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Post date: May 18 2016

A.G. Schneiderman Announces Settlement With Home Depot And Lowe’s Over Alleged Widespread Violations Of State Law Protecting New York Waters

Investigation Finds Alleged Violations Of State “Nutrient Runoff Law” At 90% Of Home Depot And Lowe’s Stores Inspected In New York; Stores To Pay Penalty, Comply With Law

Schneiderman: Retailers In New York Have Legal Duty To Help Consumers Protect Clean Water By Avoiding Improper Use Of Fertilizers

NEW YORK – Attorney General Eric T. Schneiderman today announced separate settlements with The Home Depot, Inc. and Lowe’s Home Centers, LLC over alleged violations of a 2010 state law designed to reduce water pollution caused by excess phosphorus running off lawns into New York waters.  New York’s Nutrient Runoff Law requires stores to display lawn fertilizers containing phosphorous separately from those that are phosphorus-free, as well as to post signs that notify consumers about the legal restrictions on using phosphorus-containing lawn fertilizer. 

The settlements are based on the results of a 2014 investigation by Attorney General Schneiderman that found 90% of Home Depot stores – 19 of 21 – and Lowe’s stores – 16 of 18 – in New York inspected by his office had one or more alleged violations of the law, either displaying phosphorus-containing lawn fertilizers without the required signage or failing to display phosphorus-containing lawn fertilizers separately from phosphorus-free fertilizers or both. The Attorney General reached a settlement with Wal-Mart Stores, Inc. in May 2015 over alleged equally widespread violations of the state’s Nutrient Runoff Law.

“Clean water is not only essential for New Yorkers’ health, but it also underpins our state’s economy,” Attorney General Schneiderman said.  “The state’s Nutrient Runoff Law requires retailers to help consumers protect clean water by avoiding improper use of lawn fertilizers.  We will continue to enforce this important environmental law in order to ensure New York’s waters are safe and healthy for today and the future.”

According the companies’ websites, there are 100 Home Depot and 70 Lowe’s stores located in New York.  

Between June and August of 2014, the Attorney General’s Office inspected 21 Home Depot and 18 Lowe’s stores across New York that sell lawn fertilizer.  At all of the 19 of the Home Depot stores that sold fertilizers containing phosphorous and 16 of the Lowe’s stores, the office found that – in violation of the state Nutrient Runoff Law – phosphorous-containing fertilizers were commingled with phosphorus-free fertilizers or displayed without the required signage, or both.  Follow-up inspections at three Home Depot and Lowe’s stores in September 2014 found additional alleged violations.   The Attorney General’s investigation discovered evidence that Lowe’s had taken steps to comply with the Nutrient Runoff Law when the law first went into effect, and found some Lowe’s stores in the state complied or partially complied with the law’s requirements.

The 21 Home Depot stores that were visited by investigators from the Attorney General’s office were in Albany (2), Chautauqua (2), Erie (4), Kings (5), Nassau (1), Niagara (1), New York (2), Queens (3), and Richmond (1) counties. The 18 Lowe’s stores visited by investigators were in Albany (3), Erie (5), Kings (2), Onondaga (4), Ontario (1), Richmond (2), and Saratoga (1) counties. 

The settlements require Home Depot and Lowe’s to bring their stores in New York into full compliance with the Nutrient Runoff Law, including providing required signage and displaying fertilizers containing phosphorous separately from phosphorous-free fertilizers. Further, to assist the state in assessing the effectiveness of the law, Home Depot is required to compile and disclose several years of past and future data related to their sales of fertilizers in New York. 

Finally, Home Depot will pay $78,000 and Lowe’s will pay $52,000, in penalties to New York State for the alleged violations.

Attorney General Schneiderman’s May 2015 settlement with Walmart required the company to comply fully with the law and pay penalties to the state.  The company decided to comply with the law by halting sales of phosphorus-containing fertilizers intended for use on lawn or non-agricultural turf at Walmart stores and Sam’s Club stores in the state.  Additionally, Walmart decided not to sell phosphorous-containing fertilizers intended for use on lawn or non-agricultural turf at to consumers in New York.

Phosphorus is an element added to fertilizer to promote plant growth. While the soils in New York State typically contain enough phosphorus to support healthy lawns, homeowners and landscapers often apply phosphorus-containing fertilizers to lawns, and the excess phosphorus can then wash into our lakes, rivers, streams, and drinking water reservoirs. According to the New York State Department of Environmental Conservation, the use of fertilizers containing phosphorous can double the amount of the nutrient that washes off lawns. Once in the water, excess phosphorus causes rapid algae growth – known as algae blooms – which in turn can produce green slime on water bodies, as well as offensive odor and taste. In addition, algae blooms can deplete oxygen in the water that fish and other aquatic organisms need to survive. In some cases, these blooms produce toxins harmful to humans. In 2015 alone, DEC documented 126 harmful algae blooms in bodies of water across New York, many of which had toxins at levels high enough to cause serious health impacts including nausea, vomiting, skin, eye, and throat irritation, and allergic reactions or breathing difficulties.

According to DEC, phosphorus levels exceed state water quality standards in over 100 waters of the state – including reservoirs in the New York City drinking water watershed, Lake Champlain, Onondaga Lake, Chautauqua Lake, Greenwood Lake, and parts of Lake Ontario.  DEC has identified curbing excess phosphorus-containing fertilizer use on lawns as a key element of its plans to improve the health of many of these waters.

New York enacted the Nutrient Runoff Law specifically to reduce phosphorus runoff from non-agricultural sources. Among its provisions, the law applies to retailers who sell fertilizers that contain more than 0.67 percent phosphate, a form of phosphorus (for reasons involving the measurement of phosphorus in fertilizers, those containing less than 0.67% phosphate are referred to as “phosphorous-free”).  The law requires retailers that sell phosphorus-containing fertilizers intended for use on lawns and other non-agricultural turfs to:

  • display phosphorous-containing fertilizers separately from those containing 0.67 percent or less available phosphorus; and
  • post a clearly-visible sign in the vicinity of phosphorus-containing fertilizers advising consumers about the harm phosphorus runoff has on water quality and the circumstances, under New York law, that phosphorus-containing fertilizer may be legally applied. 

Under New York law, phosphorus-containing fertilizer may only be applied to lawn or non-agricultural turf when:

  • A soil test indicates that additional phosphorus is needed for growth of that lawn or non-agricultural turf; or
  • The fertilizer is used for newly established lawn or non-agricultural turf during the first growing season.

 A retailer who sells phosphorous-containing fertilizers without complying with these requirements is subject to penalties of up to $500 for the first violation and up to $1,000 for each subsequent violation.

This case is being handled by Assistant Attorneys General Brian Lusignan and Michael J. Myers, and Environmental Scientists Jennifer Nalbone and Charles Silver. The Environmental Protection Bureau is led by Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Alvin Bragg.