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New York Assembly Bill Proposes Phase Out of Pesticides on State Property

Beveridge & Diamond, P.C., May 8, 2009

On May 5, 2009, the New York State Assembly passed a bill (A 5848) with the dual purposes of discontinuing the use of pesticides on State property and of developing a non-chemical pest control policy for the State.  The bill applies to any State department, agency, or public benefit corporation (“State Entities”), or any pesticide applicator employed by one of those entities, and would be implemented in three phases. 

The first phase would begin on January 1, 2010, after which State Entities would not be permitted to apply on State property any pesticide classified by the Environmental Protection Agency (“EPA”) as Toxicity Category I or as a known, likely, or probable human carcinogen.  The second phase would begin on January 1, 2011, after which State Entities would not be permitted to apply on State property any pesticide classified by the EPA as Toxicity Category II, as a possible human carcinogen, or as restricted use.  The final phase commences on January 1, 2012, after which State Entities would not be permitted to apply any pesticide on State property, with certain limited exceptions. 

The uses that would still be permitted under the bill include pesticides used to maintain safe drinking water; antimicrobials; pesticides in contained rodent control baits; and pesticides classified as exempted materials by the EPA.

The legislation would also require the State Department of Environmental Conservation to adopt, by January 1, 2010, for every State Entity, a pest management plan intended to effectively manage pest problems in a comprehensive manner.  The plans would address pest population monitoring, least-toxic pesticides for use prior to January 1, 2012, and non-chemical pest control strategies for use after that date.

The State Department of Health would be permitted to grant single-use waivers of otherwise banned pesticides upon the determination by a State Entity that a human health emergency warrants such use.  To grant such a waiver, the Department of Health would need to determine (1) the pest situation poses an immediate threat to human health and (2) no viable alternative exists.  Moreover, any such waiver would be conditioned upon a commitment from every State Entity to address the underlying cause of the pest outbreak to prevent future recurrences.

The bill would allow continued use of pesticides for agricultural research purposes by certain educational institutions and for activities directly related to the 2009 U.S. Open golf championship at Bethpage State Park as well as the use of rotenone and associated resins as a pesticide (or more precisely, as the bill terms it, “piscicide” -- a substance that is poisonous to certain fish) for purposes directly related to reclamation of freshwater water bodies to prepare for the reintroduction of native species.

The bill is based upon similar legislation passed by the City of New York in 2005.  (See New York City Administrative Code § 17-1201, et seq.)  A companion to the Assembly bill is currently before the New York State Senate Environmental Conservation Committee but has not yet been placed on the Committee’s agenda.

Finally, the Assembly passed a second pesticide-related bill (A 1334), which would establish a State Urban Pesticide Board charged with studying the use of pesticides in urban areas.  The board would also make recommendations to the governor and legislature regarding policy reforms and enforcement measures necessary to reduce the risk of pesticide use in urban areas and encourage use of non-toxic methods of pest management.

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For more information about this proposed legislation, please contact Kathy Szmuszkovicz (kszmuszkovicz@bdlaw.com or 202-789-6037) or Dan Krainin (dkrainin@bdlaw.com or 212-702-5417). This alert was prepared with the assistance of Adam Melnick.