[HISTORY: Adopted by the Suffolk County Legislature as indicated
in article histories. Amendments noted where applicable. Uncodified
sections of local laws amending these provisions are included at the
end of this chapter.]
[Adopted 11-19-2002 by L.L. No. 24-2002 (Ch. 289, Art. I,
of the 1985 Code)]
A.
This Legislature hereby finds and determines that ironite is a fertilizer
produced from the mine tailings of a proposed Superfund site in Humbolt,
Arizona, and sold to consumers as a lawn and garden fertilizer at
stores such as WalMart, Home Depot, Lowe's, and Target. Testing
by government agencies has found levels of arsenic high enough to
classify the fertilizer as a hazardous waste. Although federal law
requires that hazardous waste be properly disposed of in regulated
landfills, a legal loophole called the "Bevill Exemption" excludes
the mining industry.
B.
This Legislature further finds and determines that hazardous waste
can follow from the industry to the farm through a loophole that allows
steel companies to send toxic-laden ash, i.e., technically called
"K061 Waste," from their smokestacks to companies that make zinc fertilizers,
without testing it or even recording where it is going; i.e., this
material can literally flow from the smokestack directly to the fertilizer
sack and from there to the crop field.
C.
This Legislature finds that any company sending any wastes to a fertilizer
company for recycling need only ensure that the material would pass
the Environmental Protection Agency's (EPA) Land Disposal Rule
(LDR) regulations written for the storage of treated toxic wastes
in lined and highly regulated hazardous waste landfills; that if the
waste is safe enough to be stored in these landfills, then it is considered
safe enough to be recycled into fertilizer; that the generating company
is not required to test its wastes beyond the LDR standards, nor is
it required to document what eventually happens to it.
D.
This Legislature determines that the third recycling loophole allows
companies to transfer their wastes directly to farms if the farms
can treat the waste on their land and render the material harmless
and that this land treatment process is more highly regulated than
the previous two loopholes and was originally designed to allow beneficial
use of relatively benign waste.
E.
This Legislature also finds that industrial waste materials are often
used in fertilizers as a source of zinc and other micronutrient metals;
that current information indicates that only a relatively small percentage
of fertilizer is manufactured using industrial wastes as ingredients;
and that hazardous wastes are used as ingredients in only a small
portion of waste-derived fertilizers. Some fertilizers and soil amendments
that are not derived from waste materials can nevertheless contain
measurable levels of heavy metals such as lead, arsenic, and cadmium.
F.
This Legislature further finds that the EPA's longstanding policy
encourages the beneficial reuse and recycling of industrial wastes,
including hazardous wastes, when such wastes can be used as safe and
effective substitutes for virgin raw materials. Although the EPA is
examining whether some fertilizers or soil conditioners may contain
potentially harmful levels of contaminants, the Agency believes that
some wastes can be used beneficially in fertilizers when properly
manufactured and applied.
G.
This Legislature also determines that concerns have been raised regarding
the use of certain wastes in the manufacture of agricultural fertilizers
and soil amendments, and the potential for ecological or human health
risks, as well as crop damage, when such fertilizers are applied to
farmlands. In conjunction with state governments, the EPA has launched
a major effort to assess whether or not contaminants in fertilizers
may be causing harmful effects, and whether additional government
actions to safeguard public health and the environment may be warranted.
H.
This Legislature further determines that, for fertilizers that contain
hazardous waste, EPA standards specify limits on the levels of heavy
metals and other toxic compounds that may be contained in the fertilizer
products; that these concentration limits were based on the best demonstrated
available technology for reducing the toxicity and mobility of the
hazardous constituents; and that fertilizer made from one specific
type of hazardous waste air pollution control dust generated during
steel manufacturing is not subject to those concentration limits.
This exemption was based on a 1988 finding by the EPA that the composition
of this particular waste is comparable to the materials that would
otherwise be used to make this type of fertilizer and that its typical
use was not harmful. All other fertilizers that contain hazardous
wastes are, however, subject to the contaminant concentration limits
established by the EPA.
I.
This Legislature also finds and determines that for food-chain crops,
farming can occur on land where hazardous constituents are applied
as long as the agricultural producer receives a permit from the EPA
Regional Administrator based on the agricultural producer demonstrating
that there is no substantial risk to human health caused by the growth
of such crops.
J.
This Legislature also finds that, unless prohibited by other state
or local laws, agricultural producers can dispose of solid, nonhazardous
agricultural wastes (including manure and crop residues returned to
the soil as fertilizers or soil conditioners, and solid or dissolved
materials in irrigation return flows) on their own property.
K.
Therefore, the purpose of this article is to prohibit the sale of
ironite fertilizer within the County of Suffolk.
As used in this article, the following terms shall have the
meanings indicated:
A fertilizer produced from the tail minings of a proposed
Superfund site in Humbolt, Arizona, and sold to consumers as a lawn
and garden fertilizer.
Individuals; natural persons; partnerships; joint ventures;
societies; associations; clubs; corporations; unincorporated groups
of any members; officers, directors or stockholders or any kind of
personal representative thereof, in any capacity, acting for himself
or for any other person, under either personal appointment or pursuant
to law.
This article shall apply to purchases or sales occurring on
or after the effective date of this article.
This article shall be null and void on the day that statewide
or federal legislation goes into effect, incorporating either the
same or substantially similar provisions as are contained in this
article, or in the event that a pertinent state or federal administrative
agency issues and promulgates regulations preempting such action by
the County of Suffolk. The County Legislature may determine via mere
resolution whether or not identical or substantially similar statewide
legislation has been enacted for the purposes of triggering the provisions
of this section.
[Adopted 12-18-2007 by L.L. No. 41-2007 (Ch. 289, Art. II,
of the 1985 Code)]
A.
This Legislature hereby finds that overapplication and/or misuse
of fertilizer products has led to degradation in the local water quality
and has harmed groundwater, drinking water, and wetlands and surface
waters within the County of Suffolk.
B.
This Legislature further finds that excess nitrogen in drinking water
can threaten human health, as fertilizer leachate has contaminated
groundwater and groundwater is the sole source of drinking water on
Long Island.
C.
This Legislature also finds that nitrogen contamination trends in
groundwater are worsening, in that 17% of Upper Glacial public water
supply wells in the Upper Glacial Aquifer now exceed six milligrams/liter
(mg/l) nitrogen (degraded), an increase from 9% in 1987.
D.
This Legislature further finds that, in 2006, 15 community public
water supply wells, and nearly 10% of private wells in Suffolk County,
were found to violate the 10 mg/l maximum contaminant level (MCL)
set for nitrates to ensure safe drinking water.
E.
This Legislature further finds that various factors may cause excess
leaching of fertilizer nitrogen, including use of quick-release fertilizer,
percentage of nitrogen in fertilizer, labeling which results in excess
application rates of fertilizer, organic/inorganic/polymer formulations,
soil types, lawn type and condition, timing of application, and total
nitrogen applied per year.
F.
This Legislature further finds that fertilizers are responsible for
approximately 50% of the total nitrogen loads to groundwater in the
Peconic Estuary and throughout medium-density residential land uses
in Suffolk County.
G.
This Legislature further finds that groundwater is, by far, the largest
local source of nitrogen to estuaries, and nitrogen loadings to the
Peconic Estuary have increased by more than 200% since the 1950s,
due to fertilizers and sanitary systems.
H.
This Legislature also determines that excess nitrogen inputs result
in depressed dissolved oxygen (hypoxia), harming aquatic life, causing
excessive algal blooms, and diminishing water clarity to further impair
habitat for aquatic plants.
I.
This Legislature further finds that numerous Suffolk County water
bodies have been added to New York State's list of impaired water
bodies due to nitrogen over-enrichment, including the sensitive, westernmost
areas of the Peconic Estuary, and eelgrass, a critical habitat, has
substantially disappeared west of Shelter Island in the Peconics.
J.
This Legislature further finds that more than half of Long Island
Sound suffers from hypoxia every summer, that several areas of the
South Shore Estuary Reserve are also seeing effects of eutrophication,
and that several fish kills have been reported throughout Suffolk
County due to low dissolved oxygen.
K.
This Legislature further finds that fertilizer should not be applied
to turf when ground is likely to be frozen, or when grass is not actively
growing, so that fertilizer use on turf should be banned in cold-weather
months, and public education and outreach should be utilized to prevent
application during periods of summer dormancy.
L.
This Legislature also determines that the Homestead A-Syst Task Force
(Suffolk County Resolution No. 544-2006) sought to address this problem
by establishing public education programs and holding public hearings,
and that various other educational programs exist through agencies
and estuary programs, but these efforts can be coordinated, refined,
and expanded.
M.
This Legislature further finds that current information regarding
the use of fertilizers is confusing to consumers and leads to the
misapplication of fertilizer and contamination of groundwater, drinking
water, and estuaries.
N.
This Legislature also determines that the quality of our water should
be considered a higher priority than the aesthetics of lawns, and
that high-maintenance lawns require more nitrogen and are more likely
to leach excess nitrogen, so that high-maintenance lawns should be
discouraged.
O.
This Legislature also determines that Suffolk County has already
begun implementing programs to reduce nitrogen pollution, and those
programs should continue to be refined and formalized as County policy,
to serve as a model for residences, the private sector, and other
levels of government.
P.
This Legislature also determines that, based on the Peconic Estuary
Program Comprehensive Conservation and Management Plan, a goal of
10% to 25% fertilizer reduction is a reasonable initial target for
existing residential fertilizing programs.
Q.
Therefore, the purpose of this article is to cause a reduction in
the amount of nitrogen released into the groundwater by eliminating
the use of fertilizers where practicable on lawns and on County property,
decreasing the overall use of fertilizer and optimizing the use of
fertilizers when they are applied.
As used in this article, the following terms shall have the
meanings indicated:
The Commissioner of the Suffolk County Department of Environment
and Energy.
The Suffolk County Department of Environment and Energy.
A store or person located within Suffolk County who or which
sells or offers fertilizer for sale.
Any organic or inorganic material of natural or synthetic
origin which is added to soil, soil mixtures, or solution to supplement
nutrients and is claimed to contain one or more essential plant nutrients.
The term "fertilizer" does not include unmanipulated animal and vegetable
manure and agricultural liming materials used to reduce soil acidity.
Any individual, firm, partnership, corporation, company,
society, association, or any organized group of persons, whether incorporated
or not.
Lakes, bays, sounds, ponds, impounding reservoirs, perennial
streams and springs, rivers, creeks, estuaries, marshes, inlets, canals,
the Atlantic Ocean within the territorial limits of New York State,
and all other perennial bodies of surface water, natural or artificial,
inland or coastal, fresh or salt, public or private, but shall not
include artificial ponds.
[Added 2-3-2009 by L.L. No. 5-2009]
Any area of earth principally vegetated by grass.
[Amended 2-23-2009 by L.L. No. 5-2009]
A.
Fertilizer shall not be applied to County-owned real property, except as authorized under § 459-14 of this article.
B.
Fertilizer shall not be applied to any turf on any non-County-owned real property by any person between November 1 and April 1 of every year, except as authorized by § 459-14 of this article.
C.
Fertilizer shall not be applied to any County-owned property, nor
to any turf on any non-County-owned real property, within 20 feet
of any regulated surface water, except that this restriction shall
not apply where a continuous natural vegetative buffer, at least 10
feet wide, separates a turf area and regulated surface water.
A.
An establishment shall conspicuously post a sign and informational
brochures on fertilizers and turf management, which shall be furnished
by the Department, within 10 feet of the establishment's fertilizer
display area. If an establishment has more than one fertilizer display
area, and the display areas are not substantially contiguous, then
signs and brochures must be displayed within 10 feet of each display
area.
B.
The Department shall prepare a report, no later than July 1 of each
year, which presents information on fertilizers sold in the preceding
year. This report will be based on records available from the New
York State Department of Agriculture and Markets. If the Commissioner
deems that additional information is needed, the Commissioner is authorized
to promulgate rules and regulations necessary to implement a Suffolk
County reporting system on fertilizer sales for establishments.
A.
The Department shall work in conjunction with other persons and organizations
to expand educational programs already in place regarding the risks
of fertilizers for retailers, consumers and landscapers. These organizations
include, but are not limited to:
(1)
Cornell Cooperative Extension (CCE).
(2)
Grassroots Healthy Lawn Program (GHLP).
(3)
Neighborhood Network.
(4)
Homestead A-Syst Task Force, as created by Suffolk County Resolution
No. 544-2006.
(5)
United States Environmental Protection Agency (USEPA).
(6)
Nassau Suffolk Landscape Gardeners Association (NSLGA).
(7)
Long Island Sound Study.
(8)
South Shore Estuary Reserve.
(9)
Peconic Estuary Program.
(10)
Turfgrass Science Program, Cornell University.
(11)
Cornell University New York State Integrated Pest Management
(NYSIPM) Program.
(12)
Suffolk County Water Authority (SCWA).
(13)
Such other organizations as deemed appropriate by the Commissioner
of the Department.
B.
The Department, in consultation with the Suffolk County Department
of Health Services, shall develop, within one year of the effective
date of this article, information regarding the risks of fertilizer
related to turf and suggested guidelines to delineate which types
of fertilizers, fertilizer application methods and best management
practices support healthy vegetation while posing the least harm to
the environment. Best management practices may include such practices
as low-maintenance lawns and landscaping, proper mowing, and modification
of fertilizer application rates or times. In developing the guidelines,
the Department shall consider factors which may contribute to excessive
and unnecessary degradation of local water quality by nitrogen pollution,
including harm to groundwater, drinking water, wetlands and surface
waters. Factors considered shall include, but not be limited to:
(1)
Nitrogen content and formulation of fertilizers;
(2)
Rate of nitrogen release and leaching potential;
(3)
Soil type, soil conditions, land use, lawn age, and lawn condition;
(4)
Weather or temperature conditions;
(5)
Impact on aquatic organisms and vegetation;
(6)
Definitions of fertilizer label terminology;
(7)
Information about proper application techniques, including, but not
limited to, timing, total nitrogen per application and total cumulative
nitrogen applied per year;
(8)
Impact on sensitive groundwater and surface water; and
(9)
Such other factors as deemed appropriate by the Suffolk County Department
of Environment and Energy.
C.
The Department shall establish, within one year of the effective date of this article, an interactive website concerning turf and fertilizer-related issues. The website shall present educational materials on fertilizers and County law and policy, including advisory signage and brochures, the prohibition on usage of fertilizers on turf from November 1 to April 1, landscaper training, and the guidelines developed pursuant to § 459-11B. The website may also include a simple computer-based method of determining the amount of fertilizer required for a specific site. Links to other related educational resources shall also be provided.
A.
The Department shall prepare an annual report summarizing information received pursuant to § 459-10 of this article and the report shall show, at a minimum, the total quantities of fertilizer sold in Suffolk County. The report shall also analyze this data with respect to factors deemed to be significant by the Department, which may include, but not be limited to, nitrogen and phosphorus content of fertilizers, slow-release versus quick-release fertilizers, and organic content of fertilizers. This report shall be completed no later than July 1 of the given year, shall be filed with the Clerk of the Legislature within 15 days of completion, and shall be made available to the public.
B.
The Department shall also prepare a report, every five years, beginning
in 2014, which evaluates the effectiveness of this article, in terms
of fertilizer sales information, environmental impact data, and any
other information the Commissioner deems necessary. This report shall
be completed no later than September 30 of the given year, shall be
filed with the Clerk of the Legislature within 15 days of completion,
and shall be made available to the public.
The Department, in consultation with the Suffolk County Department of Health Services, shall develop, within one year of the effective date of this article, the signs and brochures referred to in § 459-10A. The signs and brochures shall be written in a clear and simple manner and shall contain the suggested guidelines referred to in § 459-11B.
A.
Section 459-9 of this article shall not apply to land used in farm operations, as defined in New York Agriculture and Markets Law § 301.
B.
Section 459-9A of this article shall not apply to:
(1)
Golf courses; provided, however, that only the minimum amount of
slow-release and organic fertilizer shall be used that is needed to
sustain healthy turf on golf courses, and that fertilizer application
rates shall be limited to three pounds of nitrogen per 1,000 square
feet per year, over the golf course as a whole, consistent with the
organic maintenance plan adopted via Suffolk County Resolution No.
608-1998.
(2)
The Suffolk County Farm; provided, however, that the Suffolk County
Farm shall be subject to a goal of nitrogen reduction. The Suffolk
County Departments of Planning and Health Services, in consultation
with the Department, shall establish strategies to achieve this goal.
Recommendations made in the following document shall be considered
in developing the strategies: A Strategy to Develop and Implement
the Suffolk County Agricultural Stewardship Program — A Report
to the Agricultural Environmental Management Task Force for Nitrogen
and Pesticides Load Reduction — Final Report (May 26, 2004).
(3)
Athletic fields; provided, however, that the County department with
jurisdiction over the fields shall develop and comply with an annual
plan containing best management practices to reduce use of fertilizer
and avoid fertilizer leachate. The plan shall be submitted to the
Department for review and approval.
(4)
Newly seeded or planted landscapes and newly seeded or newly sodded
areas.
Upon written application to the Department by a person utilizing County-owned property, a waiver of the prohibition in § 459-9A of this article may be granted upon such terms and conditions as deemed appropriate at the Commissioner's sole discretion. The decision to grant a waiver shall be based upon the following factors:
A.
Whether the waiver application is in general conformity with this
article;
B.
Whether the uses of groundwater, surface water and drinking water
supplies will be impaired;
C.
Whether the application conforms to a comprehensive management plan
and/or well-accepted best management practices; and
D.
Whether the proposed use can be modified so that the project will
not require a waiver.
The Department, in consultation with the Suffolk County Department
of Health Services and Suffolk County Office of Consumer Affairs,
shall issue and promulgate such rules, regulations and standards as
deemed necessary and appropriate to carry out the provisions of this
article.
This article shall be null and void on the day that statewide
or federal legislation goes into effect, incorporating either the
same or substantially similar provisions as are contained in this
article, or in the event that a pertinent state or federal administrative
agency issues and promulgates regulations preempting such action by
the County of Suffolk. The County Legislature may determine via mere
resolution whether or not identical or substantially similar statewide
legislation has been enacted for the purposes of triggering the provisions
of this section.
