Audit of the Massachusetts Department of Agricultural Resources Overview of Audited Entity

This section describes the makeup and responsibilities of the Massachusetts Department of Agricultural Resources.

Overview

The Massachusetts Department of Agricultural Resources (MDAR), an agency under the Executive Office of Energy and Environmental Affairs, was established by Section 1 of Chapter 20 of the Massachusetts General Laws. This section of the General Laws also established the Massachusetts Board of Agriculture, which oversees MDAR’s operations. The Massachusetts Board of Agriculture consists of 13 members who are appointed by the Governor and who are composed of farmers and other members of the public. The Massachusetts Board of Agriculture presents MDAR with current agricultural topics and provides input on policies and budgets.

According to MDAR’s website, “[MDAR’s] mission is to help keep the Massachusetts food supply safe and secure, and to work to keep Massachusetts agriculture economically and environmentally sound.” The secretary of the Executive Office of Energy and Environmental Affairs appoints MDAR’s commissioner, who oversees MDAR’s day-to-day operations. MDAR has the following five operating divisions: Produce Safety, Agricultural Markets, Animal Health, Crop and Pest Services, and Agricultural Conservation and Technical Assistance.

MDAR received state appropriations to fund its programs and operations, totaling $40,073,221 in fiscal year 2021 and $41,804,192 in fiscal year 2022. As of September 22, 2023, MDAR had approximately 105 employees.

Pesticide Regulation

According to MDAR’s website,

Pesticides are substances or mixture of substances that prevent, destroy, repel or mitigate pests, or defoliate, desiccate or regulate plants. Pests for example can be insects, fungi, weeds, snails and slugs, mold and mildew. So insecticides, fungicides and herbicides and even common disinfectants are pesticides.

According to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as well as Chapter 132B of the General Laws—the Massachusetts Pesticide Control Act (MPCA)—MDAR is responsible for enforcing pesticide regulations. The MPCA established MDAR as the sole authority in regulating pesticides within the Commonwealth. The MPCA also created the Massachusetts Pesticide Board and the Massachusetts Pesticide Board Subcommittee. The board advises MDAR’s commissioner on the administration and implementation of pesticide laws and acts as an appellate body for MDAR’s decisions and actions regarding pesticides.

MDAR’s commissioner appoints a director who is responsible for the day-to-day administration of the implementation of the Pesticide Enforcement Program in accordance with Chapter 132B of Title 333 of the Code of Massachusetts Regulations (CMR). Since 1980, MDAR has been in a cooperative agreement with the Environmental Protection Agency to enforce the MPCA and the FIFRA. Under this agreement, the Commonwealth has primary enforcement responsibility for pesticide use violations.

Rights of Way Program

A right-of-way (ROW), according to 333 CMR 11.02, is “any roadway, or thoroughfare on which public passage is made and any corridor of land over which facilities such as railroads, powerlines, pipelines, conduits, channels or communication lines or bicycle paths are located.”

MDAR established the ROW Program to ensure that entities that own or maintain ROWs use pesticides in accordance with 333 CMR 11.00. MDAR requires applicants to the ROW Program to develop and submit Vegetation Management Plans (VMPs) and Yearly Operational Plans (YOPs) for review and approval. (See the “VMPs” and “YOPs” sections for more information regarding these plans.) MDAR’s ROW Program coordinator oversees the organization and management of VMPs and YOPs throughout the review and approval process.

MDAR’s ROW Program coordinator is also responsible for conducting inspections to ensure that applicants to the ROW Program use the types and amounts of pesticides outlined in their VMPs and YOPs. During each of these inspections, the ROW Program coordinator prepares a Pesticide Use Observation Report and a General Inspection Report. These reports include details such as the name of the applicant to the ROW Program, the pesticide applicator’s name and license number, and the pesticide types and amounts used by the pesticide applicator.

According to MDAR’s website,¹

[MDAR] has regulatory jurisdiction over herbicide application in rights-of-way areas. The regulations (333 CMR 11.00) contain provisions for the use of herbicides as part of vegetation management in support of the functioning and use of rights-of-way areas while minimizing the potential impacts of . . . herbicides on human health and the environment. Specific restrictions exist for the use of herbicides in sensitive areas, which include water supplies, wetlands, state-listed species habitat, and inhabited and agricultural areas. [MDAR] maintains a list of herbicides approved for use in these sensitive areas. [MDAR] also reviews and approves Vegetation Management Plans (VMPs) and Yearly Operational Plans (YOPs) submitted by entities involved in rights-of-way management.

See the Appendix for a list of applicants to the ROW Program during the audit period.

According to MDAR’s “Standard Operating Procedures for the Pesticide Enforcement Program,” the Division of Crop and Pest Services performs the following five major functions:

1.   Licensing/Certification Program. [The Pesticide Enforcement Program] maintains a division to license and/or certify individuals who wish to use pesticides commercially, sell restricted-use pesticides, or to purchase and use restricted-use pesticides. There are four categories of licensing or certification:

Commercial Applicator- allows individuals to use a general use pesticide on a property that is not their own and/or use restricted use pesticides under the direct supervision of someone with a certification.

Commercial Certification- allows individuals to use or supervise the use of restricted use pesticides.

Private Certification- allows individuals to use or supervise the use of restricted use pesticides in the production of a commodity.

Dealers License- allows individuals to distribute restricted use or state-limited use pesticides. . . .

2.   Enforcement. [The Pesticide Enforcement Program] enforces FIFRA and MPCA by conducting routine inspections and investigations of pesticide use/misuse.

Routine inspections include but are not limited to inspecting pesticide producing establishments, retail outlets selling general use pesticides and outlets managed by licensed dealers distributing restricted use pesticides, and conducting inspections with licensed individuals and their business, and schools.

Use/misuse investigations involve answering consumer complaints and/or following up on any alleged violations of the pesticide regulations.

3.   Registration. [The Pesticide Enforcement Program] processes fees and within certain limits approves pesticide re-registration.

4.   Education. [The Pesticide Enforcement Program] is committed to educating the general public and licensed applicators on the proper use and handling of pesticides by means of distributing information literature, providing speakers etc.

5.   Staff to the Pesticide Board and Pesticide Board Subcommittee. [The Pesticide Enforcement Program] provides the support staff for the Board and Subcommittee.

Licensed applicators,² as referenced in the above standard operating procedures, are individuals who have obtained a valid license to use, sell, or purchase pesticides.

VMPs

A VMP, according to 333 CMR 11.02, is “a long term management plan for the applicant’s right-of-way system which describes the intended program for vegetation control over a five year period.”

According to MDAR’s “Vegetation Management Plan (“VMP”) Process Step By Step Pursuant To 333 CMR 11.00” document, each applicant to the ROW Program submits its VMP through either email or postal service to MDAR’s ROW Program coordinator by September 1 before the calendar year of the first year of the applicant’s proposed timeframe.

MDAR’s ROW Program coordinator initially reviews each VMP to verify that all the elements required by 333 CMR 11.05(2) (as stated in the requirements for submission of VMP section below) are incorporated into the plan. The ROW Program coordinator publishes a notice regarding the public hearing(s) at least 21 days before each scheduled hearing in local publications. The ROW Program coordinator then contacts each municipality covered by the plan, as well as each municipality’s chief elected official, board of health, and conservation commission. Written comments from the public are accepted up to 45 days after the ROW Program coordinator posts the hearing notice. Within 30 days of the end of the public’s comment period, MDAR distributes copies of the VMP and the public’s submitted comments to the ROW Advisory Panel for its review of and recommendation for each VMP.

The ROW Advisory Panel communicates any questions and modification requests through email to each applicant to the ROW Program and the ROW Program coordinator. During this recommendation period, MDAR provides open lines of communication between the ROW Advisory Panel and the applicant to ensure that the VMP is in compliance with 333 CMR 11.05. After the ROW Advisory Panel has had all of its concerns regarding the proposed VMP addressed, it typically recommends that MDAR approve the VMP. The ROW Program coordinator sends the VMP and the ROW Advisory Panel’s recommendations to MDAR’s commissioner for final approval.

During the audit period, 57 applicants to the ROW Program submitted a total of 78 proposed VMPs. These applicants comprised 32 Commonwealth cities and towns and 25 Commonwealth businesses.

VMP Requirements

VMP requirements are listed in 333 CMR 11.05(2) as the following:

(a)     General statement of goals and objectives of the VMP.

(b)     Identification of target vegetation.

(c)     Intended methods of vegetation management and rationale for use. . . .

(d)     Discussion of justification for proposed herbicide applications. . . .

(e)     Methods, references and sources for identifying sensitive areas and control strategies proposed for sensitive areas. . . .

(f)      Operational guidelines for applicators relative to herbicide use.

(g)     Identification and qualifications of individuals developing and submitting a plan.

(h)     A detailed description of the [Integrated Pest Management] Program, showing how it will minimize the amount and frequency of herbicide application.

(i)      Description of alternative land use provisions or agreements that may be established with individuals, state, federal or municipal agencies that would minimize the need for herbicides, including the rationale for accepting or denying any reasonable request made by any individual.

(j)      Description of a remedial plan to address spills and related accidents.

(k)     For [certain] state agencies and authorities . . . a description of the applicant’s policy to eliminate or, if necessary, reduce the use of pesticides for any vegetation management purpose along roadways, and a demonstration that, for the proposed application, the costs of non-chemical vegetation control significantly outweigh the benefits.

YOPs

A YOP, according to 333 CMR 11.02, is “the yearly operational plan which describes the detailed vegetation management operation for the calendar year consistent with the terms of the long term Vegetation Management Plan.” If, for whatever reason, an entity that owns or maintains a ROW does not apply pesticides to applicable ROWs in any given year that falls under its approved VMP, then it does not have to submit a YOP for that corresponding year.

According to MDAR’s “Yearly Operational Plan (“YOP”) Process Step By Step Pursuant to 333 CMR 11.00” document,³ the steps for submitting a YOP are as follows:

1.   YOP submitted via email or direct mail by the applicant (“Applicant”) to the Massachusetts Department of Agricultural Resources (“MDAR”) Rights-of-Way (“ROW”) Coordinator (“ROW Coordinator”).

2.   Applicant sends notice of submission is provided to the local board of health, Conservation Commission, Chief Elected Official, [Massachusetts Water Resources Authority] (where applicable) and [Department of Conservation and Recreation] (where applicable).

3.   ROW Coordinator gives preliminary reviews to ensure that all the elements required by 333 CMR 11.00 and other applicable laws are incorporated into the YOP.

4.   ROW Coordinator reviews YOP to ensure it is consistent with the VMP and applicable laws. If changes are needed, the ROW Coordinator works with the Applicant to ensure the changes are made.

5.   ROW Coordinator posts a notice of submission and 45-day public comment period in Environmental Monitor and to interested parties. . . .

6.   ROW Coordinator, and other MDAR staff as necessary, review the YOP and public comments to make a recommendation to the Commissioner of MDAR.

7.   Notification of the decision is sent to the Applicant.

During the audit period, 51 applicants submitted a total of 123 YOPs to the ROW Program. These applicants comprised 27 Commonwealth cities and towns and 24 Commonwealth businesses.

YOP Requirements

According to 333 CMR 11.06(2),

The YOP shall include but not be limited to the following:

(a)     Maps locating the rights-of-way and sensitive areas not readily identifiable in the field;

(b)     Herbicides proposed including Environmental Protection Agency (EPA) Registration numbers, application rates, carriers and adjuvants;

(c)     Herbicide application techniques and alternative control procedures proposed.

(d)     The name, address and phone number of the company which will perform any herbicide treatment;

(e)     Identification of target vegetation;

(f)      The name, address and phone number of the individual representing the YOP applicant;

(g)     Description of methods used to flag or otherwise designate sensitive areas on the right of-way;

(h)     Herbicide Fact Sheets as approved by [MDAR]; and

(i)      Procedures and locations for handling, mixing and loading of herbicide concentrates.

1.   Sensitive areas, according to 333 CMR 11.02 and as referenced in this regulation, are “any areas within Rights-of-Way, including No-Spray and Limited-Spray Areas, in which public health, environmental or agricultural concerns warrant special protection to further minimize risks of unreasonable adverse effects.”

2.   For the purposes of this audit report, we use the term pesticide applicators to refer to licensed applicators (unless stated otherwise).

3.   According to the Massachusetts Environment Policy Act website, the Environmental Monitor, as referenced in the quoted document, “is a bi-weekly publication that provides notice of new projects that have been submitted to the [Massachusetts Environment Policy Act] Office for review, other projects currently under review, certificates, and public notices.”

Date published:	June 12, 2024