One of our supporters has been pursuing a concerning issue regarding pesticide application in San Francisco. As our regular readers will know, proper notices are required when spraying toxic herbicides (designated Tier II, More Hazardous and Tier I, Most Hazardous) on city property – including our parks. Recently, SF Environment made changes to its application guidelines to provide better protection to the public, and to workers applying the pesticides. This requirement includes adding a blue dye to the mix so the public can see what has been sprayed with these chemicals.
However, there’s a loophole. Neither notices nor dye are required if the area is “inaccessible to the public.” As the Natural Resources Department (renamed from NAP, the Natural Areas Program) works to limit public access to only a few “maintained trails” we’re concerned that this will give SF Recreation and Parks a free pass to use toxic herbicides like glyphosate (Roundup) without notices or dye.
So concerned citizen Tom Borden gathered information under the Sunshine Act. His research culminated in this letter to the Commissioners for the Environment.
The department you oversee is willfully violating San Francisco’s Environment Code by offering City departments a loophole to avoid posting when pesticides are sprayed. The Environment code Section 304 requires posting for all pesticide applications in all locations. (One exception is noted, “right-of-way locations that the general public does not use for recreational purposes”. This is intended to allow unposted treatments at places like roadway median strips, but certainly not in parks, adjacent to sidewalks and in watersheds.)
However, the IPM Compliance checklist says something very different, “Posting is not required for areas inaccessible to the public.” This “publicly inaccessible” exception violates the Code and puts City workers and the public at risk. According to IPM staff, they leave it up to individual departments to decide which areas are “publicly inaccessible”. IPM staff have stated they do not make it their business to monitor these designations.
This clearly puts City employees at risk of unwitting exposure to pesticides. It also puts the public at risk as land managers are left to their own devices to decide which areas qualify as “publicly inaccessible”.
On top of this, the Reduced Risk Pesticide List: Restrictions on “most hazardous”(Tier I) herbicides, was revised this March to remove the requirement that blue dye be added to Tier I herbicides if they are used in places where posting is not required. In other words, if the land manager deems a location to be “publicly inaccessible”, there is no requirement to post and no requirement to use the indicator dye. Anyone who goes through the area, City employee or member of the general public, will have no idea they are exposing themselves to Tier I herbicides. (Why would you remove this cheap protection, even if it did only benefit the person applying the herbicide? Also, the blue dye enables them to see where they sprayed, allowing them to apply the herbicide more efficiently.)
This posting loophole is not necessary under the precautionary principle and it violates the law. It opens the City to lawsuits from employees who were not provided the protections the law promises. I hope you will have the Department to rectify this.
See the email exchange below for additional information..
Thank you for your attention to this matter.
EMAILS IN THE BACKSTORY
If you want to see the email trail yourself, here it is:
This is a Sunshine request.
San Francisco Environment Code Section 304.(e) allows the Department of Environment to grant permanent (ongoing as opposed to one time) exemptions to the notification requirements of the code.
(e) The Department may grant exemptions to the notification requirements for one-time pesticide uses and may authorize “permanent” changes in the way City departments notify the public about pesticide use in specific circumstances, upon a “finding” that good cause exists to allow an exemption to the notification requirements. Prior to granting an exemption pursuant to this subsection, the City department requesting the exemption shall identify the specific situations in which it is not possible to comply with the notification requirements and propose alternative notification procedures. The Department shall review and approve the alternative notification procedures.
Please provide a list of all “permanent” exemptions that have been granted in the last 10 years. If any have been granted to the Recreation and Parks Department or the SFPUC, please provide copies of those “findings” and a copy of the exemption request from the department.
He got a response – a phone call with Chris Geiger, responsible for San Francisco’s Integrated Pest Management program. Chris performs a delicate balancing act between reducing pesticide use and dealing with land managers who want to use these chemical weapons against “invasive” plants. Tom asked for confirmation of the discussion in writing. He got it from Anthony Valdez, Commission Secretary.
On 7/5/2017 3:14 PM, Valdez, Anthony (ENV) wrote:
As Chris Geiger discussed with you – the Department of the Environment has not granted any permanent exemptions to the posting requirements of Environment Code Section 304(a) for publicly accessible parcels. We do allow variances from the posting requirements for some publicly inaccessible parcels, most notably certain areas of San Francisco International Airport and closed utility rights-of-way managed by the Public Utilities Commission.
Anthony E. Valdez, MPA
Okay, good. So just to make sure, Tom asked:
Are any areas managed by the Recreation and Parks Department considered “publicly inaccessible parcels”?
If so, please provide a list of those areas and the associated variances from the posting requirements.
On 7/12/2017 2:48 PM, Valdez, Anthony (ENV) wrote:
Apologies for my delay in coordinating a response – we have two Commission on the Environment meetings this week. Please see the response below from Chris Geiger. Again, I encourage you to feel free to email or call Chris with any questions you may have:
The Department of the Environment does not review individual parcels to determine if they qualify as “publicly inaccessible.” That determination is left to the individual departments, including the Dept. of Recreation and Parks. We therefore do not have any specific variances or exemptions on file. The reference document for this policy is the IPM Compliance Checklist.
You mentioned on the phone that you want to ascertain whether park areas adjacent to trails might be considered “publicly inaccessible” if there were signage requiring users to stay on the trail. The answer is no. The posting exemption for publicly inaccessible areas is meant to apply to work areas, such as the Rec & Park Corporation Yard, not to public parks. We have never and would not ever grant any posting exemption for this kind of situation, and in my tenure we have never had any discussions or written exchanges with the Dept. of Recreation & Parks where this question has even come up. In my experience, Recreation & Parks has been quite careful and responsible in complying with posting requirements.
Anthony E. Valdez, MPA
That sounded encouraging. Just to confirm, though…
Thanks Anthony and Chris,
It’s good to know all herbicide applications in regular parkland and Natural Areas will be posted and that blue marking dye will be used.
On a related topic, Aquamaster was sprayed on Mt Davidson on July 5 . The treatment was to control poison oak growing onto a primary trail. The herbicide was sprayed on PO and grass that was literally on the trail edge. The trail was not closed off as required. Attached are photos of the sign and the application area. More training and better supervision needed?
He followed up with another email.
Chris and Anthony,
In your July 12 email to me you say:
“The Department of the Environment does not review individual parcels to determine if they qualify as “publicly inaccessible.” That determination is left to the individual departments, including the Dept. of Recreation and Parks. We therefore do not have any specific variances or exemptions on file. The reference document for this policy is the IPM Compliance Checklist.”
I see the Compliance Checklist does say, “Posting is not required for areas inaccessible to the public.” However, the actual law, SF Environment Code Chapter 3, does not make any such exception. The posting exception in the Checklist violates the language of the Environment Code. How does the Department of Environment justify making this exception?
Chapter 3 is meant to protect everyone in the City. The IPM Compliance Checklist note removes this protection for City employees. Doesn’t this leave the City open to lawsuits by willfully removing protections the law promises City employees?
As you know, I am concerned the RPD will use this as a loophole to avoid posting requirements in Natural Areas since their position is that the public is prohibited from straying off trail into those areas. You state above that your department will not provide oversight of the “publicly inaccessible” designations made by City land managers. This leaves in doubt what really qualifies as publicly inaccessible and as a result, leaves the public open to exposure to herbicide applications that are not posted or marked with blue dye.
I appreciate that your email also makes assurances that you have not granted RPD any additional posting exceptions, beyond this one granted to all City departments.
Looking forward to your reply,
415 252 5902
After that, there was the letter to the Commissioners to express the same concerns.
Thanks, Tom, for trying to protect everyone from toxic herbicides in our parks!