Senate Bill S3063

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3063

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 10, 2009
                               ___________

Introduced by Sens. LAVALLE, FLANAGAN -- read twice and ordered printed,
  and  when  printed  to  be committed to the Committee on Environmental
  Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  prohibiting  the  use  of certain toxic chemicals for lawn and grounds
  maintenance

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Legislative findings and intent. The legislature finds and
declares that it is the policy  of  the  state  to  prevent  unnecessary
endangerment  of  human  health  and  environmental quality. In order to
further this mission, the risks posed by the use of toxic chemicals must
be evaluated in light of the benefits derived. The use of  toxic  chemi-
cals  for  the  purely aesthetic purpose of lawn and grounds maintenance
confers no public health or environmental benefit, yet  exposes  people,
often  without  their knowledge or consent, to many chemicals with seri-
ous, deleterious effects on human health and the environment. It is  the
intent  of  the  legislature  to  prevent such unwarranted exposure from
purely aesthetic use.
  S 2. Section 33-1301 of the environmental conservation law is  amended
by adding a new subdivision 12 to read as follows:
  12.  FOR THE FOLLOWING PESTICIDES TO BE USED IN COMMERCIAL LAWN APPLI-
CATION, GOLF COURSE APPLICATION, RESIDENTIAL LAWN  APPLICATION  FOR  THE
PURPOSE  OF  PEST  CONTROL  ON ORNAMENTALS AND TURF OR TO BE USED BY ANY
STATE AGENCY AS DEFINED IN SUBDIVISION FOUR OF SECTION ONE  HUNDRED  ONE
OF  THE  STATE  TECHNOLOGY  LAW  OR  MUNICIPAL CORPORATION AS DEFINED IN
SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW  FOR  THE  PURPOSE  OF
PEST CONTROL ON ORNAMENTALS AND TURF:
  A.  ANY  PESTICIDE THAT IS CLASSIFIED AS A KNOWN, PROBABLE, LIKELY, OR
POSSIBLE HUMAN CARCINOGEN BY THE UNITED STATES ENVIRONMENTAL  PROTECTION

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07103-01-9

              

S. 3063                             2

AGENCY  OR  THAT  THE  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY HAS
CLASSIFIED AS HAVING SUGGESTIVE EVIDENCE OF CARCINOGENICITY;
  B.  ANY  PESTICIDE THAT IS CLASSIFIED AS CATEGORY I OR II ACCORDING TO
THE PRODUCT ACUTE TOXICITY CLASSIFICATION OF THE UNITED STATES  ENVIRON-
MENTAL PROTECTION AGENCY FOR EITHER ORAL, DERMAL OR INHALATION TOXICITY;
  C.  ANY  PESTICIDE  FOR WHICH THERE IS A SPECIFIC, OUTSTANDING REQUEST
FROM THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  FOR  HEALTH  AND
ENVIRONMENTAL STUDIES FOR THE PURPOSE OF REGISTRATION OR REREGISTRATION;
  D.  ANY  PESTICIDE  WHICH THE COMMISSIONER DETERMINES, IN CONSULTATION
WITH THE  COMMISSIONER  OF  HEALTH,  IS  A  LIKELY  ENDOCRINE  DISRUPTER
(INCLUDING, BUT NOT LIMITED TO ESTROGEN MIMICRY OR ANDROGEN INHIBITION),
IMMUNOTOXIN  OR  CHRONIC  NEUROTOXIN, AS SUCH INFORMATION BECOMES AVAIL-
ABLE; AND
  E. ANY PESTICIDE THAT HAS  USE  RESTRICTIONS  IMPOSED  BY  EITHER  THE
COMMISSIONER OR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY DUE TO
THE  FOLLOWING  ENVIRONMENTAL HAZARDS:  GROUNDWATER CONTAMINATION, WILD-
LIFE KILLS, OR THREATS TO ENDANGERED SPECIES.
  S 3. The commissioner of environmental conservation shall restrict the
use of pesticides for the purposes prohibited under  subdivision  12  of
section  33-1301  of  the  environmental  conservation  law, as added by
section two of this act,  through  the  pesticide  registration  program
under  title  7 of article 33 of the environmental conservation law, and
shall promulgate rules and regulations to provide for notice to  commer-
cial applicators and the public of the restrictions on such pesticides.
  S  4.  The second undesignated paragraph of subdivision 1 and subdivi-
sion 3 of section 71-2907 of  the  environmental  conservation  law,  as
amended  by  chapter  285  of  the  laws of 2000, are amended to read as
follows:
  Notwithstanding any provision of law to the contrary, any  person  who
violates  the  provisions of a local law adopted pursuant to subdivision
one of section 33-1004 of this chapter relating to paragraph a  of  such
subdivision, shall be issued a warning for the first violation and shall
be provided seven days to correct such violation; and shall be liable to
the  people  of  the state for a civil penalty not to exceed one hundred
dollars for a second violation, and not  to  exceed  two  hundred  fifty
dollars  for  a subsequent violation, to be assessed by the commissioner
after a hearing  or  opportunity  to  be  heard.    NOTWITHSTANDING  ANY
PROVISION OF LAW TO THE CONTRARY, ANY PERSON ENGAGED IN RESIDENTIAL LAWN
APPLICATION, AS DEFINED IN SUBDIVISION FORTY-EIGHT OF SECTION 33-0101 OF
THIS CHAPTER, WHO VIOLATES SUBDIVISION TWELVE OF SECTION 33-1301 OF THIS
CHAPTER,  SHALL,  FOR  A  FIRST  SUCH VIOLATION, IN LIEU OF A PENALTY BE
ISSUED A WRITTEN WARNING, AND SHALL, FOR  A  SECOND  SUCH  VIOLATION  BE
LIABLE  TO THE PEOPLE OF THE STATE FOR A CIVIL PENALTY NOT TO EXCEED ONE
HUNDRED DOLLARS AND NOT TO EXCEED TWO  HUNDRED  FIFTY  DOLLARS  FOR  ANY
SUBSEQUENT  VIOLATION, SUCH PENALTIES TO BE ASSESSED BY THE COMMISSIONER
AFTER A HEARING OR OPPORTUNITY TO BE HEARD. The commissioner, acting  by
the  attorney  general,  may  bring suit for collection of such assessed
civil penalty in any court of competent jurisdiction. Such civil penalty
may be released or compromised by the commissioner before the matter has
been referred to the attorney general; and where such  matter  has  been
referred  to  the  attorney general, any such penalty may be released or
compromised and any action commenced to recover the same may be  settled
and discontinued by the attorney general with the consent of the commis-
sioner. Any civil penalty assessed by the commissioner under this subdi-
vision   shall   be  reviewable  in  a  proceeding  under  article  [78]
SEVENTY-EIGHT of the civil practice law and rules.

S. 3063                             3

  3. Criminal sanctions. Any person  who,  having  the  culpable  mental
states  defined in subdivision one or two of section 15.05 or in section
20.20 of the penal law, violates any provision of  article  33  of  this
chapter  or  any  rule,  regulation  thereunder  or  commits any offense
described in section 33-1301 of this chapter, except an offense relating
to  the  application  of  a  general  use pesticide shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished  by  a  fine
not  to  exceed  five  thousand  dollars  for each day during which such
violation continues or by imprisonment for a term of not more  than  one
year,  or by both such fine and imprisonment. If the conviction is for a
subsequent offense committed after a first  conviction  of  such  person
under  this subdivision, punishment shall be by a fine not to exceed ten
thousand dollars for each day during which such violation  continues  or
by  imprisonment  for  a term of not more than one year, or by both such
fine and imprisonment. When a violation consists of the  manufacture  or
production  of any prohibited article, each day during which or any part
of which such manufacture or production  is  carried  on  or  continued,
shall  be  deemed  a  separate  violation.  Any  person who violates any
provision of article 33 of this chapter or any rule or regulation there-
under or commits any offense described in section 33-1301 of this  chap-
ter  relating to the use of a general use pesticide shall be guilty of a
violation and, upon conviction thereof, shall be punished by a fine  not
to exceed twenty-five hundred dollars. If the conviction is for a subse-
quent  offense  committed after the first such conviction of such person
under this subdivision, punishment shall be by a fine not to exceed five
thousand dollars. Prosecution hereunder may be conducted by  either  the
attorney  general  or  the  district  attorney  consistent  with section
71-0403 of this article. With respect to violations of  section  33-1004
OR  SUBDIVISION  TWELVE  OF  SECTION  33-1301 of this chapter, penalties
imposed pursuant to this subdivision may  be  assessed  only  against  a
person providing a commercial lawn application.
  S 5. This act shall take effect on the one hundred twentieth day after
it  shall have become a law, except that section three of this act shall
take effect immediately, and  except  that  the  penalty  provisions  of
sections 71-2907 and 71-2909 of the environmental conservation law shall
not  apply  to  violations  of  subdivision 12 of section 33-1301 of the
environmental conservation law, as added by  section  two  of  this  act
occurring  during the one hundred twenty day period following the effec-
tive date of this act.