Suffolk County, NY
 
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Table of Contents
Table of Contents
[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.]
GENERAL REFERENCES
Conservation easements — See Ch. 25.
Agricultural operations — See Ch. 274.
Environmental protection — See Chs. 450 and 943.
Transport and disposal of hazardous waste — See Ch. 512, Art. I.
Pest control — See Ch. 647.
Storm sewers — See Ch. 759.
Stormwater management — See Ch. 763.
Vector control — See Ch. 1162.
459a Uncod LL Pro
[Adopted 11-19-2002 by L.L. No. 24-2002 (Ch. 289, Art. I, of the 1985 Code)]

§ 459-1 Legislative intent.

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.

§ 459-2 Definitions.

As used in this article, the following terms shall have the meanings indicated:
IRONITE
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.
PERSON
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.

§ 459-3 Prohibitions.

A. 
No individual shall purchase ironite within the County of Suffolk.
B. 
No person shall sell or offer to sell ironite to an individual within the County of Suffolk.

§ 459-4 Penalties for offenses.

Any intentional violation of § 459-3A or B of this article shall constitute an unclassified misdemeanor and shall be punishable by a fine of up to $5,000.

§ 459-5 Applicability.

This article shall apply to purchases or sales occurring on or after the effective date of this article.

§ 459-6 Reverse preemption.

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)]

§ 459-7 Legislative intent.

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.

§ 459-8 Definitions.

As used in this article, the following terms shall have the meanings indicated:
COMMISSIONER
The Commissioner of the Suffolk County Department of Environment and Energy.
DEPARTMENT
The Suffolk County Department of Environment and Energy.
ESTABLISHMENT
A store or person located within Suffolk County who or which sells or offers fertilizer for sale.
FERTILIZER
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.
PERSON
Any individual, firm, partnership, corporation, company, society, association, or any organized group of persons, whether incorporated or not.
SURFACE WATER
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]
TURF
Any area of earth principally vegetated by grass.

§ 459-9 Application restrictions.

[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.

§ 459-10 Selling establishment signs and brochures; report on fertilizer sales.

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.

§ 459-11 Education and reporting on fertilizer risks.

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.

§ 459-12 Annual report; program evaluation reports.

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.

§ 459-13 Signs and brochures.

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.

§ 459-14 Exemptions.

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.
C. 
Any reporting requirement which is promulgated by Suffolk County pursuant to § 459-10B shall not apply to an establishment selling less than 1,000 pounds of fertilizer in total during the preceding calendar year.

§ 459-15 Waivers.

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.

§ 459-16 Enforcement.

The Suffolk County Department of Health Services shall enforce the prohibitions and requirements of §§ 459-9 and 459-10 of this article, in accordance with the enforcement procedures established by Suffolk County Sanitary Code, Article II, §§ 760-202 through 760-220.

§ 459-17 Penalties for offenses.

A. 
Any violation of §§ 459-9 and 459-10 this article shall be subject to a civil penalty in an amount not to exceed $1,000 per violation.
B. 
Each day of continued violation shall constitute a separate additional violation.

§ 459-18 Rules and regulations.

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.

§ 459-19 Reverse preemption.

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.

§ 459-20 Effective date.

Sections 459-9 and 459-10 of this article shall apply to all actions occurring on or after January 1, 2009.