SB-0840, As Passed Senate, December 14, 2006
SUBSTITUTE FOR
SENATE BILL NO. 840
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 8501, 8502, 8503, 8505, 8506, 8507, 8509,
8510, and 8514 (MCL 324.8501, 324.8502, 324.8503, 324.8505,
324.8506, 324.8507, 324.8509, 324.8510, and 324.8514), section 8501
as amended by 1998 PA 276 and sections 8502, 8503, 8505, 8506,
8507, 8509, 8510, and 8514 as added by 1995 PA 60, and by adding
sections 8501a, 8519, 8520, 8521, and 8522.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 8501. As used in this part:
(a) "Adulterated product" means a product which contains any
deleterious or harmful substance in sufficient amount to render it
injurious to beneficial plant life, animals, humans, aquatic life,
soil or water when applied in accordance with directions for use on
the label, or if adequate warning statements or directions for use
which may be necessary to protect plant life, animals, humans,
aquatic life, soil or water are not shown on the label.
(b) "Aquifer" means a geologic formation, group of formations,
or part of a formation capable of yielding a significant amount of
groundwater to wells or springs.
(c) "Aquifer sensitivity" means a hydrogeologic function
representing the inherent abilities of materials surrounding the
aquifer to attenuate the movement of nitrogen fertilizers into that
aquifer.
(d) "Aquifer sensitivity region" means an area in which
aquifer sensitivity estimations are sufficiently uniform to warrant
their classification as a unit.
(e) "Brand or product name" means a term, design, or trademark
used in connection with 1 or more grades of fertilizer.
(f) "Bulk fertilizer" means fertilizer distributed in a
nonpackaged form.
(g)
"Custom mixed fertilizer blend" means a mixed
fertilizer
formulated blended according to individual
specifications
furnished by the consumer before mixing provided
to a blender in a soil test nutrient recommendation or blended as
specifically requested by the consumer prior to blending.
(h) "Department" means the department of agriculture.
(i) "Director" means the director of the department of
agriculture or his or her designee.
(j) "Distribute" means to import, consign, sell, barter, offer
for sale, solicit orders for sale, or otherwise supply fertilizer
for sale or use in this state.
(k) "Distributor" means any person who distributes fertilizer
for sale or use in this state.
(l) (k)
"Fertilizer" means a
substance containing 1 or more
recognized plant nutrients, which substance is used for its plant
nutrient content and which is designed for use, or claimed to have
value, in promoting plant growth. Fertilizer does not include
unmanipulated animal and vegetable manures, marl, lime, limestone,
wood ashes, and other materials exempted by rules promulgated under
this part.
(m) (l) "Fertilizer
material" means any substance containing
any
recognized plant nutrient, which is used as a fertilizer or
for
compounding mixed fertilizers. that is any of the following:
(i) Contains not more than 1 of the following as primary
nutrients:
(A) Total nitrogen (N).
(B) Available phosphate (P2O5).
(C) Soluble potash (K2O).
(ii) Has 85% or more of its plant nutrient content present in
the form of a single chemical compound.
(iii) Is derived from a plant or animal residue or by-product or
natural material deposit which has been processed in such a way
that its content of plant nutrients has not been materially changed
except by purification and concentration.
(n) "Fund" means the fertilizer control fund created under
section 8514.
(o) (m)
"Grade" means the
percentage guarantee of total
nitrogen (N), available
phosphorus, or available phosphoric
acid,
P2O5 phosphate
(P2O5), and soluble
potassium, or soluble
potash,
K2O soluble potash (K2O), of a fertilizer and shall be
stated
in the same order as listed given in this subdivision.
Indication of grade does not apply to peat or peat moss or soil
conditioners.
(p) (n)
"Groundwater" means
underground water within the
zone of saturation.
(q) (o)
"Groundwater stewardship
practices" means any of a
set of voluntary practices adopted by the commission of agriculture
pursuant to part 87, designed to protect groundwater from
contamination by fertilizers.
(r) (p)
"Guaranteed analysis"
means the minimum percentage
of each plant nutrient guaranteed or claimed to be present.
(s) (q)
"Label" means any
written, printed, or graphic
matter on or attached to packaged fertilizer or used to identify
fertilizer distributed in bulk or held in bulk storage.
(t) (r)
"Labeling" means all
labels and other written,
printed, electronic, or graphic matter upon or accompanying any
fertilizer
at any time, and includes advertising, or sales
literature, brochures, posters, and internet, television, and radio
announcements used in promoting the sale of that fertilizer.
(u) "Licensee" means the person who receives a license to
manufacture or distribute fertilizers under this part.
(v) "Lot" means an identifiable quantity of fertilizer that
can be sampled officially according to methods adopted under
section 8510, that amount contained in a single vehicle, or that
amount delivered under a single invoice.
(w) (s)
"Manufacture" means to
process, granulate, compound,
produce, mix, blend, or alter the composition of fertilizer or
fertilizer materials.
(t)
"Maximum contaminant level" means that term as it is
defined
in title XIV of the public health service act, chapter 373,
88
Stat. 1660, and the regulations promulgated under that act.
(u)
"Mixed fertilizer" means a fertilizer containing any
combination
or mixture of fertilizer materials designed for use or
claimed
to have value in promoting plant growth, including mixtures
of
fertilizer and pesticide.
(v)
"Nitrogen fertilizer" means a fertilizer that contains
nitrogen
as a component.
(w)
"Official sample" means a sample of fertilizer taken by a
representative
of the department of agriculture in accordance with
acceptable
methods.
(x)
"Order" means a cease and desist order issued under
section
8511.
(y)
"Package" or "packaged" means any type of product
regulated
by this part that is distributed in individual containers
with
a capacity not exceeding 55 gallons for liquids and not
exceeding
200 pounds for solids.
(z)
"Percent" and "percentage" mean the percentage by weight.
(aa)
"Soil conditioner" means a substance that is used or
intended
for use solely for the improvement of the physical nature
of
soil and for which no claims are made for plant nutrients
content.
Soil conditioner does not include guaranteed plant
nutrients,
hormones, bacterial inoculants, and products used in
directly
influencing or controlling plant growth.
(bb)
"Specialty fertilizer" means any fertilizer distributed
primarily
for nonfarm use, such as use in connection with home,
gardens,
lawns, shrubbery, flowers, golf courses, parks, and
cemeteries,
and may include fertilizers used for research or
experimental
purposes.
(cc)
"Ton" means a net ton of 2,000 pounds avoirdupois.
(dd)
"Use" means the loading, mixing, applying, storing,
transporting,
or disposing of a fertilizer.
Sec. 8501a. As used in this part:
(a) "Mixed fertilizer" means a fertilizer containing any
combination or mixture of fertilizer materials.
(b) "Nitrogen fertilizer" means a fertilizer that contains
nitrogen as a component.
(c) "Official sample" means a sample of fertilizer taken by a
representative of the department of agriculture in accordance with
acceptable sampling methods under section 8510.
(d) "Order" means a cease and desist order issued under
section 8511.
(e) "Package" or "packaged" means any type of product
regulated by this part that is distributed in individual labeled
containers.
(f) "Percent" and "percentage" mean the percentage by weight.
(g) "Person" means an individual, partnership, association,
firm, limited liability company, or corporation.
(h) "Primary nutrients" means total nitrogen, available
phosphate, or soluble potash, or any combination of those
nutrients.
(i) "Registrant" means the person who registers a product
under this part.
(j) "Soil conditioner" means any substance that is used or
intended for use to improve the physical characteristics of soil,
including, but not limited to, materials such as peat moss and peat
products, composted products, synthetic soil conditioners, or other
products that are worked into the soil or are applied on the
surface to improve the properties of the soil for enhancing plant
growth. Soil conditioner does not include guaranteed plant
nutrients, agricultural liming materials, pesticides, unmanipulated
animal or vegetable manures, hormones, bacterial inoculants, and
products used in directly influencing or controlling plant growth.
A soil conditioner for which claims are made of nutrient value is
considered a fertilizer for the purposes of this part.
(k) "Specialty fertilizer" means any fertilizer distributed
primarily for nonfarm use, such as use in connection with home,
gardens, lawns, shrubbery, flowers, golf courses, parks, and
cemeteries, and may include fertilizers used for research or
experimental purposes.
(l) "Ton" means a net weight of 2,000 pounds avoirdupois.
(m) "Use" means the loading, mixing, applying, storing,
transporting, or disposing of a fertilizer.
Sec. 8502. (1) A packaged fertilizer distributed in this
state,
including packaged custom mixed fertilizer and soil
conditioner, shall have placed on or affixed to the package or
container a label setting forth in clearly legible and conspicuous
form
all of the following:
(a) The net weight of the contents of the package, except that
soil
conditioners, peat, or
peat moss shall may be designated by
volume.
(b) Brand or product name.
(c) Name and address of the licensed manufacturer or
distributor.
(d) Grade. However, the grade is not required when no primary
nutrients are claimed. This subdivision does not apply to peat or
peat
moss, or material sold as a soil conditioner, or fertilizer
for which no primary nutrients are claimed.
(e) Guaranteed analysis. This subdivision does not apply to
peat or peat moss or material sold as a soil conditioner.
(2) A fertilizer distributed in this state in bulk, except a
custom blend, shall be accompanied by a written or printed invoice
or statement to be furnished to the purchaser at the time of
delivery
containing in clearly legible and conspicuous form all of
the following information:
(a) Name and address of the licensed manufacturer or
distributor.
(b) Name and address of purchaser.
(c) Date of sale.
(d) Brand or product name.
(e) Grade. However, the grade is not required when no primary
nutrients are claimed.
(f) Guaranteed analysis.
(g) Net weight.
(3) A custom blend shall be accompanied by a written or
printed invoice or statement to be furnished to the purchaser at
the time of delivery containing in clearly legible and conspicuous
form the following information:
(a) Name and address of the licensed manufacturer or
distributor.
(b) Name and address of purchaser.
(c) Date of sale.
(d) Either the net weight and guaranteed analysis of the
custom blend or the guaranteed analysis and net weight of each
material used in the formulation of the custom blend or both.
(4) (3)
Fertilizer in bulk storage shall
be identified with
a label attached to the storage bin or container giving the name
and address of the licensed manufacturer or distributor and the
name and grade of the product.
Sec.
8503. (1) The guaranteed analysis for the primary
nutrients
of nitrogen, available phosphoric acid, P2O5, and soluble
potash,
K2O, shall be expressed as whole numbers on the label shall
show the minimum percentage of plant nutrients claimed in the
following order and form:
(a) Total
nitrogen , N (N). _____%
Available
phosphoric acid, P2O5 phosphate (P2O5). _____%
Soluble
potash , K2O (K2O). _____%
(2)
A mixed fertilizer may not be sold if the sum of the
guarantees
for the nitrogen, available phosphoric acid, and soluble
potash
totals less than 20%, except specialty fertilizers permitted
to
be sold by product registration issued by the department.
(3)
If elemental guarantees are required by rules, as
authorized
by section 8516, the guaranteed analysis shall be
expressed
in terms of percentage of available phosphorus, P, and
soluble
potassium, K.
(b) When applied to mixed fertilizers, grade shall be given in
whole numbers only. However, specialty fertilizers with a guarantee
of less than 1% of total nitrogen, available phosphate, and soluble
potash may use fractional units. Fertilizer materials, bone meal,
manures, and similar materials may be guaranteed in fractional
units.
(c) When applied to custom blends, grade can either be given
in whole numbers or in numbers expressed to the nearest 1/10 of a
percent in the form of a decimal in the analysis.
(d) For unacidulated mineral phosphatic material and basic
slag, bone, tankage, and other organic phosphatic materials, the
total phosphate or degree of fineness, or both, may also be
guaranteed.
(2) (4)
Additional plant nutrients, other
than nitrogen,
phosphorus, and potassium, claimed to be present in any form or
manner shall be guaranteed on the elemental basis, at levels not
less
than those established by rules. The materials shall be
approved
by the director of the department, by and with the advice
of
the director of the Michigan agricultural experiment station.
Other beneficial compounds or substances, determinable by
laboratory methods, may be guaranteed if approved by the director.
Sec. 8505. (1) A person shall not distribute a specialty
fertilizer
or soil conditioner until unless
it is registered by
the
manufacturer or distributor with
the department. and the
appropriate
groundwater protection fees provided for in section
8715
have been submitted. An
application in duplicate listing
each brand and product name of each grade of specialty fertilizer
or soil conditioner shall be made on a form furnished by the
director
and shall be accompanied with a fee of $25.00 the fees
described in subsection (2) for each brand and product name of each
grade. Labels for each brand and product name of each grade shall
accompany the application. Upon approval of an application by the
director, a copy of the registration approval shall be furnished to
the applicant. All registrations expire on December 31 of each
year.
(2) A person applying for a registration under subsection (1)
shall pay the following annual fees for each brand and product name
of each grade:
(a) Registration fee of $25.00.
(b) Appropriate groundwater and freshwater protection fees
provided for in section 8715.
(3) A distributor is not required to register a brand of
fertilizer that is registered under this part by another person, if
the label does not differ in any respect.
(4) A manufacturer or distributor of custom blend specialty
fertilizers for home lawns, golf courses, recreational areas, or
other nonfarm areas shall not be required to register each grade
distributed but shall license their firm on an application
furnished by the director for an annual fee of $100.00 and shall
label the fertilizer as provided in section 8502. The label of each
fertilizer distributed under this subsection shall be maintained by
the manufacturer or distributor for 1 year for inspection by the
director.
(5) A manufacturer or distributor of soil conditioners blended
according to specifications provided to a blender or blended as
specifically requested by the consumer prior to blending shall
either register each brand or blend distributed or license its firm
on an application furnished by the director for an annual fee of
$100.00 and shall label the soil conditioner as provided in section
8502. The label of each soil conditioner distributed under this
subsection shall be maintained by the manufacturer or distributor
for 1 year for inspection by the director.
Sec. 8506. (1) An inspection fee of 10 cents per ton shall be
paid to the department for all fertilizers or soil conditioners
sold or distributed in this state. For peat or peat moss, the
inspection fee shall be 2 cents per cubic yard. This fee shall not
apply to registered specialty fertilizers or soil conditioners sold
or distributed only in packages of 10 pounds or less.
(2) Payment of the inspection fee shall be made on the basis
of tonnage reports setting forth the number of tons of each grade
of fertilizer and soil conditioner and the number of cubic yards of
peat or peat moss sold or distributed in this state. The reports
shall cover the periods of the year and be made in a manner
specified
by the director of the department in
rules, and shall
be filed with the department not later than 30 days after the close
of each period. The time may be extended for cause for an
additional 15 days only on written request to, and approval by, the
department. Remittance to cover the inspection fee shall accompany
each
tonnage report. Payments due of less than $1.00 $5.00 are
waived, or and refunds resulting
from overpayment of less than
$1.00,
are waived $5.00 will not be processed, unless requested
in
writing. A penalty of 10% of the amount due, with a
minimum of
$10.00,
shall be assessed against the licensee for all amounts not
paid
when due. For any report not filed with the department
by the
due date, a penalty of $50.00 or 10% of the amount due, whichever
is greater, shall be assessed. Unpaid fees and penalties constitute
a debt and become the basis of a judgment against the licensee.
Records upon which the statement of tonnage is based are subject to
department audit.
(3) When more than 1 person is involved in the distribution of
fertilizer or soil conditioners, the last person who is licensed or
has the fertilizer or soil conditioner registered and who
distributes to a nonlicensee or nonregistrant is responsible for
reporting the tonnage and paying the inspection fee.
Sec. 8507. (1) Each licensee and registrant shall maintain for
a period of 3 years a record of quantities and grades of fertilizer
and soil conditioner sold or distributed by the licensee or
registrant and shall make the records available for inspection and
audit during normal business hours on request of the department.
Each
vendor of fertilizer and soil conditioner distributor shall
maintain for a period of 3 years shipping data such as invoices and
freight bills pertaining to fertilizer and soil conditioner that
establish date and origin of the shipment, and shall make the
records available for inspection and audit on request of the
department.
(2) Tonnage payments, tonnage reports, or other information
furnished or obtained under this part shall not be disclosed in a
way
that will divulge the business operations of any one 1
person.
Sec. 8509. A person shall not do any of the following:
(a) Sell or distribute fertilizer or soil conditioner in
violation of the requirements of this part or the rules promulgated
under this part.
(b) Make a guarantee, claim, or representation in connection
with
the sale of fertilizer or soil conditioner, or in their its
labeling, which is false, deceptive, or misleading.
(c) Manufacture or distribute a fertilizer or soil conditioner
without a license as required by this part or distribute a
specialty fertilizer or soil conditioner unless registered as
required by this part.
(d) Make a false or misleading statement in an application for
a license or in an inspection fee or statistical report or in any
other statement or report filed with the department pursuant to
this part.
(e) Attach or cause to be attached an analysis stating that a
fertilizer contains a higher percentage of a plant nutrient than it
in fact contains.
(f) Distribute an adulterated product.
Sec.
8510. (1) The department director shall inspect,
sample, and analyze fertilizers and soil conditioners distributed
within this state at a time and place and to the extent necessary
to determine compliance with this part.
(2) The methods of sampling and analysis under subsection (1)
shall be those as established by the association of American plant
food control officials or the association of analytical
communities, international, as those standards exist on the
effective date of the amendatory act that added this subsection,
and are incorporated by reference. The department may promulgate
rules to update these standards. In cases not covered by such
methods, or in cases where methods are available in which improved
applicability has been demonstrated, the director may adopt, by
rule, such other methods as are considered appropriate.
(3) (2)
Department representatives and
inspectors shall have
free access during regular business hours and extended operating
hours to all premises where fertilizers or soil conditioners are
manufactured, sold, or stored, and to all trucks or other vehicles
and vessels used in the transportation of a fertilizer or soil
conditioner in this state, to determine compliance with this part.
Department representatives and inspectors may stop any conveyance
transporting fertilizer or soil conditioner for the purpose of
inspecting and sampling the products and examining their labeling.
(4) (3)
A manufacturer or distributor of
fertilizer or soil
conditioner shall submit to the department, upon request, product
samples, copies of labeling, or any other data or information that
the department may request concerning composition and claims and
representations made for fertilizers and soil conditioners
manufactured or distributed by the manufacturer or distributor
within this state.
(5) (4)
The director may, upon reasonable
notice, require a
person to furnish any information relating to the identification,
nature, and quantity of fertilizers that are or have been used on a
particular site and to current or past practices that may have
affected groundwater quality. Information required under this
subsection is confidential business information and is not subject
to
the freedom of information act, Act No. 442 of the Public Acts
of
1976, being sections 15.231 to 15.246 of the Michigan Compiled
Laws
1976 PA 442, MCL 15.231 to 15.246.
Sec. 8514.
A person who violates this part is
guilty of a
misdemeanor.
A person who violates this part is liable for all
damages
sustained by a purchaser of a product sold in violation of
this
part. In an enforcement action, a court, in addition to other
penalties
provided by law, may order restitution to a party injured
by
the purchase of a product sold in violation of this part.
(1) The fertilizer control fund is created within the state
treasury.
(2) The state treasurer shall receive for deposit in the fund
all fees, administrative or civil fines, and payments for the costs
of investigations incurred by the department collected under this
part. In addition, the state treasurer may receive money or other
assets from any source for deposit into the fund. The state
treasurer shall direct the investment of the fund. The state
treasurer shall credit to the fund interest and earnings from fund
investments.
(3) Money in the fund at the close of the fiscal year shall
remain in the fund and shall not lapse to the general fund.
(4) The department shall expend money from the fund, upon
appropriation, only for 1 or more of the following purposes:
(a) The administration and enforcement of this part.
(b) The development of training programs to ensure the proper
use and storage of fertilizer.
Sec. 8519. A person aggrieved by an order issued pursuant to
this part may request a hearing pursuant to the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
Sec. 8520. (1) A person who violates this part or rules
promulgated under this part is subject to the penalties and
remedies provided in this part regardless of whether he or she
acted directly or through an employee or agent.
(2) The director, upon finding after notice and an opportunity
for an administrative hearing that a person has violated or
attempted to violate any provision of this part or a rule
promulgated under this part, may impose an administrative fine of
not more than $1,000.00 for each violation or attempted violation.
(3) If the director finds that a violation or attempted
violation has occurred despite the exercise of due care or did not
result in significant harm to human health or the environment, the
director may issue a warning instead of imposing an administrative
fine.
(4) The director shall advise the attorney general of the
failure of any person to pay an administrative fine imposed under
this section. The attorney general shall bring an action in a court
of competent jurisdiction to recover the fine.
(5) A person who violates this part or a rule promulgated
under this part, or attempts to violate this part or a rule
promulgated under this part, is guilty of a misdemeanor punishable
by imprisonment for not more than 90 days or a fine of not more
than $5,000.00 for each violation or attempted violation, in
addition to any administrative fines imposed.
(6) A person who knowingly and with malicious intent violates
this part or a rule promulgated under this part is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days or
a fine of not more than $25,000.00 for each offense.
(7) The director may bring an action to enjoin the violation
or threatened violation of this part or a rule promulgated under
this part in a court of competent jurisdiction of the county in
which the violation occurs or is about to occur.
(8) The attorney general may file a civil action in which the
court may impose on any person who violates this part or a rule
promulgated under this part or attempts to violate this part or a
rule promulgated under this part a civil fine of not more than
$5,000.00 for each violation or attempted violation. In addition,
the attorney general may bring an action in circuit court to
recover the reasonable costs of the investigation from any person
who violated this part or attempted to violate this part. Money
recovered under this subsection shall be forwarded to the state
treasurer for deposit into the fund.
(9) In defense of an action filed under this section for a
violation of this part, in addition to any other lawful defense, a
person may present evidence as an affirmative defense that, at the
time of the alleged violation or attempted violation, he or she was
in compliance with this part and rules promulgated under this part.
(10) A person who violates this part is liable for all damages
sustained by a purchaser of a product sold in violation of this
part. In an enforcement action, a court, in addition to other
sanctions provided by law, may order restitution to a party injured
by the purchase of a product sold in violation of this part.
(11) Applicable provisions of the revised judicature act of
1961, 1961 PA 236, MCL 600.101 to 600.9948, apply to civil actions
filed pursuant to this part.
Sec. 8521. The penalties and sanctions provided for violations
of this part do not apply to any of the following:
(a) A commercial carrier while lawfully engaged in
transporting a commercial fertilizer within this state, if the
carrier, upon request, permits the director to copy all records
showing the transactions in and movement of the commercial
fertilizer.
(b) The shipment or movement of any commercial fertilizer
considered to be in violation of this part, for the specific
purposes of disposal or storage when conducted under the approval
of the director.
(c) Public officials of this state and the federal government
while engaged in the performance of their official duties in
administering this part or rules promulgated under this part.
Sec. 8522. A court shall not allow the recovery of damages by
Senate Bill No. 840 (S-5) as amended December 13, 2006
a person against whom an administrative action was brought
resulting in an order stopping the sale or use of fertilizer or
fertilizer material or requiring its seizure if the court finds
that there was probable cause for the action or order.
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