§ 409-H — Requirements for notification of pesticide applications

§ 409-h. Requirements for notification of pesticide applications. 1.\nFor purposes of this section the following terms shall have the meanings\nset forth below:\n (a) "School" shall mean any public school district or private or\nparochial school or board of cooperative educational services.\n (b) "Pesticide" shall have the same meaning as in subdivision\nthirty-five of section 33-0101 of the environmental conservation law.\n (c) "Facility" means any school building used for instructional\npurposes and its surrounding grounds, sites and other grounds to be used\nfor playgrounds, athletics and other instructional purposes, and any\nadministrative offices.\n (d) "Written notification" shall mean notice in writing that is:\nprovided directly to the student or staff; or delivered to a receptacle\ndesignated for that student or staff; or mailed to the student's or\nstaff's last known address; or delivered by any other reasonable methods\nauthorized by the commissioner.\n (e) "School year" shall mean the period commencing on the first day of\nregular instruction and shall end on the last day of session.\n (f) "Relevant facility" shall mean any facility where the staff person\nreceiving notification regularly works or where a child of the person in\nparental relation receiving notification regularly receives instruction.\n 2. Schools shall establish a pesticide notification procedure to\nprovide information on pesticide applications at school facilities.\nSchools shall provide written notification of pesticide applications at\nany relevant facility to staff and persons in parental relation\naccording to the following provisions:\n (a) The school shall provide written notification to all staff and\npersons in parental relation at the beginning of each school year.\nProvided however, that if a child enrolls after the beginning of the\nschool year, notification shall be provided within one week of such\nenrollment. The notification provided at the beginning of the school\nyear shall include at a minimum the following information:\n (i) a statement that pesticide products may be used periodically\nthroughout the school year;\n (ii) a statement that schools are required to maintain a list of staff\nand persons in parental relation who wish to receive forty-eight hour\nprior written notification of pesticide applications at relevant\nfacilities, and instructions on how to register with the school to be on\nsuch list for notification; and\n (iii) the name of a school representative and contact number to obtain\nfurther information.\n (b) Within ten days of the end of the school year and within two\nschool days of the end of winter recess and spring recess, the school\nshall provide written notification to all staff and persons in parental\nrelation listing the date, location and product used, for each\napplication which required prior notification and each emergency\napplication made, at relevant facilities, during the period of time\nsince the previous notice. Such notification shall also include a\nstatement that schools are required to maintain a list of staff and\npersons in parental relation who wish to receive forty-eight hour prior\nwritten notification of pesticide applications and instructions on how\nto register with the school to be on such list for prior notification;\nhow to obtain further information about the products being applied,\nincluding any warnings that appear on the label of the pesticides that\nare pertinent to the protection of humans, animals or the environment;\nand the name of a school representative and contact number for\nadditional information.\n (c) Each school shall establish and maintain a list of staff and\npersons in parental relation requesting written notification forty-eight\nhours in advance of pesticide applications at relevant facilities.\nSchools shall add any staff or person in parental relation to such list\nupon request.\n (d) Not less than forty-eight hours prior to the application of a\npesticide at a facility, a school shall provide to those on the list\nrelevant to such facility, written notification which shall include, at\na minimum the following information:\n (i) the specific date and location of the application at the relevant\nfacility. In case of outdoor applications the notice must provide a\nspecific date, and may include two alternative dates in case the\napplication cannot be made due to weather conditions;\n (ii) the product name and pesticide registration number assigned by\nthe United States Environmental Protection Agency;\n (iii) the following statements: "This notice is to inform you of a\npending pesticide application to a school facility. You may wish to\ndiscuss with the designated school representative what precautions are\nbeing taken to protect your child from exposure to these pesticides.\nFurther information about the product(s) being applied, including any\nwarnings that appear on the label of the pesticide(s) that are pertinent\nto the protection of humans, animals or the environment, can be obtained\nby calling the National Pesticide Telecommunications Network information\nphone number 1-800-858-7378 or the New York State Department of Health\nCenter for Environmental Health Info line at 1-800-458-1158."; and\n (iv) the name of a school representative and contact number for\nadditional information.\n (e) For purposes of this section the following pesticide applications\nshall not be subject to prior notification requirements:\n (i) the application of anti-microbial pesticides and anti-microbial\nproducts as defined by FIFRA in 7 U.S.C. § 136 (mm) and 136q (h)(2);\n (ii) the use of an aerosol product with a directed spray, in\ncontainers of eighteen fluid ounces, or less, when used to protect\nindividuals from an imminent threat from stinging and biting insects\nincluding venomous spiders, bees, wasps, and hornets. This section shall\nnot exempt from notification the use of any fogger product or aerosol\nproduct that discharges to a wide area;\n (iii) any application where the school facility remains unoccupied for\na continuous seventy-two hour period following the application of the\npesticide;\n (iv) nonvolatile rodenticides in tamper resistant bait stations or in\nareas inaccessible to children;\n (v) silica gels and other nonvolatile ready-to-use, paste, foam or gel\nformulations of insecticides in areas inaccessible to children;\n (vi) nonvolatile insecticidal baits in tamper resistant bait stations\nor in areas inaccessible to children;\n (vii) application of a pesticide classified by the United States\nEnvironmental Protection Agency as an exempt material under Section 40\nCFR Part 152.25;\n (viii) boric acid and disodium octaborate tetrahydrate;\n (ix) the application of a pesticide which the United States\nEnvironmental Protection Agency has determined satisfies its reduced\nrisk criteria, including a biopesticide; or\n (x) any emergency application of a pesticide when necessary to protect\nagainst an imminent threat to human health, provided however, that prior\nto any such emergency application, the person making such application\nshall make a good faith effort to supply the written notice required\npursuant to this section. Upon making such an emergency application, the\nperson making such application shall notify the commissioner of the\ndepartment of health, using a form developed by the commissioner for\nsuch purposes that shall include minimally the name of the person making\nthe application, the pesticide business registration number or certified\napplicator number of the person making such application, the location\nand date of such application, the product name and USEPA registration\nnumber of the pesticide applied and the reason for such application. The\ncommissioner shall review such form to ensure that the circumstance did\nwarrant such emergency application. Such forms shall be kept on file at\nthe department for three years from the date of application and shall be\navailable to any individual upon request.\n 3. The commissioner is hereby charged with ensuring the compliance of\nschools with the requirements of this section, and shall establish a\nprocedure for parents to notify the state of any school's failure to\ncomply with the requirements of this section. Whenever it shall have\nbeen demonstrated to the satisfaction of the commissioner that a school\ndistrict has failed to adopt a procedure for notification, or to\nfaithfully and completely implement this section, the commissioner may,\non thirty days notice to the district, withhold from the district monies\nto be paid to such district for the current school year pursuant to\nsection thirty-six hundred nine-a of this chapter, exclusive of monies\nto be paid in respect of obligations to the retirement systems for the\nschool and district staff and pursuant to collective bargaining\nagreements. Where it has been demonstrated to the satisfaction of the\ncommissioner that a private or parochial school has failed to adopt a\nprocedure for notification, or to faithfully and completely implement\nthis section, the commissioner may, on thirty days notice to such\nschool, withhold from the school state aid monies to be paid to such\nschool for the current school year pursuant to chapter five hundred\nseven of the laws of nineteen hundred seventy-four, as amended by\nchapter nine hundred three of the laws of nineteen hundred eighty-four.\nPrior to such withholding, the commissioner shall provide the school an\nopportunity to present evidence of extenuating circumstances; when\ncombined with evidence that the school shall promptly comply within\nshort time frames that shall be established by the commissioner as part\nof an agreement between the school and the commissioner, the\ncommissioner may temporarily stay the withholding of such funds pending\nimplementation of such agreement. If the school is in full compliance\nwith this section, the commissioner shall abate the withholding in its\nentirety.\n 4. No school or employee of a school shall be held civilly or\ncriminally liable for any failure to comply with the requirements of\nthis section, unless such failure constitutes negligence, gross\nnegligence, or intentional misconduct. Nothing contained herein shall be\nconstrued as limiting any legal cause of action or remedy at law, in\nstatute or in equity that existed prior to the effective date of this\nsection.\n