A.G. Schneiderman Announces Settlement With Walmart Over Alleged Violations Of NYS Water Protection Law

AG Investigation Finds Alleged Violations Of Nutrient Runoff Law In 90% Of Walmart Stores Inspected; Run Off Lawn Fertilizer Containing Phosphorus Causes Algae Blooms That Foul Waterways, Harm Fish, Threaten Public Health

Walmart And Sam’s Club Will Take Phosphorus Lawn Fertilizers Off Shelves

A.G. Schneiderman: Retailers In New York Have Legal Duty To Warn Consumers About Fertilizers That Pollute Our Waters

NEW YORK – Attorney General Eric T. Schneiderman today announced a settlement with Wal-Mart Stores, Inc. over alleged violations of a 2010 state law designed to reduce water pollution caused by excess phosphorus that runs off of  lawns  into New York waters. The Nutrient Runoff Law requires stores to display phosphorous-containing lawn fertilizers separately from those that are phosphorus-free, and post signs notifying consumers about the legal restrictions on using phosphorus-containing lawn fertilizer. An investigation by Attorney General Schneiderman’s Environmental Protection Bureau found that 90% of Walmart stores – 16 of 18 – inspected in New York displayed phosphorus-containing lawn fertilizers without the separation or signage required by the law.

“Clean and healthy water is a precious resource in our state, and one that my office and the law actively protect,” Attorney General Schneiderman said.  “In this case, the law requires retailers to help consumers avoid lawn fertilizers that can harm the public and our environment. We will continue to enforce the law and to keep New York safe today – and for future generations.”

According to Walmart’s company websites, there are over 200 Walmart and Sam’s Club stores (which are owned by Walmart) operating in New York. In July and August of 2014, the Attorney General’s Office inspected 18 Walmart stores across New York that sell fertilizer. At 16 of these stores, the office found that, in violation of the Nutrient Runoff Law, phosphorous-containing fertilizers were commingled with phosphorus-free fertilizers or displayed without the required signage, or both. Follow-up inspections at four Walmart stores, in September 2014, found additional alleged violations. 

The 18 stores AG investigators visited were in Albany (2), Chautauqua (2), Erie (6), Nassau (3), Niagara (2), Rensselaer (1), Rockland (1), and Westchester (1) counties. 

The settlement agreement requires Walmart to comply fully with the Nutrient Runoff Law and pay $98,000 in penalties to New York State for the alleged violations. The company has 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 has decided not to sell phosphorous-containing fertilizers intended for use on lawn or agricultural turf over the internet (at Walmart.com) 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 phosphorus-containing fertilizers can double the amount of phosphorus washing 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 2014 alone, DEC documented 92 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 approximately 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. 

The Attorney General’s investigation of compliance with the Nutrient Runoff Law by other retailers is ongoing.

A full copy of the settlement can be found here

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. Executive Deputy Attorney General for Social Justice is Alvin Bragg.