Relates to the distribution, sale, offer and exposure of phosphorus compound in household cleaning products and lawn fertilizer.
Ayes (12): Thompson, Oppenheimer, Schneiderman, Parker, Serrano, Perkins, Stewart-Cousins, Foley, Marcellino, Leibell, Young, Padavan
Nays (1): Little
Excused (1): Johnson O
TITLE OF BILL:
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
PURPOSE OF THE BILL:
The purpose of this bill is to limit the amount of phosphorus in dishwashing detergent, and limit the use of lawn fertilizer containing phosphorus, to reduce phosphorus discharges into waterbodies.
SUMMARY OF PROVISIONS:
Section 1 of this bill amends Environmental Conservation Law (ECL) §35-0105(2) to prohibit the sale or distribution of household cleansing products used in dishwashers which contain more than 0.5 percent by weight of a phosphorus compound and to prohibit the use of such products in commercial establishments as of July 1, 2010.
Section 2 of this bill amends Article 17 of the ECL by adding a new Title 21 entitled "Nutrient Runoff." ECL § 17-2101 sets out definitions for "bio-solids," "compost," "fertilizer," "lawn" or "non-agricultural turf' and "phosphorus fertilizer." ECL § 17-2103 prohibits the use of phosphorus fertilizer on lawn or non-agricultural turf, except when: (1) a soil test demonstrates that additional phosphorus is needed for lawn or non-agricultural turf growth, or (2) new lawn or non-agricultural turf is being established. ECL § 17-2103 requires retail stores to comply with the requirements of Agriculture and Markets Law (AML) § 146-g related to the display of phosphorus fertilizer and the posting of educational signs. Title 21 would not impair or supersede the authority of the Commissioner of Agriculture and Markets to regulate fertilizer.
Section 3 of this bill adds a new section 146-g to the AML to require retail stores that sell or offer to sell to consumers specialty fertilizer in which the available phosphate content is greater than 0.67 percent to display such fertilizer separately from non-phosphorus specialty fertilizer, and to post a sign in the location where phosphorus-containing specialty fertilizer is displayed stating that phosphorus runoff poses a threat to water quality, and therefore phosphorus containing fertilizer may only be applied to lawn or non-agricultural turf when a soil test indicates a phosphorus deficiency or new lawn or non-agricultural turf is being established.
Section 4 of this bill provides that the bill would take effect January 1, 2010, provided that: (1) persons may continue to use phosphorus fertilizer on law and non-agricultural turf if the fertilizer was purchased prior to January 1, 2010; (2) the amendments to ECL §35-01 05 related to phosphorus in dishwasher detergent would take effect July 1, 2010; and (3) commercial
establishments may continue to use inventory of dishwasher detergent purchased plior to July 1, 2010 until such inventory is depleted.
ECL §35-01 05(2) prohibits the sale or distribution of household cleansing products other than those used in dishwashers, food and beverage processing equipment and dairy equipment containing more than a trace or incidental concentrations of a phosphorus compound. Commercial use of any household cleansing product except those used in dishwashers, food and beverage processing-equipment, and dairy equipment containing more than a trace or incidental concentration of a phosphorus compound is also prohibited. Household cleansing products used in dishwashers, food and beverage processing equipment and dairy equipment may not contain a phosphorus compound in excess of 8.7 percent by weight expressed as phosphorus.
Article 10 of the Agriculture and Markets Law regulates the labeling and distribution of commercial fertilizer.
This is a new bill.
STATEMENT IN SUPPORT:
Phosphorus from dishwasher detergent and lawn fertilizer has the potential to significantly impact the quality of New York's water resources. This bill, by prohibiting the use of phosphorus in dishwasher detergents and limiting its use in lawn and turf fertilizers, would reduce the level of phosphorus runoff that is discharged to waters of the State.
Phosphorus enters the environment in many ways. Wastewater treatment plants, defective septic systems, agricultural runoff, fertilizer. manure, decomposing leaves, and urban/suburban runoff all contribute phosphorus to the environment. Although phosphorus impacts waterbodies across the State, its impact is greatest on waterbodies located in highly developed areas.
Discharge of excess phosphorus into the state's waters has been linked to excess eutrophication, reducing biodiversity, limiting recreational uses, and increasing the costs of treating drinking water. When water bodies receive an unnaturally high quantity of plant-supporting nutrients like phosphorus, excess plant growth results, often in the form of algae blooms and nuisance weeds. Just one pound of phosphorus has the capacity to grow from 500 to 700 pounds of algae, which can reduce levels of dissolved oxygen in the water, causing fish and shellfish to die. These low oxygen conditions also cause iron, manganese and phosphorus to be released from sediments into the water, deteriorating water quality used for human consumption.
Specific areas of New York have water quality concerns due to excess phosphorus. Total Maximum Daily Loads (TMDLs) for phosphorus have been developed for the New York City watershed, Lake Champlain and Onondaga Lake. Alternative voluntary control measures have been
implemented to address phosphorus input into Chesapeake Bay, including those areas of New York which drain into the Bay. Another 59 waterbodies are known to be impaired by phosphorus.
This proposal would complement requirements placed on all State Pollutant Discharge Elimination System (SPDES) permittees to institute controls to reduce pollutant discharges. Currently, 439 local governments, 607 Concentrated Animal Feeding Operations. and approximately 6,000 construction sites commit significant resources to meet SPDES permit requirements, much of which is to control phosphorus discharges.
Dishwasher detergents, which often enter the environment through wastewater treatment plants and septic systems, may contain up to 9% phosphorus and can account for 9 to 34% of total phosphorus in municipal wastewater. Lawn fertilizer contains up to 3% phosphorus and can account for up to 50% of the soluble phosphorus in stormwater runoff. While automatic dishwasher detergent and lawn fertilizer are but two sources of phosphorus, they are reasonably easy and inexpensive to control.
If enacted, this bill would help local governments reduce phosphorus loads and meet state ambient water quality standards in areas where excessive amounts of phosphorus exist. The cost of phosphorus removal at a wastewater treatment plant varies from $0.96 to $20 per pound. Lower levels of phosphorus in wastewater would require less chemical treatment and reduce the quantity of sludge removed and requiring disposal, resulting in cost savings to municipalities. Removing phosphorus from stormwater can be significantly more expensive for municipalities than removal from wastewater. Preventing phosphorus from getting into stormwater is more cost effective than building control systems.
Over 30 years ago, phosphorus was banned from household cleansing products in New York, with the exception of automatic dishwasher detergents. While at one time dishwashers were not common, today about one in every two households has a dishwasher. Effective phosphorus-free detergents are available to consumers which do not require consumers to sacrifice performance in order to protect the environment. Laboratory testing and consumer experience have shown that phosphorous-free detergents perform satisfactorily and can be successfully substituted for phosphorus-based detergents.
A growing number of states, including Illinois, Indiana, Mary]and, Massachusetts, Minnesota, Ohio, Pennsylvania, Utah, Vermont, Virginia and Washington, have enacted a ban on phosphorous in automatic dishwasher detergent.
A United States Geological Survey study found that concentrations of dissolved phosphorus in runoff from lawns on which phosphorus fertilizer was applied were twice the concentrations of that from lawns on which phosphorus-free or no fertilizer was applied.
Typically, additional phosphorus is not required to maintain healthy turf. Lawns often have high levels of phosphorus, naturally or as a
result of many years of fertilization. Many major brand manufacturers already offer phosphorus-free fertilizer.
This proposal is similar to Minnesota's law, which has been in effect since 2004. A Minnesota Department of Agriculture study on the effectiveness of its fertilizer law found that three years after enactment 97% of stores carried phosphorus-free lawn fertilizer. The study also found no difference in cost between phosphorus-free fertilizer and phosphorus fertilizer. Most significantly, the number of tons of phosphorus contained in lawn fertilizer used in the state decreased by nearly 50% from 2003 to 2006, without any enforcement of the law.
Maine also enacted a similar law on January 1, 2008, focused on restricting the retail sale of phosphorus-containing fertilizer. Florida's Department of Agriculture and Consumer Services has imposed regulations to restrict the quantity of phosphorus in lawn fertilizer beginning July 1, 2009. In New York, legislation has been introduced in Suffolk and Westchester Counties to ban the sale or use of phosphorus fertilizer in efforts to reduce phosphorus discharges.
This bill would take effect January 1, 2010; provided, however that after such date, persons may continue to use phosphorus-containing fertilizer purchased prior to the effective date; the amendments to ECL §35-01 05 would take effect July 1, 2010; and commercial establishments may continue to use inventory of household cleansing products after July 1, 2010 until such inventory is depleted.
STATE OF NEW YORK ________________________________________________________________________ 3780--A 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 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: Section 1. Subdivision 2 of section 35-0105 of the environmental conservation law, as amended by chapter 341 of the laws of 1975, is amended to read as follows: 2.
[No household cleansing product shall be distributed, sold, offered or exposed for sale in this state after December 31, 1971, which shall contain a phosphorus compound in excess of eight and seven-tenths percent by weight expressed as phosphorus.]A. (1) No household cleans- ing product, except those used in dishwashers, food and beverage proc- essing equipment, and dairy equipment, shall be distributed, sold, offered or exposed for sale in this state [on or after June 1, 1973,]which [shall contain]CONTAINS a phosphorus compound other than such trace [or incidental]concentrations as may be authorized by the commis- sioner by regulation. (2) NO HOUSEHOLD CLEANSING PRODUCT USED IN DISHWASHERS SHALL BE DISTRIBUTED, SOLD, OFFERED OR EXPOSED FOR SALE IN THIS STATE WHICH CONTAINS A PHOSPHORUS COMPOUND IN EXCESS OF FIVE-TENTHS PERCENT BY WEIGHT EXPRESSED AS PHOSPHORUS. (3) NO HOUSEHOLD CLEANSING PRODUCT USED IN FOOD AND BEVERAGE PROCESS- ING EQUIPMENT AND DAIRY EQUIPMENT SHALL BE DISTRIBUTED, SOLD, OFFERED OREXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07812-09-0 S. 3780--A 2
EXPOSED FOR SALE IN THIS STATE WHICH CONTAINS A PHOSPHORUS COMPOUND IN EXCESS OF EIGHT AND SEVEN-TENTHS PERCENT BY WEIGHT EXPRESSED AS PHOSPHO- RUS. B. No owner, occupant, or person in control of a commercial establish- ment shall possess or use or authorize any other person by way of service contract or other arrangement to possess or use in this state any household cleansing product except those used in dishwashers, food and beverage processing equipment, and dairy equipment, on or after January 1, 1976 which shall contain a phosphorus compound other than in such trace or incidental concentrations as may be authorized by the commissioner by regulation. S 2. Paragraph b of subdivision 2 of section 35-0105 of the environ- mental conservation law, as amended by section one of this act, is amended to read as follows: b. No owner, occupant, or person in control of a commercial establish- ment shall possess or use or authorize any other person by way of service contract or other arrangement to possess or use in this state any household cleansing product
[except those used in dishwashers, food and beverage processing equipment, and dairy equipment, on or after January 1, 1976]which [shall contain]CONTAINS a phosphorus compound [other than in such trace or incidental concentrations as may be author- ized by the commissioner by regulation]IN EXCESS OF THE AMOUNT ALLOWED FOR SUCH PRODUCT UNDER PARAGRAPH A OF THIS SUBDIVISION. S 3. Article 17 of the environmental conservation law is amended by adding a new title 21 to read as follows: TITLE 21 NUTRIENT RUNOFF SECTION 17-2101. DEFINITIONS. 17-2103. SALE OR USE OF PHOSPHORUS FERTILIZER RESTRICTED. 17-2105. LOCAL FERTILIZER REGULATION. S 17-2101. DEFINITIONS. AS USED IN THIS TITLE: 1. "BIO-SOLIDS" MEANS DE-WATERED TREATMENT RESIDUALS THAT MEET FEDERAL AND STATE REGULATIONS AND LOCAL RULES FOR REUSE CONCERNING METALS, PATHOGENS, AND VECTOR ATTRACTION REDUCTION. 2. "COMPOST" MEANS THE BIOLOGICALLY STABLE HUMUS-LIKE MATERIAL DERIVED FROM COMPOSTING OR THE AEROBIC, THERMOPHILIC DECOMPOSITION OF ORGANIC MATTER. 3. "FERTILIZER" MEANS THE SAME AS "SPECIALTY FERTILIZER" AS DEFINED IN SECTION ONE HUNDRED FORTY-THREE OF THE AGRICULTURE AND MARKETS LAW. 4. "LAWN" OR "NON-AGRICULTURAL TURF" MEANS ANY NON-CROP LAND AREA THAT IS COVERED BY ANY GRASS SPECIES. LAWN OR NON-AGRICULTURAL TURF DOES NOT MEAN FLOWER OR VEGETABLE GARDENS, PASTURE, HAYLAND, TREES, SHRUBS, TURF GROWN ON TURF FARMS, OR ANY FORM OF AGRICULTURAL PRODUCTION. 5. "PHOSPHORUS FERTILIZER" MEANS FERTILIZER IN WHICH THE AVAILABLE PHOSPHATE (P205) CONTENT IS GREATER THAN 0.67 PERCENT BY WEIGHT. PHOS- PHORUS FERTILIZER DOES NOT MEAN COMPOST OR BIO-SOLIDS. S 17-2103. SALE OR USE OF PHOSPHORUS FERTILIZER RESTRICTED. 1. NO PERSON SHALL APPLY OR AUTHORIZE ANY PERSON BY WAY OF SERVICE CONTRACT OR OTHER ARRANGEMENT TO APPLY IN THIS STATE ANY PHOSPHORUS FERTILIZER ON LAWN OR NON-AGRICULTURAL TURF, EXCEPT WHEN: (A) A SOIL TEST INDICATES THAT ADDITIONAL PHOSPHORUS IS NEEDED FOR GROWTH OF THAT LAWN OR NON-AGRICULTURAL TURF; OR (B) THE PHOSPHORUS FERTILIZER IS USED FOR NEWLY ESTABLISHED LAWN OR NON-AGRICULTURAL TURF DURING THE FIRST GROWING SEASON.S. 3780--A 3
2. ANY RETAILER SELLING OR OFFERING FOR SALE PHOSPHORUS FERTILIZER FOR USE ON LAWN OR NON-AGRICULTURAL TURF SHALL COMPLY WITH THE RETAIL SALE REQUIREMENTS IN SECTION ONE HUNDRED FORTY-SIX-G OF THE AGRICULTURE AND MARKETS LAW RELATED TO DISPLAY OF PHOSPHORUS FERTILIZER AND THE POSTING OF EDUCATIONAL SIGNS. 3. NO PERSON SHALL APPLY FERTILIZER TO: (A) LAWN OR NON-AGRICULTURAL TURF BETWEEN DECEMBER FIRST AND APRIL FIRST, ANNUALLY; (B) ANY IMPERVIOUS SURFACE INCLUDING PARKING LOTS, ROADWAYS, AND SIDE- WALKS. IF SUCH APPLICATION OCCURS, THE FERTILIZER MUST BE IMMEDIATELY CONTAINED AND EITHER LEGALLY APPLIED TO LAWN OR NON-AGRICULTURAL TURF OR PLACED IN AN APPROPRIATE CONTAINER; OR (C) ANY LAWN OR NON-AGRICULTURAL TURF ON ANY REAL PROPERTY WITHIN TWENTY FEET OF ANY SURFACE WATER, EXCEPT THAT THIS RESTRICTION SHALL NOT APPLY WHERE A CONTINUOUS NATURAL VEGETATIVE BUFFER, AT LEAST TEN FEET WIDE SEPARATES AN AREA OF LAWN OR NON-AGRICULTURAL TURF AND SURFACE WATER, PROVIDED, HOWEVER, SUCH APPLICATION SHALL BE PERMITTED FOR NEWLY ESTABLISHED LAWN OR NON-AGRICULTURAL TURF DURING THE FIRST GROWING SEASON. 4. NOTHING IN THIS TITLE SHALL IMPAIR OR SUPERSEDE THE AUTHORITY OF THE COMMISSIONER OF AGRICULTURE AND MARKETS TO REGULATE FERTILIZER PURSUANT TO ARTICLE TEN OF THE AGRICULTURE AND MARKETS LAW. S 17-2105. LOCAL FERTILIZER REGULATION. A LOCAL GOVERNMENT MAY ENACT MORE STRINGENT STANDARDS THAN ESTABLISHED IN THIS TITLE, PROVIDED, HOWEVER, THAT ANY LOCAL GOVERNMENT THAT ENACTS SUCH STANDARDS AFTER JANUARY 1, 2011 MUST DEMONSTRATE TO THE DEPARTMENT PRIOR TO ENACTMENT THAT ADDITIONAL OR MORE STRINGENT STANDARDS ARE NECESSARY TO ADDRESS LOCAL WATER QUALITY CONDITIONS. S 4. The environmental conservation law is amended by adding a new section 71-1945 to read as follows: S 71-1945. ENFORCEMENT OF TITLE 21 OF ARTICLE 17. 1. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ANY PERSON WHO VIOLATES ANY PROVISION OF TITLE 21 OF ARTICLE 17 OF THIS CHAPTER OR ANY RULE, REGULATION OR ORDER ISSUED THEREUNDER SHALL BE LIABLE TO THE PEOPLE OF THE STATE FOR A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION, AND NOT TO EXCEED ONE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION, TO BE ASSESSED BY THE COMMISSIONER AFTER A HEARING OR OPPORTUNITY TO BE HEARD. 2. ANY OWNER OR OWNER'S AGENT, OR OCCUPANT OF A HOUSEHOLD WHO VIOLATES ANY PROVISION OF TITLE 21 OF ARTICLE 17 OF THIS CHAPTER OR ANY RULE, REGULATION OR ORDER ISSUED THEREUNDER SHALL, FOR A FIRST VIOLATION BE ISSUED A WRITTEN WARNING AND BE PROVIDED EDUCATIONAL MATERIALS. UPON A SECOND VIOLATION, THE OWNER OR OWNER'S AGENT, OR OCCUPANT OF A HOUSEHOLD SHALL BE LIABLE TO THE PEOPLE OF THE STATE FOR A CIVIL PENALTY NOT TO EXCEED ONE HUNDRED DOLLARS, AND FOR ANY SUBSEQUENT VIOLATIONS SHALL BE LIABLE TO THE PEOPLE OF THE STATE FOR A CIVIL PENALTY NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS. NO OWNER OR OWNER'S AGENT OF A HOUSEHOLD SHALL BE HELD LIABLE FOR ANY VIOLATION BY AN OCCUPANT. SUCH PENALTIES MAY BE ASSESSED BY THE COMMISSIONER AFTER A HEARING OR OPPORTUNITY TO BE HEARD. S 5. The title heading of title 19 of article 71 of the environmental conservation law, as amended by chapter 400 of the laws of 1973, is amended to read as follows: ENFORCEMENT OF TITLES 1 THROUGH 11 AND 15 THROUGH
21 INCLUSIVE OF ARTICLE 17 AND SPILLS OF BULK LIQUIDSS. 3780--A 4
S 6. The agriculture and markets law is amended by adding a new section 146-g to read as follows: S 146-G. RETAIL SALE. ANY RETAILER WHO SELLS OR OFFERS FOR SALE TO CONSUMERS SPECIALTY FERTILIZER IN WHICH THE AVAILABLE PHOSPHATE (P205) CONTENT IS GREATER THAN 0.67 PERCENT, SHALL: (A) DISPLAY SUCH PHOSPHORUS-CONTAINING SPECIALTY FERTILIZER SEPARATELY FROM NON-PHOSPHORUS SPECIALTY FERTILIZER; AND (B) POST IN THE LOCATION WHERE PHOSPHORUS-CONTAINING SPECIALTY FERTI- LIZER IS DISPLAYED A CLEARLY VISIBLE SIGN WHICH IS AT LEAST EIGHT AND ONE-HALF INCHES BY ELEVEN INCHES IN SIZE AND STATES THAT: "PHOSPHORUS RUNOFF POSES A THREAT TO WATER QUALITY. THEREFORE, UNDER NEW YORK LAW, PHOSPHORUS-CONTAINING FERTILIZER MAY ONLY BE APPLIED TO LAWN OR NON-AGRICULTURAL TURF WHEN: (1) A SOIL TEST INDICATES THAT ADDITIONAL PHOSPHORUS IS NEEDED FOR GROWTH OF THAT LAWN OR NON-AGRICULTURAL TURF; OR (2) THE FERTILIZER IS USED FOR NEWLY ESTABLISHED LAWN OR NON-AGRICUL- TURAL TURF DURING THE FIRST GROWING SEASON." S 7. This act shall take effect on the thirtieth day after it shall have become a law, provided, however, that: 1. sections three, four, five and six of this act shall take effect January 1, 2011; 2. persons may continue to use phosphorus fertilizer on lawn and non- agricultural turf after January 1, 2011, if the fertilizer was purchased prior to such effective date; and 3. section two of this act shall take effect July 1, 2013.