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Erie County lawmakers to sort through conflicting legal opinions regarding microbead law

The Erie County Legislature delayed efforts Thursday to void its law banning microbead products. The law, which takes effect Feb. 14, will prohibit stores from selling face- and body-care products containing the tiny plastic particles.

The Legislature had been expected to nullify the trend-setting law because it conflicts with a federal law that gives companies until mid-2017 to come up with microbead-free products.

Instead, the Legislature voted 7-4 to send the matter to a legislative committee, with legislators Kevin Hardwick, R-City of Tonawanda, and Lynne Dixon, I-Hamburg, breaking with the Republican coalition to vote with the Democratic minority on the environmental issue.

Since President Obama signed the Microbead-Free Waters Act into law in December, Legislature Chairman John Mills, R-Orchard Park, said he’s heard from industry lobbyists who question whether they are supposed to work under the rules of the federal law or the rules of the Erie County law.

Hardwick said he’s troubled that the federal law allows retailers to continue selling products with microbeads until Jan. 1, 2018. Beauty product manufacturers would be required to stop producing microbead-containing products by July 2017 under the federal law.

In contrast, the county law would force retailers to stop selling all microbead products by Feb. 14, he said.

A section of the county microbead ban law states the county law is “null and void” if the state or federal government passes a law with “substantially similar provisions.” County Attorney Michael Siragusa, however, issued a legal opinion saying the county law and federal law are not substantially similar.

His opinion this week came shortly before the New York State Association of Counties honored County Executive Mark C. Poloncarz at its annual conference for his “water quality leadership” and his support for the local microbead-ban legislation.

In response to Siragusa’s legal opinion, a lawyer representing the Personal Care Products Council sent Siragusa a seven-page rebuttal stating that language in the federal act explicitly states that no local or state microbeads law may supersede the federal law unless its provisions are identical to the federal law.

Hardwick said the matter will be further reviewed in his Government Affairs Committee next week. Legal representatives on both sides will be given the opportunity to weigh in.

Because of Thursday’s actions, the soonest the Legislature could vote on whether to void its own microbead law is Feb. 18. That leaves the possibility that retailers might be required to take microbead products off the shelves on the 14th, then, if the Legislature ultimately votes to void its law, retailers could restock their shelves with the same products four days later.

Environmentalists raised concerns after a 2013 study showed how the particles make it through sewage filtration systems and wind up in the Great Lakes. The New York State attorney general also released a study last year showing that microbeads passed straight through sewage filters and into area waterways. Fish also mistake microbeads for food.