January 18, 2017No comments
Spring is almost here and with it, our thoughts turn to battling weeds. To wage our battles, we often hire landscapers and, after signing the contract, put our trust in these people to ensure that our lawns stay lush green and dandelion-free. However, what many homeowners do not realize is that the use and application of pesticides by commercial providers is highly regulated by the New York State Department of Environmental Conservation (“DEC”)i. Knowing some of the basic rules can help property owners understand their rights and make sure that the applications are made in a safe and compliant manner.
The first thing you may want to confirm is that your pesticide applicator is properly licensed. The law defines any person providing commercial application of pesticides for hireas a “pesticide business,” whichrequires a New York State registration, renewable every three years.ii In addition, the person must be certified as a “pesticide applicator” after fulfilling certain education and field experience requirements and passing a DEC administered test. The certification requirement does not apply to a residential property owner or tenant applying pesticides on his or her own property or to a non-commercial application of a general use pesticide.iii Thus, if you are treating your own lawn or doing a free favor for a family member, you are exempt. The “certified commercial technician”, which is a step below the certified pesticide applicator, may use pesticides under the direct supervision of the latter.iv An individual who is not a certified applicator or technician, but is engaged in the commercial application of pesticides is considered a “pesticide apprentice.” A certified applicator is required to provide the apprentice with 40 hours of supervised pesticide use experience and 8 hours of instruction before allowing that person to apply general use pesticides.v
Any commercial lawn application requires a written contract which identifies the applicator’s certification number. The contract must specify the approximate date(s) of application, the number of applications, and the total cost for the services to be provided. It must be accompanied by a list of substances to be applied, including brand names and generic names of active ingredients, and copies of any warnings that appear on the product labels, all in a least 12 point type.vi Few homeowners ask to see the product labels and many applicators fail to comply with this rule, facing stiff penalties as a result.
In general, only pesticides which are registered and approved by the DEC may be used in New York State. Federal approval by the US Environmental Protection Agency is not enough. The Cornell University Cooperative Extension maintains a current database of all registered pesticides and their active ingredients.vii Certain organic products, such as garlic oil and lime, are deemed “Minimum Risk Pesticides” and are exempt from the registration requirement. However, if applied commercially, they still require application by a certified applicator.
The yellow flags we often see on lawns are the result of another DEC regulation, which requires markers to be placed on site on the day of the application, warning people not to enter the property and not to remove the markers for a period of at least 24 hours. For certain types of spray applications, applicators are required to provide 48 hours advance written notice to neighbors within 150 feet of the application site and to owners or owners’ agents of multiple family dwellings who, in turn, must notify the occupants. This requirement, called the Neighbor Notification Law, was adopted in 2000 and applies in all counties which have “opted in”, including Nassau, Suffolk and all New York City boroughs.
Pesticide applicators must keep detailed records of their applications, submit annual reports, and maintain these records for inspection for a minimum of three years. Failure to keep such records, as well as copies of customer contracts, can result in heavy administrative fines.
Why all these restrictions? One reason is that pesticide use, while providing many benefits, can also have adverse environmental impacts. Especially on Long Island, where our groundwater is used for drinking, there is a growing concern about contamination from storm water runoff and leaching. According to a 2014 DEC report, 117 pesticide-related chemicals have been detected in the aquifer at various locations since 1997. Approximately half are legacy compounds, no longer or never registered in New York. Still, with over 13,600 pesticides registered in the State, the problem is not going away.viii
Recent efforts to reduce pesticide use or transition to less toxic products have resulted in legislation. For example, Suffolk County’s Phase-Out Law, which became effective in January, 2000, prohibits the use of EPA Category I and II pesticides, carcinogens, and most restricted use pesticides on County property.ix More broadly, a 2010 amendment to the State’s Education Law and the Social Services Law prohibits all schools and day care centers from applying pesticides on any playgrounds, turf or athletic or playing fields. The DEC has issued a guidance document recommending alternatives to pesticide use in grounds management. Emergency applications may be authorized in some circumstances.x
While, as we have seen, commercial applications of pesticides are subject to strict rules, private application on residential properties and farms are generally unregulated. State and local agencies are trying to address the problem of excessive pesticide use through public education efforts and various farm initiatives. For example, in Suffolk County, the Agricultural Stewardship Program works with local growers to adopt better pesticide management practices that protect groundwater quality while maintaining crop yields. Homeowners are encouraged to adopt organic pesticide alternatives through the Be Green Organic Yards NY program.
iEnvironmental Conservation Law (“ECL”) Articles 15, 33 and 71; 6 NYCRR Part 325
iiECL §33-0907; 6 NYCRR § 325.23
iiiECL§33-0101 and §33-0905
iv6 NYCRR §325.7 and §325.9
v6 NYCRR § 325.10
viECL § 33-0905(5); 6 NYCRR §325.40
ixSuffolk County Code, Ch. 647.