Relates to phosphorus in household cleansing products and lawn fertilizer

Summary of provisions

Section 1 of this bill would amend Environmental Conservation Law (ECL) § 35-0105(2) to prohibit the sale or distribution of household cleansing products used in dishwashers, except for commercial establishments, which contain more than 0.5 percent by weight of a phosphorus compound as of July 1, 2010.

Section 2 of this bill would amend ECL § 35-0105(2)(b) to prohibit the sale or distribution of household cleansing products used in dishwashers at commercial establishments 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, 2013.

Section 3 of this bill would amend ECL Article 17 by adding a new Title 21 entitled "Nutrient Runoff" A new ECL § 17-2101 would contain definitions for "compost," "fertilizer," "lawn" or "non-agricultural turf' and "phosphorus fertilizer." A new ECL §17-2103 would prohibit the application 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. A new 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. It would also prohibit the application of fertilizer on lawn or non-agricultural turf: between December first and April first; on impervious surfaces; and within twenty feet of surface water except where there is a continuous vegetative buffer of at least ten feet from the water body, and except that, where a spreader guard, deflector shield or drop spreader is used, the application would be prohibited within three feet of any surface water. The set backs horn surface water would not apply when establishing a new lawn. This new Title 21 would not impair or supersede the authority of the Commissioner of

Agriculture and Markets under Articles 10 and 25-AA of the AML. ECL §17-2105 would allow local governments to adopt more stringent standards for non-agricultural fertilizer applications after demonstrating to the Department that such action is necessary to address local water quality conditions.

Section 4 of this bill would add a new ECL § 17-1945 to provide for the enforcement of Title 21 of Article 17. This new section would provide that any owner, owner's agent or occupant of a household who violates any provision of Title 21 would receive a written warning and educational materials for a first violation, be liable for a civil penalty not to exceed $100 for a second violation, and be liable for a civil penalty not to exceed $250 for third and subsequent violations. Any other person who violates any provision of Title 21 would be liable for a civil penalty not to exceed $500 for a first violation, and not to exceed $1,000 for each subsequent violation.

Section 5 of this bill makes a conforming amendment to the heading of Title 19 of Article 71 of the ECL.

Section 6 of this bill would add a new section AML § 146-g 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 7 of this bill provides that the bill would take effect on the thirtieth day after it shall have become a law, except that: (1) retailers would have 60 days from the effective date to sell-through its inventory of high phosphorus household dishwasher detergent; (2) sections three, four, five and six of the bill would take effect January 1, 2012; (3) persons would be allowed to continue to use phosphorus fertilizer on law and non-agricultural turf if the fertilizer was purchased prior to January 1, 2012; and (4) the amendments to ECL § 35-0105 related to phosphorus in dishwasher detergent would take effect July 1, 2013.

Existing law

ECL § 35-0105(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 of8.7 percent by weight expressed as phosphorus.

AML Article 10 regulates the labeling and distribution of commercial fertilizer.

Legislative history

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 water bodies across the State, its impact is greatest on water bodies 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.

In the most recent New York State Water Quality Assessment Report, nutrients, primarily phosphorous, were cited as the pollutant affecting the greatest number of lake acres, the second most number of river miles and fou11h most number of estuary acres. Furthermore, in terms of the impact on the quality of waters in the State, phosphorus is one of the most significant of all pollutants. The impact of phosphorus is particularly significant in lakes and reservoirs: over half (5.3%) of all the lake acres in the state have water quality impacts for which phosphorus is a contributing cause.

Specific areas of New York have water quality concerns due to excess phosphorus with over] 00 watersheds containing waters impaired by phosphorus. Total Maximum Daily Loads (TMDLs) for phosphorus have been developed for the New York City water supply 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.

In the New York City water supply watershed east of the Hudson River (EOH), the costs to municipalities for reducing phosphorus via collection and treatment of storm water (by retrofitting existing storm drain systems) have been identified to be many millions of dollars. Several water quality studies are indicating that significant reductions in phosphorus loads may be attained by controlling phosphorus fertilizer with almost no cost or consequence. According to a study done by the University at Michigan, reducing phosphorus inputs is far more cost effective than collection and treatment to remove phosphorus from storm water with costs in the millions of dollars.

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, Maryland, 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. However, 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 earned 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, Chautauqua and Westchester Counties ban the sale or use of phosphorus fertilizer in efforts to reduce phosphorus discharges.

Budget implications

The bill would have no significant impact on the State budget because it would not impose any significant new responsibilities on the State.

Effective date

This bill would take effect thirty days after it shall have become a law; provided, however that (1) retailers shall have sixty days from the effective date to sell through product subject to section one of this act which is held in inventory on the effective date; (2) sections three, four, five, and six shall take effect on January

1, 2012; (3) persons may continue to use phosphorus containing fertilizer after January 1, 2010 if it was purchased prior to that date; and (4) the amendments to section two would take effect July 1, 2013.