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Policy DMM-1 Determinations Regarding Emergency Pesticide Applications at Schools and Day Care Centers and Inquiries on Related Pesticide Prohibition

Issuing Authority: Eugene Leff, Deputy Commissioner
Date Issued: July 27, 2011
Latest Date Revised: July 14, 2011

I. Summary

This policy establishes procedures for use by Central Office staff of the Department of Environmental Conservation (DEC), Division of Materials Management (DMM), Bureau of Pest Management (BPM):

  • in responding to requests for emergency pesticide application determinations, pursuant to the State Education Law (SEL) and Social Services Law (SSL), as amended by Chapter 85 of the Laws of 2010 (Chapter 85).
  • in providing consistent responses to questions on the DEC Guidance on Chapter 85 and appropriate referrals of inquiries and/or complaints regarding the subject SEL and SSL requirements.
    This policy addresses the scope of the type of emergency pesticide application requests to be considered by DEC, timeframes for emergency determinations, determination request forms, DEC recording and transmittal forms, and DEC referrals to other State and local entities.

This policy is available on the DEC website at http://www.dec.ny.gov/regulations/8527.html.

II. Policy

Authorized1 staff will follow this policy, including the specific steps in section V (Procedure), and use the DEC Guidance on Chapter 852, regarding pest management on grounds at schools and day care centers in New York State, when addressing the following:

  • responses to requests for emergency pesticide application determinations pursuant to the SEL and SSL,
  • referrals of requests for compliance assistance on Chapter 85 or related amendments to the SEL and SSL,
  • referrals of complaints about compliance with those laws, and
  • responses to questions about the DEC Guidance on Chapter 85.

III. Purpose and Background

A. Purpose
The primary purpose of this policy is to establish procedures and information for BPM staff use in making emergency pesticide application determinations and in responding to or referring questions on subjects such as alternatives to pesticides, compliance assistance, complaints regarding potential non-compliance, and other topics addressed in Chapter 85. This will enable authorized BPM staff to handle such requests, inquiries and complaints in a consistent manner.

B. Background
Chapter 85 added section 409-k to the State Education Law (SEL) and 390-g to the Social Services Law (SSL). Those sections impose a prohibition on the application of most pesticides to playgrounds, turf and athletic or playing fields at schools and day care centers in the State, allow only a few types of pesticides to be used, and authorize certain entities, including DEC, to make emergency pesticide application determinations. When a determination is made that an emergency application is needed, the specific school or day care center would be able to apply an otherwise prohibited pesticide. The New York State Education Department (SED) and the State Office of Children and Family Services (OCFS) interpret those sections of the SEL and SSL; those agencies should be contacted with any questions regarding the scope of "turf", "playgrounds" and "fields". (See section V. B. of this policy for further information.)

Chapter 85 also added Environmental Conservation Law (ECL) section 33-0303.7 to require DEC, in consultation with the New York State Department of Health (DOH) and the SED, to develop the aforementioned DEC Guidance on Chapter 85, specifically regarding alternatives to pesticides to assist schools and day care centers in complying with the prohibition and other new requirements in Chapter 85. Among other subjects covered in the DEC Guidance are maintenance of grounds at schools and day care centers without pesticides, which pesticides are allowed under the law, and the basic framework by which a school or day care center is to seek an emergency determination to apply a prohibited pesticide. DEC, DOH, SED and the OCFS identified in the DEC Guidance the basic approach for seeking and/or making such determinations. The specific steps for BPM staff will follow in making such determinations are contained in this policy.

IV. Responsibility

The BPM will interpret, maintain and implement this policy. Authorized DMM staff will make emergency pesticide application determinations pursuant to the SSL and SED and in accordance with this policy, including following the procedures in section V.

V. Procedure

A. Requests for Emergency Determinations
Under Chapter 85, the SEL and SSL allow for an exemption from the pesticide prohibition, when an emergency pesticide application determination is made by certain
entities, including the Commissioner of the DEC. The following are the procedures for making DEC emergency pesticide application determinations:

  1. Only authorized DEC staff will make such determinations on behalf of the Commissioner and will follow this policy and Section D of the DEC Guidance when responding to any request for an emergency pesticide application determination.
  2. Authorized staff will consider only those requests for emergency determinations from non-public schools and day care centers in New York State, which are subject to section 409-k of the SEL and 390-g of the SSL, or their contracted groundskeepers, for significant environmentally-related emergencies, as follows:
    1. Requests from entities identified in "2" above will only be considered by DEC if those requests relate to an emergency which would significantly affect the environment, such as certain invasive species threats (see section D of the DEC Guidance). If it is unclear whether a scenario presented in a request would significantly affect the environment and fall within the narrow category of an emergency application, involved BPM staff may request further information from the requestor and/or consult with DEC staff in other programs before issuing a determination.

      Overall, and as stated in section D of the DEC Guidance, when the problem can be managed with the products allowed under Chapter 85 or with alternative pest management methods, it will not be considered an emergency. This is the case even if more than one season would be needed to manage the problem. (Examples of situations that would generally not be considered emergencies are listed in section D of the DEC Guidance.)
    2. Requests must be received by DEC on the form Request for Determination for Emergency Pesticide Application (PDF, 49 kB), which is attached as part of this policy. The completed form may be submitted to DEC via mail, e-mail or fax.

      If the form is incomplete, BPM staff will notify the authorized representative who signed the request form of the reasons why the form is incomplete and advise the representative that the additional information is required to be provided to DEC, if they want to seek an emergency determination. If the information is not received and the request form remains incomplete five working days after notice of incompleteness, authorized staff will deny the request using the attached model letter for notification of denial.
      If a request is made without the form (e.g., via telephone, letter or e-mail message), BPM staff will direct the requestor to submit the request on the Request for Determination form and advise the requestor that DEC will consider the request when a completed form is received.
    3. Requests should only be granted for a one‐time pesticide application or treatment for a specific situation that presents a true emergency which would significantly affect the environment (as specified in Section D of the DEC Guidance). A one-time application or treatment would include:
      i. a pesticide applied during a single application (per the product label), or
      ii. a single treatment consisting of multiple pesticide applications, if specified on the product label as the only course of treatment for the target pest under conditions specified on the label. Such a treatment must match the pest and situation specified by the non-public school or day care center on the Request for Determination form.
      If the pest management problem occurs again during the same growing season or in a subsequent growing season, the school or day care center must submit a new request for an emergency exemption.
  3. BPM staff will record the emergency determination by completing a Department Determination for Emergency Pesticide Application (PDF, 32 kB) form, which is attached as part of this policy, and authorized staff will sign the completed form.
  4. Determinations will be made as soon as practicable. The final determination will be provided in writing to the school or day care center making the request no later than five working days after DEC receipt of the complete Request for Determination form. The final determination, approving or denying the request, will be communicated in a letter, similar to the model letter (PDF, 12 kB),which is attached as part of this policy, signed by authorized staff.
  5. Staff will maintain, at a minimum, the completed Request for Determination and Department Determination forms and the letter communicating the final determination.
  6. Authorized staff shall not make determinations for emergency pesticide applications received from certain entities, as follows:
    1. Requests from public schools or their grounds keepers (on-staff or contracted, including certified pesticide applicators): The local school board will make such determinations, in accordance with the State Education Law. Return any such request to the school and advise them to submit the request to the local school board. As stated in the DEC Guidance, the State Education Department has interpreted Chapter 85 to require all public schools to request emergency determinations from the applicable school board. Referral to another entity for determination will be recorded on the DD form.
    2. Requests related to public health emergencies: Advise the school or day care center to submit any request related to public health matters to the local county health department (contact list attached to the DEC Guidance on Chapter 85- attached to this policy) or to the NYS Department of Health (DOH) Bureau of Toxic Substance Assessment at 518-402-7820. Return the original request to the school or day care center, if appropriate. Referral to another entity for determination will be recorded on the DD form.
  7. Staff will confer with the DOH Bureau of Toxic Substance Assessment regarding any request presented to DEC as environmentally-related, but which staff find may be public health-related instead of or in addition to being environmentally-related. Staff should complete communication with DOH within the five-day timeframe for making determinations and before referring the request to that agency or before issuing a determination.

B. Questions Regarding Requirements for Schools and Day Care Centers, this Policy, or the DEC Guidance on Chapter 85
BPM staff will refer most questions received from schools or day care centers to the SED or OCFS, respectively. Questions regarding the role of DOH, SED or OCFS, including the roles delineated in the DEC Guidance, should be referred as follows:

  1. Refer the following questions to the SED Office of Facilities Planning: Questions from public and non-public schools or their groundskeepers or pest management professionals or the general public about: requirements in 409-k of the Education Law and/or Chapter 85, or potential violations or enforcement of those requirements (including complaints), any aspect of the pesticide prohibition, such as questions about the components of the grounds and turf which the prohibitions cover (e.g., trees, bins, leased properties), and pesticides allowed under the SEL. The contact information for SED is contained in Section E of the DEC Guidance.
  2. Refer to the OCFS Division of Child Care Services: Questions from day care centers or their groundskeepers or pest management professionals or the general public about requirements in section 309-g of the Social Services Law and/or Chapter 85, or potential violations or enforcement of those requirements, including complaints, any aspect of the pesticide prohibition, such as questions about the components of the grounds and turf which the prohibitions cover (e.g., trees, bins, leased properties), and pesticides allowed under the SSL. The contact information for OCFS is contained in Section E of the DEC Guidance.
  3. Refer to the Local Cooperative Extension Office: Questions from schools, day care centers, their groundskeepers or professional applicators about pest management alternatives, identification of insects, weeds and diseases, appropriate turf and optimal turfgrass culture and management, and turf and plant varieties. Contact information for cooperative extensions is listed at http://cce.cornell.edu/Pages/Default.aspx.

    BPM staff will handle inquiries regarding the DEC Guidance on Chapter 85 by referring to the content of that document. Inquiries about types of pesticides statutorily excepted from the prohibition should be addressed utilizing Section B (Which Pesticides are Allowed) of the attached DEC Guidance as a basic core of information. Questions regarding a specific product label should be answered by BPM staff using the NYS Pesticide Product Ingredient and Manufacturer System.

VI. Related References

  • Chapter 85 of the Laws of 2010
  • Section 409-k of the State Education Law
  • Section 309-g of the Social Services Law
  • Section 33-0303.7 of the Environmental Conservation Law
  • DEC Guidance on Chapter 85 at http://www.dec.ny.gov/docs/materials_minerals_pdf/guidancech85.pdf

1 Under this Policy, "authorized" staff, are those who are authorized by the Commissioner to make emergency pesticide application determinations on the Commissioner's behalf (see V. A. 1. in this Policy).
2 The DEC Guidance is entitled "Guidance on Chapter 85, Laws of 2010 Summary of Pesticide Prohibition Requirements and Pesticide Alternatives."


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