July 27, 2001
PESTICIDE NOTIFICATION LAWS
By: Kevin E. McCarthy, Principal Analyst
You requested a discussion of (1) Connecticut's pesticide notification law and recent legislative proposals, (2) the feasibility of placing the Department of Environmental Protection's (DEP) notification registry on the Internet, and (3) New York's recent changes to its pesticide notification law.
Connecticut law generally requires anyone who applies pesticides outdoors to post signs notifying the public of the application. It requires businesses that apply pesticides to provide information about the pesticides they use to their prospective customers and the DEP pesticide notification registry. If the business plans to apply pesticides to property abutting where a person who is on the registry lives, it must notify the person before applying the pesticide. There are separate notice requirements for applications on bodies of water, utility property, and golf courses; aerial applications; and applications in schools or on school grounds.
These laws were adopted between 1986 and 1999. No legislation has been introduced in the past two years on notification, although there have been bills on other aspects of pesticide use.
DEP is currently investigating the feasibility of allowing people to sign up on-line for its registry. In doing so, it is consulting with the Department of Consumer Protection (DCP), whose “do not solicit” registry allows people to sign up on-line. Among the issues DEP is considering is the administrative burden of this option and privacy concerns.
In 2000, New York State adopted legislation (2000 N.Y. Laws ch. 285) expanding its pesticide notice provisions. The legislation (1) allows counties and New York City to adopt local laws requiring pesticide businesses and property owners to provide notice when they apply pesticides to lawns and (2) provides for notice to staff and parents when pesticides are applied in schools and day care centers. The law went into effect July 1, 2001.
The primary pesticide notification law is CGS § 22a-66a. The law was adopted in 1986 and substantially amended in 1988. The 1988 amendment expanded notice requirements and required DEP to establish a registry of people desiring notification when an abutting property was about to be sprayed. Other laws govern aquatic and aerial applications and applications on utility property, in schools, and on school grounds. By law, pesticides include chemicals used to control insects, rodents, and weeds.
Anyone who applies pesticides within 100 yards of a property line must post signs at conspicuous points of entry notifying the public of the application. The signs must conform with DEP regulations. Pesticide retailers must provide such signs to their customers and inform them of the notice requirement. The signage requirement does not apply to noncommercial applications to areas of less than 100 square feet or to fenced areas. Separate requirements apply to applications on farmland. The regulations implementing these provisions (Conn. Agencies Regs. § 22a-66-1) also require that the sprayed area be posted with small flags labeled “pesticide application.”
Pesticide Application Businesses/Notification Registry
Before a pesticide application business can enter into an agreement to apply a pesticide, it must provide the prospective customer with (1) notice of the DEP registry and (2) a copy of the pesticide label that provides information on its active ingredients and potential hazards, among other things. The latter requirement does not apply to pesticide applications to electric utility rights-of-way, facilities, or equipment, so long as the application is consistent with a DEP-approved pesticide management plan.
Before the business can apply a pesticide within 100 yards of a property line, it must provide notice of the date and time of the application to any owner or tenant who (1) lives on property that abuts the property to be treated and (2) requests notification. The abutter can submit his request form to the business or DEP. The law specifies the information the form must contain, including the name, address, and telephone number (if listed) of anyone whose property abuts that requestor. Pesticide businesses must submit notification requests to DEP, which must maintain the registry. Additional details regarding the registry can be found in Conn. Agencies Regs. § 22a-66a-2.
The business must make at least two attempts to notify the owner or tenant who requested notification. The attempts can be by phone, mail, in person, or by other means. The attempts must be made as soon as possible and at least 24 hours before the application. Under certain circumstances, the business must attempt to notify the owner or tenant immediately before the application. These circumstances are (1) if previous attempts have failed, (2) an emergency application is needed, or (3) if integrated pest management (IPM) best management practices recommend an immediate application of the pesticide in order to reduce the amount of pesticide needed. If all notification attempts fail, notice of the application and the attempts at notification must be placed on the doorstep of the person requesting notification. Separate requirements, described below, apply to aerial applications of pesticides.
Other Notice Requirements
Aquatic Applications. Separate notice requirements apply under CGS § 22a-66a when a pesticide business or government agency proposes to introduce pesticides into a lake or pond. The applicator must publish a newspaper notice of the pending treatment, unless only one person owns the shoreline of the lake or pond. If the lake or pond is publicly owned, the applicator must post a sign at public access points. The sign must state when the lake or pond can be used after the application. Similar provisions apply under CGS § 22a-66z when anyone seeks to introduce chemicals into the waters of the state to control aquatic vegetation, fish, or other aquatic organisms.
Utility Property. The notice requirements of CGS § 22a-66a do not apply to pesticide applications to rights-of-way, roadways, electric distribution lines made by pesticide businesses, municipalities, the state, utilities, or railroads. But, electric and telecommunication utilities must provide notice pursuant to CGS § 22a-66k in connection with pesticide applications to their rights-of-way. The notice goes to the owners, tenants, and other occupants whose property is in or abuts the right-of-way. The notice, which may be by any means, must be made at least 48 hours before the application. In addition, if a utility applies pesticide to its existing poles, it must post a notice of the application on each pole. Electric utilities also must develop pesticide management plans, which are subject to the approval of the DEP commissioner and the Department of Public Utility Control. If the utility does not have an approved plan, it is subject to the notification requirements of CGS § 22a-66a.
Golf Courses. If a business (or another authorized applicator) plans to apply pesticides to a golf course, it must first post a sign at the clubhouse and at the first tee. The sign must conform with DEP regulations (CGS § 22a-66a).
Aerial Applications/Mosquito Spraying. The aerial application of any pesticide or fertilizer, other than the pesticide Bacillus thuringenienis (B.t.) requires the written release of each landowner or resident whose property lies within a specified distance of the flight path of the aircraft. The distance is 200 feet from the flight path in the case of helicopter applications and 300 feet in the case of airplane applications.
In the case of B.t. applications, landowners and residents in these areas must be notified before the application. The notice, which must be given at 31 days before the spraying, must state the date of the application, the pesticide to be applied, and how the recipient can object to the spraying. If a recipient objects in writing within 30 days of receiving the notice, the area cannot be sprayed (Conn. Agencies Regs. § 22a-66-7.)
CGS § 22a-54 restricts the application of pesticides or fungicides by aircraft or misting devices to shade tobacco within 300 feet of an inhabited residence without the resident's written consent. The restriction applies to housing for which a certificate of occupancy was issued before January 1, 1997. It does not apply to applications to land that was poled for the cultivation of tobacco between January 1, 1994 and January 1, 1997, nor to applications in areas covered by nets.
The Department of Public Health (DPH) must publish a notice in a local newspaper before spraying pesticide to control mosquito larvae. DPH or a local health department must post a sign in the affected area before spraying pesticide to control adult mosquitoes (CGS § 22a-66a.)
Schools. Under CGS § 10-231 et seq. public schools must inform parents and school staff about their pest management policy at the start of each school year. They must establish a registry of parents and staff who want advance notice when pesticides are applied in their schools or on the school's grounds. The annual notice must tell parents and staff that they can sign up for the school's registry. If the school has an IPM plan, the notice to people on the registry can be by any means and can be made on the day the pesticide is applied. If the school does not have an IPM plan, it must provide notice by mail at least 24 hours before the application, unless it is response to an emergency in which case the notice can be by any means by the application day. The notice must include the pesticide's active ingredient, the application location and date, and the school official to contact regarding the application. If the school does not have an IPM plan, the notice also must identify the targeted pest. These requirements do not apply to charter schools or schools under the state's control.
FEASIBILITY OF PUTTING DEP REGISTRY ON-LINE
The DEP registry application form is available on-line at DEP's Website http://www.dep.state.ct.us/mosquito/prenotif.pdf, but an individual currently cannot apply on-line to be put on the registry. DEP is currently investigating the feasibility of this option. It is consulting with DCP, whose “do not solicit” registry allows people to sign up on-line. DEP staff note that making this option available for its registry raises administrative and privacy issues. A private party voluntarily agreed to develop and administer the DCP registry, which has had hundreds of thousands of people sign up. It is unclear how much it would cost DEP to (1) develop the software needed to permit on-line sign ups and (2) maintain the on-line registry. Currently, DEP's registry lists approximately 200 people. Another potential concern raised by DEP staff is privacy. Currently, the registry is open to public inspection under the Freedom of Information Act. Putting the registration on-line would greatly facilitate people gaining information about their neighbors.
NEW YORK LEGISLATION
The 2000 legislation allows counties and New York City to adopt local laws requiring advance written notice of lawn applications of pesticides. Under such laws, a pesticide business must notify occupants and owners of all buildings whose property is within 150 feet of site to be treated. The notice must be given at least 48 hours before the application. Certain applications are exempt, including (1) spot applications to areas of less than nine square feet, (2) the use of non-volatile insect and rodent traps, and (3) applications at cemeteries. The law also exempts emergency applications to protect public health, but requires the applicator to make a good faith effort to give prior written notice to the abutting property owners. The state Department of Health must review such applications, after the fact, to determine whether there was an emergency. The law requires anyone applying pesticides to more than 100 square feet of lawn to place small flags on the property on the day it will be sprayed. All retailers who sell pesticides must post a sign located as close as possible to them that meets the requirements of the regulations discussed below. (N.Y. Envtl. Conserv. Law § 33-1004).
The Environmental Conservation commissioner must adopt regulations with regard to signage, the contents of the notice, notification methods, and procedures for investigating violations of the flagging requirement. The law specifies that the notice can be provided by mail, leaving a copy with an adult, or posting it on the property requiring notification. For multifamily dwellings, the property owner or his agent must provide notice to the occupants. The commissioner also must publish educational materials (N.Y. Envtl. Conserv. Law § 33-1005).
The law requires public and private schools to provide information to staff and parents four times per year. At the beginning of the school year, schools must provide information similar to that required under Connecticut law. Two days after the end of winter and spring recess, and ten days after the end of the school year, they must provide parents and staff written notice of when and where they used pesticides since the previous notice and indicate the pesticide used. The notice must also include a statement that schools must maintain a registry of parents and staff who wish to receive advance notice of pesticide application and instructions on how to obtain additional information about the registry and the effects of pesticides.
At least 48 hours before applying pesticides, a school must notify the people on its registry of the date and location of the application (notifications regarding outdoor applications can include up to two alternative dates to account for weather delays). The notice must include the name and registration number of the pesticide to be applied. It also must include a statement that includes toll-free numbers where people can obtain additional information about the pesticides, and the name and telephone number at the school.
The law provides several exceptions to the notice requirements, including applications of certain pesticides and applications to (1) rooms that will remain unoccupied for at least 72 after the application and (2) areas that are inaccessible to students. The law also allows emergency applications to protect public health, subject to the same restrictions that apply to emergency applications of pesticides to laws.
The law requires the education commissioner to enforce these provisions and allows him to withhold specified state funding for school districts that violate them. However, the district's violation is not grounds for a civil or criminal lawsuit, unless the failure constitutes, negligence, gross negligence, or intentional misconduct (N.Y. Educ. Law § 409-h).
Day Care Centers
Day care centers must post a notice in a common area of the facility at least 48 hours before applying pesticides. The notice must provide the date and location of the application, the pesticide to be used, and name and telephone number of a contact person. If someone other than the day care provider arranges for the application, that person must provider the provider with this information. The exemptions from the notice requirement and the provisions for emergency applications are the same as under the school notice law (N.Y. Soc. Serv. Law § 390-c).
A person who violates the lawn care or day care center provisions of the law receives a warning and education material for a first violation. Retailers who fail to put up the required sign have seven days to do so. A second violation of these provisions is subject to a fine of up to $100, and a subsequent violation is subject to a fine of up to $250 (Envtl. Conserv. Law § 71-2907, N.Y. Soc. Serv. Law § 390-c). As noted above, school districts that violate the law are subject to a loss of funding.