N.Y. Comp. Codes R. & Regs. tit. 6 § 325.41

Current through Register Vol. 46, No. 45, November 2, 2024

Section 325.41 - County (or city) implementation of ecl 33-1004

The requirements of this section relate only to commercial or residential lawn applications in any county not contained entirely within a city, and any city with a population of one million or more, which has adopted, after public hearing, a local law comprised of the provisions of New York State Environmental Conservation Law, section 33-1004 in their entirety and without exception.

(a) Retail establishments that sell general use pesticides labeled for commercial or residential lawn application uses must post in a conspicuous place as close as possible to each display location of such pesticides an informational sign containing the following statements in letters in at least 16-point bold type against a brightly colored background, except that any such retail establishment located in a city with a population of one million or more must substitute the word "city" for the word "county".

(1) "Pesticides, although useful tools to control pests, may pose certain risks to the applicator and other nontarget often beneficial organisms. To help reduce such risks and to increase pest control effectiveness, State and Federal laws require all applicators to strictly follow all pesticide label instructions and to only use these products on the sites and pests listed on the label.

(2) New York State Environmental Conservation Law (subdivision 1 of section 33-1004) requires individuals who apply lawn care pesticides to their residential properties within this county to post visual notification markers along the perimeter of any treated area of over 100 square feet.

(3) Visual notification markers must be placed to be clearly visible to persons immediately outside the treated perimeter; and

(i) must be posted at least 12 inches above the ground and be at least four inches by five inches in size;

(ii) must be in place before the pesticide is applied and must instruct persons not to enter the property and not to remove the signs for a period of 24 hours; and

(iii) such instructions must be printed in letters at least three eighths of an inch in height.

(4) We recommend that you notify your neighbors prior to the application of pesticides so that they may take precautions to avoid pesticide exposure."

(b) At least 48 hours prior to any commercial lawn application the pesticide applicator or business making such application shall supply written notice to occupants of all dwellings or owners or owners' agents or other persons in a position of authority for multiple dwellings and other occupied structures, on abutting property that is within 150 feet of the site of such application. Such written notice may be provided in any reasonable manner including, but not limited to, mailing, leaving with a responsible adult or in a conspicuous location on the abutting property. Such written notice must be in at least 12- point type and contain at a minimum the following information:

(1) the address of the premises where the application is to take place;

(2) the name, telephone number and pesticide business registration number or pesticide applicator certification identification number of the person applying or supervising the pesticide application;

(3) the specific date of each scheduled application and two alternative dates, if weather or other conditions preclude the original application date;

(4) the product name or names and the United States Environmental Protection Agency registration number or numbers of the pesticide or pesticides to be applied;

(5) a prominent statement that reads: "This notice is to inform you of a pending lawn care pesticide application to a neighboring property. You may wish to take precautions to minimize pesticide exposure to yourself, family members, pets or family possessions. Further information about the product or products being applied, including any warnings that appear on the labels of such pesticide or pesticides that are pertinent to the protection of humans, animals or the environment, can be obtained by calling the National Pesticide Telecommunications Network at 1-800-858-7378 or the New York State Department of Health Center for Environmental Health information line at 1-800-458-1158."

(c) The owner or owner's agent of any multiple dwelling, or other person in a position of authority over such multiple dwelling, must supply the written notice as described in subdivision (b) of this section to the occupants of such multiple dwelling at least 24 hours prior to any proposed commercial lawn application.

(d) The owner or owner's agent of any structure other than a dwelling, or other person in a position of authority over such structure, must post in a conspicuous location accessible and visible to all individuals who may enter the structure the notice described in subdivision (b) of this section at least 24 hours prior to the proposed commercial lawn application.

(e) The prior notification provisions of subdivisions (b), (c) and (d) of this section shall not apply to the following:

(1) the application of anti-microbial pesticides as defined by FIFRA in 7 U.S.C. sections 136(mm) and 136Q(h)(2);

(2) the use of an aerosol product with a directed spray, not including foggers or aerosol products which discharge to a wide area, in containers of 18 fluid ounces or less, when used to protect individuals from an imminent threat from stinging or biting insects such as venomous spiders, bees, wasps and hornets;

(3) the use of nonvolatile insect or rodent bait in a tamper resistant container;

(4) the application of a pesticide classified by the United States Environmental Protection Agency as an exempt material under 40 CFR part 152.25;

(5) the application of a pesticide which the United States Environmental Protection Agency has determined satisfies its reduced risk criteria, including a biopesticide;

(6) the use of boric acid and disodium octaborate tetrahydrate;

(7) the use of horticultural soap and oils that do not contain synthetic pesticides or synergists;

(8) the application of a granular pesticide, where granular pesticide means any ground applied solid pesticide that is not a dust or powder;

(9) the application of a pesticide by direct injection into a plant or the ground;

(10) the spot application of a pesticide, where a spot application means the application of pesticides in a manually pressurized or nonpressurized container of 32 ounces or less to an area of ground less than nine square feet;

(11) the application of pesticides to the ground or turf of any cemetery;

(12) an emergency application of a pesticide when necessary to protect against an imminent threat to human health, provided, however that prior to any such emergency application, the person providing such application shall make a good faith effort to supply the written notice required pursuant to this section and must notify the New York State Commissioner of Health, using a form developed by such commissioner, which shall include minimally:

(i) the name of the person making such application;

(ii) the pesticide business registration number or certified applicator identification number of the person making or supervising such application;

(iii) the street address, site location on the treated property and date of the application;

(iv) the product name and United States Environmental Protection Agency registration number for each pesticide applied; and

(v) the reason for such application.

(f) A person or business making commercial lawn applications may provide one or more options to occupants of dwellings to decline further notices of commercial lawn applications to abutting property for the dwelling unit in which the occupant resides. Any such person or business must retain a record of each declination received and shall make all such records available for inspection upon request by the department. Such person or business must provide a reasonable mechanism for any occupant who issues such a declination to rescind the declination. Such recission shall be effective no later than five business days following receipt by such person or business making commercial lawn applications.

(g) Any person making a residential lawn application to an area of more than 100 square feet shall post visual notification markers along the perimeter of the area where pesticides are to be applied. Such visual notification markers must be at least four inches by five inches in size and text must be in contrasting colors to the background in letters at least three eighths of an inch in height. All such markers must include on the front of the marker:

(1) the phrase "PESTICIDE APPLICATION," "PESTICIDE TREATMENT," or "PESTICIDES APPLIED;"

(2) the date and time of the residential lawn application; and

(3) instructions to not enter the treated portion of the property or remove the markers for 24 hours.

(h) Visual notification marker posting for residential lawn applications. Visual notification markers:

(1) must be posted such that the top of the marker is at least 12 inches above the ground;

(2) must be placed prior to the application and remain posted for a period of not less than 24 hours following the application;

(3) must be placed such that the front of the marker is clearly visible from outside the treated area and placed not more than 50 feet apart along the perimeter of the treated area; and

(4) need not be placed at any portion of the perimeter of the treated area which is rendered impassible by a fence, wall, hedge or similar device or natural topographic feature; provided, however, every treated area of over 100 square feet must be marked by at least two visual notification markers.

(i) On or about January 1st of each year the department shall publish a list of reduced risk lawn care pesticides registered for use in New York State which meet the requirements specified in paragraph (e)(5) of this section.

(j) Any county not contained entirely within a city or any city with a population of one million or more that adopts a local law pursuant to the provisions of this section shall have concurrent authority with the department to enforce this section and ECL 33-1004. All sanctions, which may only be assessed after providing a hearing or opportunity to be heard, shall be as specified in section 71-2907 of the Environmental Conservation Law. Such county or city must report all alleged violations against commercial applicators to the department within 30 days of the county or city's discovery of the violation. Such county or city must also report within 30 days all final dispositions and resolutions of such violations.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 325.41