BILL NUMBER : S4557

 TITLE OF BILL :
An act to amend the environmental conservation law, in relation to
local authority to enact pesticide ordinance


 PURPOSE OR GENERAL IDEA :
This bill would give a municipality limited authority to protect its
residents beyond the protection afforded them by State law by
authorizing such municipality to regulate and control pesticide use
within its boundaries.  Thus, for example, if a State law were deemed
insufficient in its protection of the health and safety of a certain
group of people, the municipality would have the power to enact
legislation providing for greater protection of these citizens and
their surrounding environment.

 JUSTIFICATION :
A growing body of research indicates that pesticides have contaminated
wells and municipal drinking water systems in New York and other
states.  In addressing this pressing problem, the U.S. Environmental
Protection Agency has recognized the importance of active
participation by local governments in the management and regulation of
pesticides.  (EPA Publication, "Protecting Groundwater:  Pesticides
and Agricultural Practice 1988".)

              

The U.S. Supreme Court has also acknowledged the threat that pesticide
use poses to municipalities by affirming the right of a municipality
to enforce ordinances governing their application. In  WISCONSIN
PUBLIC INTERVENOR V.  MORTIER , (June 21, 1991), the Supreme Court
upheld an ordinance passed by the Town of Casey, Wisconsin, that
required a permit for application of any pesticides to public lands,
to private lands subject to public use or for aerial application to
private lands.  The Supreme Court ruled that the Federal Insecticide,
Fungicide and Rodenticide ACT (FIFRA) did not preempt local ordinances
regulating pesticides.  In interpreting FIFRA and its legislative
history, the court concluded that "FIFRA implies a regulatory
partnership among federal, state and local government" in the area of
pesticide regulation.   WISCONSIN PUBLIC INTERVENOR V. MORTIER , Id.
at 2487.

Local governments and residents in New York have expressed a strong
interest in exercising greater control over the use of pesticides in
their communities and in tailoring the existing laws and regulations
to local needs.  In New York, however, local ordinances that address
the regulation of pesticides are preempted by state law.  In  LONG
ISLAND PEST CONTROL ASSN., V. TOWN OF HUNTINGTON , 72 Misc. 2d 1031
(1973) (Sup Ct, Suffolk County), the court held that ECL 33-0303 (l),
which grants the commissioner exclusive jurisdiction in all matters
pertaining to the distribution, sale, use and transportation of
pesticides, preempted a town ordinance that purported to establish a
Pesticide Control Board with the power to prohibit the sale or use of
certain pesticides within the Town of Huntington.  It is this
"exclusivity" provision that effectively suppresses efforts by
localities to regulate pesticides in their areas.

By amending the "exclusivity" provision of section 33-0303(1), this
bill would provide municipalities with the power to control the use,
and notification of use, of pesticides within their boundaries.  The
Commissioner would still retain jurisdiction in these matters,
although municipalities would be entitled to enact local ordinances
more stringent than the requirements imposed by article 33 or by rules
and regulations promulgated thereunder.

Municipalities' regulatory power over pesticide use would not extend
to control over registration of pesticides, commercial or purchase
permits, or certification of pesticide applicators. Those areas would
continue to lie within the exclusive jurisdiction of the Commissioner.

This bill would also give municipalities the opportunity to establish
pesticide regulations beyond application notification covered by the
current voluntary "opt-in" pesticide notification law.

Several states, including Alaska, California, Illinois, Minnesota and
Wisconsin, currently allow localities to establish pesticide notice
and permit requirements.  With passage of this bill, New York State
would join the ranks of enlightened states that are empowering
localities to address unique concerns relating to the use of
pesticides in their communities.

 PRIOR LEGISLATIVE HISTORY :  A.7609 (1993-94), A.2269 (1995-96),
A.4651 (1997-98), A.892 (1999-2000), A.428-A/S.4831-A (2001-02),
A.5893A (2003-04), A.1569 (2005-06).  A.1145 (2007-2008).

 FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
Immediately.