HOUSE BILL No. 5866 May 14, 1998, Introduced by Reps. Wetters, Harder, Frank, Rhead, Nye, Green, Voorhees, Horton, Middleton, Lowe, Alley, Gernaat, London, Vaughn, Llewellyn, DeVuyst, Jelinek, Gilmer, Brackenridge, Owen and Brewer and referred to the Committee on Agriculture. A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending sections 8501 and 8511 (MCL 324.8501 and 324.8511), as added by 1995 PA 60, and by adding section 8517. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 8501. As used in this part: 2 (a) "Aquifer" means a geologic formation, group of forma- 3 tions, or part of a formation capable of yielding a significant 4 amount of groundwater to wells or springs. 5 (b) "Aquifer sensitivity" means a hydrogeologic function 6 representing the inherent abilities of materials surrounding the 7 aquifer to attenuate the movement of nitrogen fertilizers into 8 that aquifer. 04498'97 LBO 2 1 (c) "Aquifer sensitivity region" means an area in which 2 aquifer sensitivity estimations are sufficiently uniform to 3 warrant their classification as a unit. 4 (d) "Brand or product name" means a term, design, or trade- 5 mark used in connection with 1 or more grades of fertilizer. 6 (e) "Bulk fertilizer" means fertilizer distributed in a non- 7 packaged form. 8 (f) "Custom mixed fertilizer" means a mixed fertilizer for- 9 mulated according to individual specifications furnished by the 10 consumer before mixing. 11 (g) "Department" means the department of agriculture. 12 (H) "DIRECTOR" MEANS THE DIRECTOR OF THE DEPARTMENT OF AGRI- 13 CULTURE OR HIS OR HER DESIGNEE. 14 (I)(h)"Distribute" means to import, consign, sell, 15 barter, offer for sale, solicit orders for sale, or otherwise 16 supply fertilizer for sale or use in this state. 17 (J)(i)"Fertilizer" means a substance containing 1 or 18 more recognized plant nutrients, which substance is used for its 19 plant nutrient content and which is designed for use, or claimed 20 to have value, in promoting plant growth. Fertilizer does not 21 include unmanipulated animal and vegetable manures, marl, lime, 22 limestone, wood ashes, and other materials exempted by rules 23 promulgated under this part. 24 (K)(j)"Fertilizer material" means any substance contain- 25 ing any recognized plant nutrient, which is used as a fertilizer 26 or for compounding mixed fertilizers. 04498'97 3 1 (l)(k)"Grade" means the percentage guarantee of total 2 nitrogen, available phosphorus, or available phosphoric acid, 3 PWOT, and soluble potassium, or soluble potash, KWO, of a fertil- 4 izer and shall be stated in the same order as listed in this 5 subdivision. Indication of grade does not apply to peat or peat 6 moss or soil conditioners. 7 (M)(l)"Groundwater" means underground water within the 8 zone of saturation. 9 (N)(m)"Groundwater stewardship practices" means any of a 10 set of voluntary practices adopted by the commission of agricul- 11 ture pursuant to part 87, designed to protect groundwater from 12 contamination by fertilizers. 13 (O)(n)"Guaranteed analysis" means the minimum percentage 14 of each plant nutrient guaranteed or claimed to be present. 15 (P)(o)"Label" means any written, printed, or graphic 16 matter on or attached to packaged fertilizer or used to identify 17 fertilizer distributed in bulk or held in bulk storage. 18 (Q)(p)"Labeling" means all labels and other written, 19 printed, or graphic matter upon or accompanying fertilizer at any 20 time, and includes advertising or sales literature. 21 (R)(q)"Manufacture" means to process, granulate, com- 22 pound, produce, mix, blend, or alter the composition of fertil- 23 izer or fertilizer materials. 24 (S)(r)"Maximum contaminant level" means that term as it 25 is defined in title XIV of the public health service act, chapter 26 373, 88 Stat. 1660, and the regulations promulgated under that 27 act. 04498'97 4 1 (T)(s)"Mixed fertilizer" means a fertilizer containing 2 any combination or mixture of fertilizer materials designed for 3 use or claimed to have value in promoting plant growth, including 4 mixtures of fertilizer and pesticide. 5 (U)(t)"Nitrogen fertilizer" means a fertilizer that con- 6 tains nitrogen as a component. 7 (V)(u)"Official sample" means a sample of fertilizer 8 taken by a representative of the department of agriculture in 9 accordance with acceptable methods. 10 (W) "ORDER" MEANS A CEASE AND DESIST ORDER ISSUED UNDER SEC- 11 TION 8511. 12 (X)(v)"Package" or "packaged" means any type of product 13 regulated by this part that is distributed in individual contain- 14 ers with a capacity not exceeding 55 gallons for liquids and not 15 exceeding 200 pounds for solids. 16 (Y)(w)"Percent" and "percentage" mean the percentage by 17 weight. 18 (Z)(x)"Soil conditioner" means a substance that is used 19 or intended for use solely for the improvement of the physical 20 nature of soil and for which no claims are made for plant nutri- 21 ents content. Soil conditioner does not include guaranteed plant 22 nutrients, hormones, bacterial inoculants, and products used in 23 directly influencing or controlling plant growth. 24 (AA)(y)"Specialty fertilizer" means any fertilizer dis- 25 tributed primarily for nonfarm use, such as use in connection 26 with home, gardens, lawns, shrubbery, flowers, golf courses, 04498'97 5 1 parks, and cemeteries, and may include fertilizers used for 2 research or experimental purposes. 3 (BB)(z)"Ton" means a net ton of 2,000 pounds 4 avoirdupois. 5 (CC)(aa)"Use" means the loading, mixing, applying, stor- 6 ing, transporting, or disposing of a fertilizer. 7 Sec. 8511. (1) The director,of the department,by a duly 8 authorized agent, may select from any package or bulk lot of com- 9 mercial fertilizer or soil conditioner exposed for sale in this 10 state a sample to be used for the purposes of an official analy- 11 sis for comparison with the label affixed to the package or bulk 12 lot on sale. The directorof the department, his or her deputy,13or an authorized agent of the director of the department,may at 14 any time ORDER A PERSON TO CEASE AND DESIST FROM MANUFACTURING, 15 STORING, DISTRIBUTING, SELLING, OR REGISTERING A PRODUCT REGU- 16 LATED BY THIS PART, OR MAY seize or stop the sale of a fertilizer 17 or soil conditioner that is misbranded OR ADULTERATED, fails to 18 meet a LABEL CLAIM OR guarantee, is being manufactured or dis- 19 tributed by an unlicensed person, or otherwise fails to comply 20 with this part. 21 (2) AN ORDER SHALL BE WRITTEN AND SHALL INFORM THE MANUFAC- 22 TURER, STORAGE OPERATOR, DISTRIBUTOR, SELLER, OR REGISTRANT OF 23 THE GROUNDS FOR ISSUANCE OF THE ORDER. THE PERSON RECEIVING THE 24 ORDER SHALL IMMEDIATELY COMPLY WITH THE ORDER. FAILURE TO COMPLY 25 SHALL SUBJECT THE PERSON TO THE PENALTY IMPOSED UNDER SECTION 26 8517. 04498'97 6 1 (3) THE DIRECTOR SHALL RESCIND THE ORDER IMMEDIATELY UPON 2 BEING SATISFIED BY INSPECTION OF COMPLIANCE WITH THE ORDER. THE 3 INSPECTION SHALL BE CONDUCTED AS SOON AS POSSIBLE AT THE VERBAL 4 OR WRITTEN REQUEST OF THE RESPONSIBLE PARTY. THE RESCINDING 5 ORDER OF THE DIRECTOR MAY BE VERBAL AND THE PERSON MAY RELY ON 6 THE VERBAL RESCINDING ORDER. HOWEVER, A VERBAL ORDER SHALL BE 7 FOLLOWED BY A WRITTEN RESCINDING ORDER. 8 (4) THE DIRECTOR MAY ISSUE AND ENFORCE A WRITTEN ORDER PRO- 9 HIBITING THE SALE, USE, OR REMOVAL OF A PRODUCT REGULATED BY THIS 10 PART TO THE OWNER OR CUSTODIAN OF ANY PRODUCT OR PRODUCT LOT AND 11 REQUIRING THE PRODUCT TO BE HELD BY THE OWNER OR CUSTODIAN AT A 12 DESIGNATED PLACE WHEN THE DIRECTOR FINDS THAT THE PRODUCT IS 13 BEING DISTRIBUTED IN VIOLATION OF THIS PART. THE ORDER REMAINS 14 IN EFFECT UNTIL THE DIRECTOR DETERMINES THAT THE PERSON IS COM- 15 PLYING WITH THE LAW OR UNTIL THE VIOLATION HAS BEEN OTHERWISE 16 LEGALLY DISPOSED OF BY WRITTEN AUTHORITY. THE DIRECTOR SHALL 17 RELEASE THE PRODUCT FOR SALE, USE, OR REMOVAL UPON COMPLIANCE 18 WITH THIS PART AND PAYMENT OF ALL COSTS AND EXPENSES INCURRED IN 19 CONNECTION WITH THE ISSUANCE AND ENFORCEMENT OF THE ORDER. 20 (5) ANY PRODUCT OR PRODUCT LOT NOT IN COMPLIANCE WITH THIS 21 PART IS SUBJECT TO SEIZURE UPON AN ACTION FILED BY THE DIRECTOR 22 IN A COURT OF COMPETENT JURISDICTION IN THE COUNTY IN WHICH THE 23 PRODUCT IS LOCATED. IF THE COURT FINDS THE PRODUCT TO BE IN VIO- 24 LATION OF THIS PART AND ORDERS THE CONDEMNATION OF THE PRODUCT, 25 THE PRODUCT SHALL BE DISPOSED OF IN ANY MANNER CONSISTENT WITH 26 THE QUALITY OF THE PRODUCT AND THE LAWS OF THIS STATE EXCEPT THAT 27 THE DISPOSITION OF THE PRODUCT SHALL NOT BE ORDERED BY THE COURT 04498'97 7 1 WITHOUT FIRST PROVIDING THE CLAIMANT AN OPPORTUNITY TO PETITION 2 THE COURT FOR RELEASE OF THE PRODUCT OR FOR PERMISSION TO PROCESS 3 OR RELABEL THE PRODUCT TO BRING IT INTO COMPLIANCE WITH THIS 4 PART. 5 SEC. 8517. (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SEC- 6 TION, IT IS THE EXPRESS LEGISLATIVE INTENT THAT THIS PART PREEMPT 7 ANY LOCAL ORDINANCE, REGULATION, OR RESOLUTION THAT PURPORTS TO 8 DUPLICATE, EXTEND, OR REVISE IN ANY MANNER THE PROVISIONS OF THIS 9 PART. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS SECTION, A LOCAL 10 UNIT OF GOVERNMENT SHALL NOT ENACT, MAINTAIN, OR ENFORCE AN ORDI- 11 NANCE, REGULATION, OR RESOLUTION THAT CONTRADICTS OR CONFLICTS IN 12 ANY MANNER WITH THIS PART. 13 (2) IF A LOCAL UNIT OF GOVERNMENT IS UNDER CONTRACT WITH THE 14 DEPARTMENT TO ACT AS ITS AGENT OR THE LOCAL UNIT OF GOVERNMENT 15 HAS RECEIVED PRIOR WRITTEN AUTHORIZATION FROM THE DEPARTMENT, 16 THAT LOCAL UNIT OF GOVERNMENT MAY ENACT AN ORDINANCE THAT IS 17 IDENTICAL TO THIS PART AND RULES PROMULGATED UNDER THIS PART. 18 THE LOCAL UNIT OF GOVERNMENT'S ENFORCEMENT RESPONSE FOR A VIOLA- 19 TION OF THE ORDINANCE THAT INVOLVES THE MANUFACTURING, STORAGE, 20 DISTRIBUTION, SALE, OR REGISTRATION OF PRODUCTS REGULATED BY THE 21 ORDINANCE OR LICENSING OF A MANUFACTURING FACILITY IS LIMITED TO 22 ISSUING A CEASE AND DESIST ORDER IN THE MANNER PRESCRIBED IN SEC- 23 TION 8511. 24 (3) A LOCAL UNIT OF GOVERNMENT MAY ENACT AN ORDINANCE PRE- 25 SCRIBING STANDARDS DIFFERENT FROM THOSE CONTAINED IN THIS PART 26 AND RULES PROMULGATED UNDER THIS PART AND THAT REGULATES THE 27 MANUFACTURING, STORAGE, DISTRIBUTION, SALE, OR REGISTRATION OF A 04498'97 8 1 PRODUCT REGULATED BY THIS PART UNDER EITHER OR BOTH OF THE 2 FOLLOWING CIRCUMSTANCES: 3 (A) UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT OR 4 PUBLIC HEALTH WILL EXIST WITHIN THE LOCAL UNIT OF GOVERNMENT. 5 THE DETERMINATION THAT UNREASONABLE ADVERSE EFFECTS ON THE ENVI- 6 RONMENT OR PUBLIC HEALTH WILL EXIST SHALL TAKE INTO CONSIDERATION 7 SPECIFIC POPULATIONS WHOSE HEALTH MAY BE ADVERSELY AFFECTED 8 WITHIN THAT LOCAL UNIT OF GOVERNMENT. 9 (B) THE LOCAL UNIT OF GOVERNMENT HAS DETERMINED THAT THE 10 MANUFACTURING, STORAGE, DISTRIBUTION, SALE, OR REGISTRATION OF A 11 PRODUCT REGULATED BY THIS PART WITHIN THAT UNIT OF GOVERNMENT HAS 12 RESULTED OR WILL RESULT IN THE VIOLATION OF OTHER EXISTING STATE 13 OR FEDERAL LAWS. 14 (4) AN ORDINANCE ENACTED PURSUANT TO SUBSECTIONS (2) AND (3) 15 SHALL NOT CONFLICT WITH EXISTING STATE LAWS OR FEDERAL LAWS. AN 16 ORDINANCE ENACTED PURSUANT TO SUBSECTION (3) SHALL NOT BE 17 ENFORCED BY A LOCAL UNIT OF GOVERNMENT UNTIL APPROVED BY THE COM- 18 MISSION OF AGRICULTURE. THE COMMISSION OF AGRICULTURE SHALL PRO- 19 VIDE A DETAILED EXPLANATION OF THE BASIS OF THE DENIAL WITHIN 60 20 DAYS. 21 (5) UPON IDENTIFICATION OF UNREASONABLE ADVERSE EFFECTS ON 22 THE ENVIRONMENT OR PUBLIC HEALTH BY A LOCAL UNIT OF GOVERNMENT AS 23 EVIDENCED BY A RESOLUTION SUBMITTED TO THE DEPARTMENT, THE 24 DEPARTMENT SHALL HOLD A LOCAL PUBLIC MEETING WITHIN 60 DAYS AFTER 25 THE SUBMISSION OF THE RESOLUTION TO DETERMINE THE NATURE AND 26 EXTENT OF UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT OR 27 PUBLIC HEALTH DUE TO THE USE OR STORAGE OF FERTILIZERS. WITHIN 04498'97 9 1 30 DAYS AFTER THE LOCAL PUBLIC MEETING, THE DEPARTMENT SHALL 2 ISSUE A DETAILED OPINION REGARDING THE EXISTENCE OF UNREASONABLE 3 ADVERSE EFFECTS ON THE ENVIRONMENT OR PUBLIC HEALTH AS IDENTIFIED 4 BY THE RESOLUTION OF THE LOCAL UNIT OF GOVERNMENT. 5 (6) THE DIRECTOR MAY CONTRACT WITH A LOCAL UNIT OF GOVERN- 6 MENT TO ACT AS ITS AGENT FOR THE PURPOSE OF ENFORCING THIS PART 7 AND THE RULES PROMULGATED UNDER THIS PART. THE DEPARTMENT SHALL 8 HAVE SOLE AUTHORITY TO ASSESS FEES, REGISTER FERTILIZER OR SOIL 9 CONDITIONER PRODUCTS, CANCEL OR SUSPEND REGISTRATIONS, AND REGU- 10 LATE AND ENFORCE ALL PROVISIONS OF THIS PART. 11 (7) FOR ANY ORDINANCE ENACTED PURSUANT TO THIS SECTION, THE 12 LOCAL UNIT OF GOVERNMENT SHALL PROVIDE THAT PERSONS ENFORCING THE 13 ORDINANCE COMPLY WITH THE TRAINING AND ENFORCEMENT REQUIREMENTS 14 AS DETERMINED APPROPRIATE BY THE DIRECTOR. A LOCAL UNIT OF GOV- 15 ERNMENT SHALL REIMBURSE THE DEPARTMENT FOR ACTUAL COSTS INCURRED 16 IN TRAINING LOCAL GOVERNMENT PERSONNEL. 04498'97 Final page. LBO