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S03780 Summary:

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S03780 Floor Votes:

S03780 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3780--B
 
                               2009-2010 Regular Sessions
 
                    IN SENATE
 
                                     March 31, 2009
                                       ___________
 
        Introduced  by  Sens. THOMPSON, OPPENHEIMER, PARKER, PERKINS, SCHNEIDER-
          MAN, STEWART-COUSINS -- (at request of the Department of Environmental
          Conservation) -- read twice and ordered printed, and when  printed  to
          be  committed to the Committee on Environmental Conservation -- recom-
          mitted to the Committee on Environmental  Conservation  in  accordance

          with  Senate  Rule  6,  sec.  8 -- committee discharged, bill amended,
          ordered reprinted as amended and  recommitted  to  said  committee  --
          reported  favorably from said committee and committed to the Committee
          on Codes -- committee discharged, bill amended, ordered  reprinted  as
          amended and recommitted to said committee
 
        AN  ACT  to amend the environmental conservation law and the agriculture
          and markets law, in relation  to  phosphorus  in  household  cleansing
          products and lawn fertilizer
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 2  of  section  35-0105  of  the  environmental
     2  conservation  law,  as  amended  by  chapter 341 of the laws of 1975, is
     3  amended to read as follows:

     4    2. [No household cleansing product shall be distributed, sold, offered
     5  or exposed for sale in this state after December 31, 1971,  which  shall
     6  contain  a  phosphorus  compound  in  excess  of  eight and seven-tenths
     7  percent by weight expressed as phosphorus.] a. (1) No household  cleans-
     8  ing  product,  except those used in dishwashers, food and beverage proc-
     9  essing equipment, and  dairy  equipment,  shall  be  distributed,  sold,
    10  offered  or  exposed  for sale in this state [on or after June 1, 1973,]
    11  which [shall contain] contains a phosphorus  compound  other  than  such
    12  trace [or incidental] concentrations as may be authorized by the commis-
    13  sioner by regulation.

    14    (2)  No  household  cleansing  product  used  in  dishwashers shall be
    15  distributed, sold, offered or exposed  for  sale  in  this  state  which
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07812-17-0
        S. 3780--B                          2
 
     1  contains  a  phosphorus  compound  in  excess  of five-tenths percent by
     2  weight expressed as phosphorus.
     3    (3)  No household cleansing product used in food and beverage process-
     4  ing equipment and dairy equipment shall be distributed, sold, offered or
     5  exposed for sale in this state which contains a phosphorus  compound  in

     6  excess of eight and seven-tenths percent by weight expressed as phospho-
     7  rus.
     8    b. No owner, occupant, or person in control of a commercial establish-
     9  ment  shall  possess  or  use  or  authorize  any other person by way of
    10  service contract or other arrangement to possess or use  in  this  state
    11  any  household  cleansing product except those used in dishwashers, food
    12  and beverage processing equipment, and  dairy  equipment,  on  or  after
    13  January  1, 1976 which shall contain a phosphorus compound other than in
    14  such trace or incidental concentrations as  may  be  authorized  by  the
    15  commissioner by regulation.
    16    §  2.  Paragraph b of subdivision 2 of section 35-0105 of the environ-
    17  mental conservation law, as amended by  section  one  of  this  act,  is
    18  amended to read as follows:

    19    b. No owner, occupant, or person in control of a commercial establish-
    20  ment  shall  possess  or  use  or  authorize  any other person by way of
    21  service contract or other arrangement to possess or use  in  this  state
    22  any  household cleansing product [except those used in dishwashers, food
    23  and beverage processing equipment, and  dairy  equipment,  on  or  after
    24  January  1,  1976]  which [shall contain] contains a phosphorus compound
    25  [other than in such trace or incidental concentrations as may be author-
    26  ized by the commissioner by regulation] in excess of the amount  allowed
    27  for such product under paragraph a of this subdivision.
    28    §  3.  Article  17 of the environmental conservation law is amended by
    29  adding a new title 21 to read as follows:

    30                                  TITLE 21
    31                               NUTRIENT RUNOFF
    32  Section 17-2101. Definitions.
    33          17-2103. Sale or use of phosphorus fertilizer restricted.
    34          17-2105. Local fertilizer regulation.
    35  § 17-2101. Definitions.
    36    As used in this title:
    37    1. "Compost" means the biologically stable humus-like material derived
    38  from composting or the aerobic, thermophilic  decomposition  of  organic
    39  matter.
    40    2. "Fertilizer" means the same as "specialty fertilizer" as defined in
    41  section one hundred forty-three of the agriculture and markets law.
    42    3. "Lawn" or "non-agricultural turf" means any non-crop land area that

    43  is  covered by any grass species. Lawn or non-agricultural turf does not
    44  mean flower or vegetable gardens, pasture, hayland, trees, shrubs,  turf
    45  grown on turf farms, or any form of agricultural production.
    46    4.  "Phosphorus  fertilizer"  means  fertilizer in which the available
    47  phosphate (P205) content is greater than 0.67 percent by weight, exclud-
    48  ing compost.
    49  § 17-2103. Sale or use of phosphorus fertilizer restricted.
    50    1. No person shall apply or authorize any person  by  way  of  service
    51  contract  or  other  arrangement  to  apply in this state any phosphorus
    52  fertilizer on lawn or non-agricultural turf, except when:
    53    (a) A soil test indicates that additional  phosphorus  is  needed  for

    54  growth of that lawn or non-agricultural turf; or
    55    (b)  The  phosphorus  fertilizer is used for newly established lawn or
    56  non-agricultural turf during the first growing season.
        S. 3780--B                          3
 
     1    2. Any retailer selling or offering for sale phosphorus fertilizer for
     2  use on lawn or non-agricultural turf shall comply with the  retail  sale
     3  requirements  in  section one hundred forty-six-g of the agriculture and
     4  markets law related to display of phosphorus fertilizer and the  posting
     5  of educational signs.
     6    3. No person shall apply fertilizer to:
     7    (a)  lawn  or  non-agricultural  turf between December first and April
     8  first, annually;

     9    (b) any impervious surface including parking lots, roadways, and side-
    10  walks. If such application occurs, the fertilizer  must  be  immediately
    11  contained and either legally applied to lawn or non-agricultural turf or
    12  placed in an appropriate container; or
    13    (c)  any  lawn  or  non-agricultural  turf on any real property within
    14  twenty feet of any surface water, except that this restriction shall not
    15  apply where a continuous natural vegetative buffer, at  least  ten  feet
    16  wide,  separates  an  area  of lawn or non-agricultural turf and surface
    17  water, and except that, where a spreader guard, deflector shield or drop
    18  spreader is used to apply fertilizer, such  application  may  not  occur

    19  within  three  feet of any surface water. This paragraph shall not apply
    20  to an application of fertilizer for newly established lawn or  non-agri-
    21  cultural turf during the first growing season.
    22    4.  Nothing  in  this title shall impair or supersede the authority of
    23  the commissioner of agriculture and markets pursuant to articles ten and
    24  twenty-five-AA of the agriculture and markets law.
    25  § 17-2105. Local fertilizer regulation.
    26    A local government may enact more stringent standards for the applica-
    27  tion of fertilizer for lawn and non-agricultural turf  than  established
    28  in  this title, provided, however, that any local government that enacts
    29  such standards after January 1, 2011 must demonstrate to the  department

    30  prior  to  enactment  that  additional  or  more stringent standards are
    31  necessary to address local water quality conditions.
    32    § 4. The environmental conservation law is amended  by  adding  a  new
    33  section 71-1945 to read as follows:
    34  § 71-1945. Enforcement of title 21 of article 17.
    35    1.  Except  as  otherwise  provided  in  this  section, any person who
    36  violates any provision of title 21 of article 17 of this chapter or  any
    37  rule,  regulation  or  order  issued  thereunder  shall be liable to the
    38  people of the state for a civil  penalty  not  to  exceed  five  hundred
    39  dollars  for  a  first violation, and not to exceed one thousand dollars
    40  for each subsequent violation, to be assessed by the commissioner  after

    41  a hearing or opportunity to be heard.
    42    2. Any owner or owner's agent, or occupant of a household who violates
    43  any  provision  of  title  21 of article 17 of this chapter or any rule,
    44  regulation or order issued thereunder shall, for a  first  violation  be
    45  issued  a  written warning and be provided educational materials. Upon a
    46  second violation, the owner or owner's agent, or occupant of a household
    47  shall be liable to the people of the state for a civil  penalty  not  to
    48  exceed  one  hundred dollars, and for any subsequent violations shall be
    49  liable to the people of the state for a civil penalty not to exceed  two
    50  hundred fifty dollars. No owner or owner's agent of a household shall be

    51  held  liable  for  any  violation  by an occupant. Such penalties may be
    52  assessed by the commissioner after a hearing or opportunity to be heard.
    53    § 5. The title heading of title 19 of article 71 of the  environmental
    54  conservation  law,  as  amended  by  chapter 400 of the laws of 1973, is
    55  amended to read as follows:
        S. 3780--B                          4
 
     1           ENFORCEMENT OF TITLES 1 THROUGH 11 AND 15 THROUGH [19] 21
     2             INCLUSIVE OF ARTICLE 17 AND SPILLS OF BULK LIQUIDS
 
     3    §  6.  The  agriculture  and  markets  law  is amended by adding a new
     4  section 146-g to read as follows:
     5    § 146-g. Retail sale. Any retailer who sells or  offers  for  sale  to
     6  consumers  specialty  fertilizer in which the available phosphate (P205)

     7  content is greater than 0.67 percent, shall:
     8    (a) display such phosphorus-containing specialty fertilizer separately
     9  from non-phosphorus specialty fertilizer; and
    10    (b) post in the location where phosphorus-containing specialty  ferti-
    11  lizer  is  displayed  a clearly visible sign which is at least eight and
    12  one-half inches by eleven inches in size and states that:
    13    "Phosphorus runoff poses a threat to water quality.  Therefore,  under
    14  New  York  law,  phosphorus-containing fertilizer may only be applied to
    15  lawn or non-agricultural turf when:
    16    (1) A soil test indicates that additional  phosphorus  is  needed  for
    17  growth of that lawn or non-agricultural turf; or

    18    (2)  The fertilizer is used for newly established lawn or non-agricul-
    19  tural turf during the first growing season."
    20    § 7. This act shall take effect on the thirtieth day  after  it  shall
    21  have become a law, provided, however, that:
    22    1. retailers shall have sixty days from the effective date of this act
    23  to  sell  through product subject to subdivision 2 of section 35-0105 of
    24  the environmental conservation law as amended by section one of this act
    25  which is held in inventory on the effective date;
    26    2. sections three, four, five and six of this act  shall  take  effect
    27  January 1, 2012;
    28    3.  persons may continue to use phosphorus fertilizer on lawn and non-
    29  agricultural turf after January 1, 2012, if the fertilizer was purchased
    30  prior to such effective date; and
    31    4. section two of this act shall take effect July 1, 2013.