary is a quantitative number. He thought it could lead to a lawsuit. He wanted to make the same change at the bottom of the page. On page 16, (c ) he wanted to use the language to the extent practicable. On page 16, number 3, use of herbicide products (d), he said the director of Public Works needs the Board of Health’s approval, in the second sentence, prior to the authorization, he wanted an escape valve to include: "Unless the Board of Health excuses compliance with some or all of these requirements based upon a finding of emergency."
Lininger to delete from page 17, 15.510, after the effective date of the chapter (VII), "stopping routinely scheduled applications." With (e), the reduction requirement, he wanted an absolute reduction of 5% or up to 7.5% each year, which is at odds with the discretionary evaluation of all the factors, but at the end of the year it is a gradual no-spray policy. He wanted to state within one year after the effective date of the chapter and for each consecutive year, "Lane County will aspire to reduce its herbicide use along County roadsides by at least 5%." He wanted to keep the last sentence. With regard to 4 a), he noted there were double negatives, with product contains: none of the following substances: 1) instead of not classified, substance is classified, 2) substance is classified, 3) substance is listed. With regard to f) he would move it to the list of considerations. "Product is not labeled as toxic to fish, birds, bees, wildlife or domestic animals" he would move to the last subpoint under 5. With regard to notice requirements, on 15.520, (2) under public notification, he wanted to delete known inerts. He said it is the medium in which the active ingredient is found.. He suggested deleting the last requirement which states some people could be particularly susceptible to adverse health effects due to herbicide exposure. He stated that the Health Advisory Committee takes account of those considerations. He didn’t think under 4) that they needed to publish it in the newspaper. He wanted to delete (6), notifying hospital emergency departments.
With regard to 15.525 on record keeping, Lininger wanted "in addition to complying with all record keeping requirements imposed by state and federal laws, these record shall include" to be first, then the rest of the language with the ordinance, date, and location.
Wilson noted the Board could go forward with the Dwyer version 2 as revised by Lininger’s changes for a second reading and adoption.
Green asked for a summary from staff of the implications.
Chickering agreed with one of the changes that Lininger made, moving the requirement 6, about labeled toxic to fish, birds bees and wildlife, to be moved into the considered category. He said that requirement would have eliminated every herbicide that they used from the permitted products list. With regard to the considered area, they were concerned about half-life of chemical and the second Dwyer version still contains a 30-day specification. They don’t believe that any of theirs would meet the 30-day requirement, they are all different and the soil and atmospheric conditions are printed as a range with a general average on labels. He thought having 30 days might cause problems when they come to the Board of Health.
Chickering explained they had gone through costs to implement some of the alternative measures. He stated their herbicide program runs two to four percent of their IVM budget of $1.9 million. He noted they are spending $40,000 to $80,000 per year on herbicide applications. He added other versions have costs associated with them. He said the prevention techniques and the addition of a couple of employees would add up in the first year and they might have to spend $200,000 to implement a major program. He said if they did handle pulling weeds the cost could go to $600,000.
Chickering commented if they use a product that is not on the approved list, they are required to make an additional report to the Board of Health and there are specific requirements. He believed that using the scheduling for the Board, they were looking at a four-month process to get it done from the time staff identifies a problem. He also estimated that one of those requests would generate about 200 hours of staff time or $10,000 before they get a decision on whether to use something or not. He noted that bus stops were a significant issue in the early 90’s when the current version of the IVM policy was under discussion by VMAC. He said the school districts reported that there are 10,526 bus stops in Lane County. He stated the current version calls for a 200-foot buffer on either side and there is a problem determining exactly where they are and the practical problems associated with it.
Morrison wanted VMAC involved in the process. With regard to the report requirements, she commented they are already exceeding what was written. She stated the bus stops change because of the mobility of students in and out of school systems. She supported recommendation of verbiage that Lininger made.
Dwyer thought the emergency room should be put in because the people who have exposure to chemicals are not aware that they have that exposure and they go into an emergency room. He thought it was a tool in the box for an emergency physician to understand there might be a relationship between the symptoms that are displayed by people who come in and the chemicals themselves. He hoped the Board would reconsider that aspect. With the concerns of the school bus stops, he recommended they put language in that states within 200 feet of known or identified school bus stops or stations. He commented it was not the intent of this policy to ban the use of chemicals, it was to evaluate targeted species and situations that determine the most cost-effective prudent method to eliminate the problem.
Sorenson noted in listening to the testimony, he heard little support expressed in favor of the Public Works and IVM (8-03). He wanted the Dwyer 2 ordinance as it is an effort to encourage certain types of prevention techniques to encourage the manual, mechanical and biological and other alternatives. He thought there should be a straight ban of the chemicals.
Sorenson asked if they could by motion have all of the ordinances including a modification to the Dwyer 2, to a deliberation by a voice vote by the Board and have a deliberation on the 30th.
Wilson responded they could move, 8,9, 10, 11 and 12-03 forward for deliberation. She was more concerned with13-03. She thought it could be available tomorrow or later today.
Sorenson said they could move 8, 9, 10, 11, 12 and 13 as it stood on July 30.
Wilson responded that the risk they have is they had a public hearing on 8-12 and there has not been a public hearing on 13. She said the charter does not require a public hearing. She noted an alternative to moving a 13-03 forward is to make the revisions to 12-03
MOTION: to move that this package of changes amend Ordinance 12-03 with a few additional changes: 15.520, delete his first proposed change under (2) where he proposed to get rid of the language of known inerts and other chemicals mixed with the product. He previously proposed to strike that language, but changed his mind. He also included (6) which he also proposed to strike. He wanted to include Dwyer’s proposed change about the language concerning bus stops or stations. He proposed that (9) read that within 200 feet of known or identified school bus stops or stations.
Lininger MOVED, Dwyer SECONDED.
Green noted that 15.525, where Lininger created the language, after the minimum of six years in addition, records shall include, he wanted to state "but not limited to," actual costs associated.
The maker of the motion and the second agreed.
With regard to 15.530 annual reporting, Green wanted to insert "prior to a public meeting of the Board of Health, that VMAC reviewed. He wanted to make sure that VMAC was a part of the system.
With regard to 15.530, Wilson stated the last paragraph should say: "The report shall first be made available to the Vegetation Management Advisory Committee after acceptance by the Board of Health and following presentation to the Vegetation Management Committee, the Department of Public Works shall present a report."
Morrison commented on page 15-36 under use of Herbicide products, 3 a), the Board of Health shall adopt by resolution a permitted products list for use of herbicides by the Department of Public Works for roadside management, the Board of Health shall solicit review and comment from the public health administrator who will work with the Public Health Advisory Committee. She wanted to insert that the VMAC and from the Public Health Administrator who will work with the Public Health Advisory Committee.
17. COMMISSIONERS' ANNOUNCEMENTS
Green noted that he would be attending a conference in Portland about funding.
Morrison announced that she attended a NACo Conference in Milwaukee.
18. CORRESPONDENCE TO THE BOARD
19. OTHER BUSINESS
ORDER 03-7-16-12 Ratifying the Tentative Agreement Between Lane County and Administrative Professional Association of Lane County Public Works, Inc
MOTION: to approve ORDER 03-7-15-12.
Dwyer MOVED, Morrison SECONDED.
VOTE: 4-0 (Lininger out of room).
There being no further business, Commissioner Sorenson adjourned the meeting at 5:30 p.m.