NY Educ L § 409-H (2021)
2021 New York Laws EDN - Education Title 1 - General Provisions Article 9 - School Buildings and Sites 409-H - Requirements for Notification of Pesticide Applications.

§  409-h.  Requirements for notification of pesticide applications. 1. For purposes of this section the following terms shall have the meanings set forth below:  (a) "School" shall mean any  public  school  district  or  private  or parochial school or board of cooperative educational services.  (b)  "Pesticide"  shall  have  the  same  meaning  as  in  subdivision thirty-five of section 33-0101 of the environmental conservation law.  (c) "Facility"  means  any  school  building  used  for  instructional purposes and its surrounding grounds, sites and other grounds to be used for  playgrounds,  athletics  and  other instructional purposes, and any administrative offices.  (d) "Written notification" shall  mean  notice  in  writing  that  is: provided  directly to the student or staff; or delivered to a receptacle designated for that student or staff; or  mailed  to  the  student's  or staff's last known address; or delivered by any other reasonable methods authorized by the commissioner.  (e) "School year" shall mean the period commencing on the first day of regular instruction and shall end on the last day of session.  (f) "Relevant facility" shall mean any facility where the staff person receiving notification regularly works or where a child of the person in parental relation receiving notification regularly receives instruction.   2.  Schools  shall  establish  a  pesticide  notification procedure to provide information on  pesticide  applications  at  school  facilities. Schools  shall provide written notification of pesticide applications at any  relevant  facility  to  staff  and  persons  in  parental  relation according to the following provisions:  (a)  The  school  shall  provide written notification to all staff and persons in parental relation at  the  beginning  of  each  school  year. Provided  however,  that  if  a child enrolls after the beginning of the school year, notification shall be provided  within  one  week  of  such enrollment.  The  notification  provided  at the beginning of the school year shall include at a minimum the following information:  (i) a statement that  pesticide  products  may  be  used  periodically throughout the school year;  (ii) a statement that schools are required to maintain a list of staff and  persons  in  parental relation who wish to receive forty-eight hour prior  written  notification  of  pesticide  applications  at   relevant facilities, and instructions on how to register with the school to be on such list for notification; and  (iii) the name of a school representative and contact number to obtain further information.  (b)  Within  ten  days  of  the  end of the school year and within two school days of the end of winter recess and spring  recess,  the  school shall  provide written notification to all staff and persons in parental relation  listing  the  date,  location  and  product  used,  for   each application   which  required  prior  notification  and  each  emergency application made, at relevant facilities,  during  the  period  of  time since  the  previous  notice.  Such  notification  shall  also include a statement that schools are required to maintain  a  list  of  staff  and persons  in parental relation who wish to receive forty-eight hour prior written notification of pesticide applications and instructions  on  how to  register  with the school to be on such list for prior notification; how to obtain further information  about  the  products  being  applied, including  any  warnings that appear on the label of the pesticides that are pertinent to the protection of humans, animals or  the  environment; and  the  name  of  a  school  representative  and  contact  number  for additional information.  (c) Each school shall establish and  maintain  a  list  of  staff  and persons in parental relation requesting written notification forty-eight hours  in  advance  of  pesticide  applications  at relevant facilities. Schools shall add any staff or person in parental relation to such  list upon request.  (d)  Not  less  than  forty-eight  hours prior to the application of a pesticide at a facility, a school shall provide to  those  on  the  list relevant  to such facility, written notification which shall include, at a minimum the following information:  (i) the specific date and location of the application at the  relevant facility.  In  case  of  outdoor  applications the notice must provide a specific date, and  may  include  two  alternative  dates  in  case  the application cannot be made due to weather conditions;  (ii)  the  product  name and pesticide registration number assigned by the United States Environmental Protection Agency;  (iii) the following statements: "This notice is to  inform  you  of  a pending  pesticide  application  to  a  school facility. You may wish to discuss with the designated school representative what  precautions  are being  taken  to  protect  your child from exposure to these pesticides. Further information about the product(s) being  applied,  including  any warnings that appear on the label of the pesticide(s) that are pertinent to the protection of humans, animals or the environment, can be obtained by calling the National Pesticide Telecommunications Network information phone  number  1-800-858-7378 or the New York State Department of Health Center for Environmental Health Info line at 1-800-458-1158."; and  (iv) the name of  a  school  representative  and  contact  number  for additional information.  (e)  For purposes of this section the following pesticide applications shall not be subject to prior notification requirements:  (i) the application of anti-microbial  pesticides  and  anti-microbial products as defined by FIFRA in 7 U.S.C. § 136 (mm) and 136q (h)(2);  (ii)  the  use  of  an  aerosol  product  with  a  directed  spray, in containers of eighteen fluid ounces,  or  less,  when  used  to  protect individuals  from  an  imminent  threat from stinging and biting insects including venomous spiders, bees, wasps, and hornets. This section shall not exempt from notification the use of any fogger  product  or  aerosol product that discharges to a wide area;  (iii) any application where the school facility remains unoccupied for a  continuous  seventy-two  hour period following the application of the pesticide;  (iv) nonvolatile rodenticides in tamper resistant bait stations or  in areas inaccessible to children;  (v) silica gels and other nonvolatile ready-to-use, paste, foam or gel formulations of insecticides in areas inaccessible to children;  (vi)  nonvolatile insecticidal baits in tamper resistant bait stations or in areas inaccessible to children;  (vii) application of a  pesticide  classified  by  the  United  States Environmental  Protection  Agency as an exempt material under Section 40 CFR Part 152.25;  (viii) boric acid and disodium octaborate tetrahydrate;  (ix)  the  application  of  a  pesticide  which  the   United   States Environmental  Protection  Agency  has  determined satisfies its reduced risk criteria, including a biopesticide; or  (x) any emergency application of a pesticide when necessary to protect against an imminent threat to human health, provided however, that prior to any such emergency application, the person  making  such  application shall  make  a  good  faith effort to supply the written notice required pursuant to this section. Upon making such an emergency application, the  person making such application shall  notify  the  commissioner  of  the department  of  health,  using  a form developed by the commissioner for such purposes that shall include minimally the name of the person making the application, the pesticide business registration number or certified applicator  number  of  the person making such application, the location and date of such application, the product name  and  USEPA  registration number of the pesticide applied and the reason for such application. The commissioner  shall review such form to ensure that the circumstance did warrant such emergency application. Such forms shall be kept on file  at the department for three years from the date of application and shall be available to any individual upon request.   3.  The commissioner is hereby charged with ensuring the compliance of schools with the requirements of this section,  and  shall  establish  a procedure  for  parents  to  notify the state of any school's failure to comply with the requirements of this section.  Whenever  it  shall  have been  demonstrated to the satisfaction of the commissioner that a school district has failed  to  adopt  a  procedure  for  notification,  or  to faithfully  and completely implement this section, the commissioner may, on thirty days notice to the district, withhold from the district monies to be paid to such district for the  current  school  year  pursuant  to section  thirty-six  hundred nine-a of this chapter, exclusive of monies to be paid in respect of obligations to the retirement systems  for  the school   and  district  staff  and  pursuant  to  collective  bargaining agreements. Where it has been demonstrated to the  satisfaction  of  the commissioner  that  a  private or parochial school has failed to adopt a procedure for notification, or to faithfully  and  completely  implement this  section,  the  commissioner  may,  on  thirty  days notice to such school, withhold from the school state aid monies to  be  paid  to  such school  for  the  current  school  year pursuant to chapter five hundred seven of the laws  of  nineteen  hundred  seventy-four,  as  amended  by chapter  nine hundred three of the laws of nineteen hundred eighty-four. Prior to such withholding, the commissioner shall provide the school  an opportunity  to  present  evidence  of  extenuating  circumstances; when combined with evidence that the  school  shall  promptly  comply  within short  time frames that shall be established by the commissioner as part of  an  agreement  between  the  school  and   the   commissioner,   the commissioner  may temporarily stay the withholding of such funds pending implementation of such agreement. If the school is  in  full  compliance with  this  section, the commissioner shall abate the withholding in its entirety.   4. No school or  employee  of  a  school  shall  be  held  civilly  or criminally  liable  for  any  failure to comply with the requirements of this  section,  unless  such  failure  constitutes   negligence,   gross negligence, or intentional misconduct. Nothing contained herein shall be construed  as  limiting  any  legal cause of action or remedy at law, in statute or in equity that existed prior to the effective  date  of  this section.