SB-0682, As Passed Senate, November 7, 2007

SUBSTITUTE FOR

SENATE BILL NO. 682

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 1301, 8302, 8303, 8310, 8317, 8325, and 8715

(MCL 324.1301, 324.8302, 324.8303, 324.8310, 324.8317, 324.8325,

and 324.8715), section 1301 as amended by 2004 PA 381, section 8302

as amended by 2002 PA 418, section 8303 as amended by 2004 PA 24,

section 8310 as amended by 2004 PA 325, section 8317 as amended by

2007 PA 78, and section 8715 as amended by 2000 PA 100, and by

adding section 8310a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1301. As used in this part:

     (a) "Application period" means the period beginning when an

application for a permit is received by the state and ending when

the application is considered to be administratively complete under

section 1305 and any applicable fee has been paid.

     (b) "Department" means the department, agency, or officer

authorized by this act to approve or deny an application for a

particular permit.

     (c) "Director" means the director of the state department

authorized under this act to approve or deny an application for a

particular permit or the director's designee.

     (d) "Permit" means a permit or operating license required by

any of the following sections or by rules promulgated thereunder,

or, in the case of section 9112, by an ordinance or resolution

adopted thereunder:

     (i) Section 3104, floodplain alteration permit.

     (ii) Section 3503, permit for use of water in mining iron ore.

     (iii) Section 4105, sewerage system construction permit.

     (iv) Section 6516, vehicle testing license.

     (v) Section 6521, motor vehicle fleet testing permit.

     (vi) Section 8310, restricted use pesticide dealer business

location license.

     (vii) Section 8310a, agricultural pesticide dealer license.

(viii) (vii) Section 8504, license to manufacture or distribute

fertilizer.

(ix) (viii) Section 9112, local soil erosion and sedimentation

control permit.

(x) (ix) Section 11509, solid waste disposal area construction

permit.

(xi) (x) Section 11512, solid waste disposal area operating

license.

(xii) (xi) Section 11542, municipal solid waste incinerator ash

landfill operating license amendment.

(xiii) (xii) Section 11702, septage waste servicing license or

septage waste vehicle license.

(xiv) (xiii) Section 11709, septage waste site permit.

(xv) (xiv) Section 30104, inland lakes and streams project

permit.

(xvi) (xv) Section 30304, state permit for dredging, filling, or

other activity in wetland.

(xvii) (xvi) Section 31509, dam construction, repair, removal

permit.

(xviii) (xvii) Section 32312, flood risk, high risk, or

environmental area permit.

(xix) (xviii) Section 32503, permit for dredging and filling

bottomland.

(xx) (xix) Section 35304, department permit for critical dune

area use.

(xxi) (xx) Section 36505, endangered species permit.

(xxii) (xxi) Section 41702, game bird hunting preserve license.

(xxiii) (xxii) Section 42101, dog training area permit.

(xxiv) (xxiii) Section 42501, fur dealer's license.

(xxv) (xxiv) Section 42702, game dealer's license.

(xxvi) (xxv) Section 44513, charter boat operating permit under

reciprocal agreement.

(xxvii) (xxvi) Section 44517, boat livery operating permit.

(xxviii) (xxvii) Section 45503, permit to take frogs for

scientific use.

(xxix) (xxviii) Section 45902, game fish propagation license.

(xxx) (xxix) Section 45906, game fish import license.

(xxxi) (xxx) Section 61525, oil or gas well drilling permit.

(xxxii) (xxxi) Section 62509, brine, storage, or waste disposal

well drilling or conversion permit or test well drilling permit.

(xxxiii) (xxxii) Section 63103a, metallic mineral mining permit.

(xxxiv) (xxxiii) Section 63514 or 63525, surface coal mining and

reclamation permit or revision of the permit during the term of the

permit, respectively.

(xxxv) (xxxiv) Section 63704, sand dune mining permit.

(xxxvi) (xxxv) Section 72108, use permits for Michigan trailway.

(xxxvii) (xxxvi) Section 76109, sunken aircraft or watercraft

abandoned property recovery permit.

(xxxviii) (xxxvii) Section 76504, Mackinac Island motor vehicle and

land use permits.

(xxxix) (xxxviii) Section 80159, buoy or beacon permit.

     (e) "Processing deadline" means the last day of the processing

period.

     (f) "Processing period" means the following time period after

the close of the application period, for the following permit, as

applicable:

     (i) Twenty days for a permit under section 61525 or 62509.

     (ii) Thirty days for a permit under section 9112.

     (iii) Thirty days after the department consults with the

underwater salvage and preserve committee created under section

76103, for a permit under section 76109.

     (iv) Sixty days, for a permit under section 30104 for a minor

project as established by rule under section 30105(6) 30105(7) or

for a permit under section 32312.

     (v) Sixty days or, if a hearing is held, 90 days for a permit

under section 35304.

     (vi) Sixty days or, if a hearing is held, 120 days for a permit

under section 30104, other than a permit for a minor project as

established by rule under section 30105(6) 30105(7), or for a

permit under section 31509.

     (vii) Ninety days for a permit under section 11512, a revision

of a surface coal mining and reclamation permit during the term of

the permit under section 63525, or a permit under section 72108.

     (viii) Ninety days or, if a hearing is held, 150 days for a

permit under section 3104, 30304, or 32503.

     (ix) One hundred and twenty days for a permit under section

11509, 11542, 63103a, 63514, or 63704.

     (x) One hundred fifty days for a permit under section 36505.

However, if a site inspection or federal approval is required, the

150-day period is tolled pending completion of the inspection or

receipt of the federal approval.

     (xi) For any other permit, 150 days or, if a hearing is held,

90 days after the hearing, whichever is later.

     Sec. 8302. (1) "Active ingredient" means an ingredient that

will prevent, destroy, repel, or mitigate pests, or that will act

as a plant regulator, defoliant, or desiccant or otherwise alter

the behavior of plants or products.

     (2) "Activity plan" means a plan for the mitigation of

groundwater contamination at a specific location, including a time

frame for implementation.

     (3) "Adulterated" applies to a pesticide if its strength or

purity is less than, or significantly greater than, the professed

standard or quality as expressed on its labeling or under which it

is sold; if a any substance was substituted wholly or in part for a

pesticide; or if a valuable constituent of the pesticide was wholly

or in part abstracted.

     (4) "Agricultural commodity" means a plant or part of a plant,

or an animal or animal product, produced primarily for sale,

consumption, propagation, or other use by human beings or animals.

     (5) "Agricultural pesticide" means a pesticide that bears

labeling that meets federal worker protection agricultural use

requirements established in 40 CFR parts 156 and 170.

     (6) "Agricultural pesticide dealer" means a person engaged in

distributing, selling, or offering for sale an agricultural

pesticide to the ultimate user.

(7) (5) "Animal" means all vertebrate and invertebrate

species, including, but not limited to, human beings and other

mammals, birds, fish, and shellfish.

(8) (6) "Antimicrobial pesticide" means a pesticide that is

intended to disinfect, sanitize, reduce, or mitigate growth or

development of microbial organisms, as defined under the federal

insecticide, fungicide, and rodenticide act, chapter 125, 86 Stat.

973, 7 U.S.C. 136 to 136i, 136j to 136r, and 136s to 136y FIFRA.

(9) (7) "Application season" means a time period of pesticide

application, consistent with the category of application, within a

calendar year.

(10) (8) "Aquifer" means a geologic formation, a group of

formations, or a part of a formation capable of yielding a

significant amount of groundwater to wells or springs.

(11) (9) "Aquifer sensitivity" means a hydrogeologic function

representing the inherent abilities of materials surrounding the

aquifer to attenuate the movement of pesticides into that aquifer.

(12) (10) "Avicide" means a pesticide intended for preventing,

destroying, repelling, or mitigating pest birds.

(13) (11) "Building manager" means the person who is

designated as being responsible for the building's pest management

program and to whom any reporting and notification shall be made

pursuant to this part or rules promulgated under this part.

(14) (12) "Certified applicator" means an individual who is

authorized under this part to use and supervise the use of a

restricted use pesticide.

(15) (13) "Commercial applicator" means a person who is

required to be a registered or certified applicator under this

part, or who holds himself or herself out to the public as being in

the business of applying pesticides. A commercial applicator does

not include a person using a pesticide for a private agricultural

purpose.

(16) (14) "Commercial building" means any a portion of a

building that is not a private residence, where a business is

located, and that is frequented by the public.

(17) (15) "Confirmed contaminant" means a contaminant that has

been detected in at least 2 groundwater samples collected from the

same groundwater sampling point at an interval of greater than 14

days.

(18) (16) "Contaminant" means any a pesticide originated

chemical, radionuclide, ion, synthetic organic compound,

microorganism, or waste that does not occur naturally in

groundwater or that naturally occurs at a lower concentration than

detected.

(19) (17) "Contamination" means the direct or indirect

introduction into groundwater of any contaminant caused in whole or

in part by human activity.

     Sec. 8303. (1) "Day care center" means a facility, other than

a private residence, which receives receiving 1 or more preschool

or school-age children for care for periods of less than 24 hours a

day, at which and where the parents or guardians are not

immediately available to the child, and which is licensed as a

child care organization by the Michigan family independence agency

department of human services under 1973 PA 116, MCL 722.111 to

722.128.

     (2) "Defoliant" means a substance or mixture of substances

intended for causing the leaves or foliage to drop from a plant,

with or without causing abscission.

     (3) "Department" means the department of agriculture.

     (4) "Desiccant" means a substance or mixture of substances

intended for artificially accelerating the drying of plant tissue.

     (5) "Device" means an instrument or contrivance, other than a

firearm, which is intended for trapping, destroying, repelling, or

mitigating a pest; but does not include equipment used for the

application of pesticides when sold separately.

     (6) "Direct supervision" means directing the application of a

pesticide while being physically present during the application.

However, direct supervision by a private agricultural applicator

means either of the following:

     (a) The private agricultural applicator is in the same field

or location as an uncertified applicator, directing the application

of a restricted use pesticide by an the uncertified applicator.

     (b) The private agricultural applicator supervises the an

uncertified applicator and is physically present during the initial

restricted use pesticide application on an agricultural commodity

or agricultural structure, including calibration, mixing,

application, operator safety, and disposal.

     (7) "Director" means the director of the department or his or

her authorized representative.

     (8) "Distribute" means to offer for sale, hold for sale, sell,

barter, ship, inventory or receive for others for a period greater

than 21 days, or deliver pesticides in this state.

     (9) "Envelope monitoring" means monitoring of groundwater in

areas adjacent to properties where groundwater is contaminated to

determine the concentration and spatial distribution of the

contaminant in the aquifer.

     (10) "Environment" includes water, air, land, and all plants

and human beings and other animals living therein, and the

interrelationships that exist among them.

     (11) "EPA" means the United States environmental protection

agency.

     (12) "FIFRA" means the federal insecticide, fungicide, and

rodenticide act, chapter 125, 86 Stat. 973, 7 USC 136 to 136i, 136j

to 136r and 136s 7 USC 136 to 136y.

     (13) "Fungi" means all nonchlorophyll bearing thallophytes;

that is, all nonchlorophyll bearing plants of a lower order than

mosses and liverworts, as for example rusts, smuts, mildews, molds,

yeasts, and bacteria, except those in or on other animals, and

except those in or on processed foods, beverages, or

pharmaceuticals.

     (14) "General use pesticide" means a pesticide that is not a

restricted use pesticide.

     (15) "Groundwater" means underground water within the zone of

saturation.

     (16) "Groundwater protection rule" means a rule promulgated

under this part that specifies a minimum operational standard for

structures, activities, and procedures that may have contributed or

may contribute to the contamination of groundwater and that

specifies the standard's scope, region of implementation, and

implementation period. As used in this subsection:

     (a) "Structures, activities, and procedures" includes, but is

not limited to, mixing, loading, and rinse pads, application

equipment, application timing, application rates, crop rotation,

and pest control thresholds.

     (b) "Scope" means applicability to a particular pesticide,

structure, activity, or procedure or pesticides containing specific

ingredients.

     (c) "Region of implementation" may include specific soil types

or aquifer sensitivity regions or any other geographic boundary.

     (17) "Groundwater resource protection level" means a maximum

contaminant level, health advisory level, or, if the EPA has not

established a maximum contaminant level or a health advisory level,

a level established by the director of public community health

using risk assessment protocol established by rule under this part.

     (18) "Groundwater resource response level" means 20% of the

groundwater resource protection level. If 20% of the groundwater

resource protection level is less than the method detection limit,

the method detection limit is the groundwater resource response

level.

     Sec. 8310. (1) A person shall not engage in distributing,

selling, or offering for sale restricted use pesticides to the

ultimate user except as authorized under an annual license for each

place of business issued by the department pursuant to part 13.

     (2) The applicant for a license under subsection (1) shall be

the person in charge of each business location. The applicant shall

demonstrate by written examination his or her knowledge of laws and

rules governing the use and sale of restricted use pesticides.

     (3) A person licensed under subsection (1) who operates from a

business location outside this state shall continuously maintain in

this state both of the following:

     (a) A registered office.

     (b) A resident agent, which agent may be either an individual

resident in this state whose business office or residence is

identical with the registered office, a domestic corporation or

limited liability company, or a foreign corporation or limited

liability company authorized to transact business in this state and

having a business office identical with the registered office. The

person licensed under subsection (1) shall file with the department

the name, address, and telephone number of the resident agent.

(4) (3) A restricted use pesticide dealer shall forward to the

director a record of all sales of restricted use pesticides on

forms provided by the director as required by rule. Restricted A

restricted use pesticide dealers dealer shall keep copies of the

records on file for 2 years. These records are subject to

inspection by an authorized agent of the director. The records

shall, upon request, be supplied in summary form to other state

agencies. The summary shall include the name and address of the

restricted use pesticide dealer, the name and address of the

purchaser, the name of the pesticide sold, and, in an emergency,

the quantity sold. Information may not be made available to the

public if, in the discretion of the director, release of that

information could have a significant adverse effect on the

competitive position of the dealer, distributor, or manufacturer.

(5) (4) A restricted use pesticide dealer shall sell or

distribute restricted use pesticides for use only by applicators

certified under this part.

(6) (5) The director may deny, suspend, or revoke a restricted

use pesticide dealer's license for any violation of this part or an

order issued under this part, or upon conviction under this part,

FIFRA, or a state pesticide law of a reciprocating state committed

by the dealer or the dealer's officer, agent, or employee. The

director shall inform an applicant who is denied a restricted use

pesticide dealer's license of the reasons why the license was

denied.

(7) (6) A restricted use pesticide dealer shall maintain and

submit to the department records of all restricted use pesticide

sales to private applicators and the intended county of application

for those pesticides.

(8) (7) Information collected in subsection (6) (7) is

confidential business information and is not subject to the freedom

of information act, 1976 PA 442, MCL 15.231 to 15.246.

     (9) A restricted use pesticide dealer who distributes an

agricultural pesticide into this state shall report to the

agricultural pesticide registrant all of the following information

concerning that distribution:

     (a) The product name.

     (b) The EPA registration number.

     (c) The amount of pesticide sold or distributed.

     (d) The wholesale value of pesticide sold or distributed.

     (e) The date of sale or distribution.

     (f) The sales or distribution invoice number.

     (g) The name and address of the consignee.

     Sec. 8310a. (1) A person who is not licensed under section

8310 shall not engage in distributing, selling, or offering for

sale agricultural pesticides except as authorized under an annual

license for each place of business issued by the department

pursuant to part 13.

     (2) The applicant for a license under subsection (1) shall be

the individual in charge of each business location.

     (3) The application for a license under subsection (1) shall

be on a form provided by the director and shall contain information

regarding the applicant's proposed operations and other information

considered pertinent by the director.

     (4) A person licensed under subsection (1) who operates from a

business location outside this state shall continuously maintain in

this state both of the following:

     (a) A registered office.

     (b) A resident agent, which agent may be either an individual

resident in this state whose business office or residence is

identical with the registered office, a domestic corporation or

limited liability company, or a foreign corporation or limited

liability company authorized to transact business in this state and

having a business office identical with the registered office. The

person licensed under subsection (1) shall file with the department

the name, address, and telephone number of the resident agent.

     (5) An agricultural pesticide dealer who distributes an

agricultural pesticide into this state shall report to the

agricultural pesticide registrant all of the following information

concerning that distribution:

     (a) The product name.

     (b) The EPA registration number.

     (c) The amount of pesticide sold or distributed.

     (d) The wholesale value of pesticide sold or distributed.

     (e) The date of sale or distribution.

     (f) The sales or distribution invoice number.

     (g) The name and address of the consignee.

     (6) The director may deny, suspend, or revoke an agricultural

pesticide dealer's license for any violation of this part or an

order issued under this part, or upon conviction under this part,

FIFRA, or a state pesticide law of a reciprocating state committed

by the dealer or the dealer's officer, agent, or employee. The

director shall inform an applicant who is denied an agricultural

pesticide dealer's license of the reasons why the license was

denied.

     (7) A pesticide registrant who distributes agricultural

pesticides into the state is exempt from the requirements of

subsection (1).

     Sec. 8317. (1) An application submitted under this part shall

be accompanied by the following application fee:

     (a) For a commercial applicator certification, $75.00.

     (b) For a private agricultural applicator certification,

$50.00 until September 30, 2012 and $10.00 after September 30,

2012.

     (c) For a commercial registered applicator, $45.00.

     (d) For a private registered applicator, $50.00 until

September 30, 2012 and $10.00 after September 30, 2012.

     (2) Certificates for commercial applicators, private

agricultural applicators, and registered applicators shall be valid

for a period of time of not less than 3 years to be established by

rule by the director.

     (3) The license application fee for a commercial applicator

license is $100.00. The license shall expire expires annually on

December 31. annually.

     (4) The registration application fee for the registration of

pesticides sold, offered for sale, exposed for sale, or distributed

is $40.00 per product.

     (5) The license application fee for a restricted use pesticide

dealer's license is $100.00. The license shall expire expires

annually on December 31.

     (6) The license application fee for an agricultural pesticide

dealer's license is $100.00. The license expires annually on

December 31.

(7) (6) Application fees submitted under this section are not

refundable.

(8) (7) The department shall deposit license and

administrative fees and administrative, civil, and noncriminal

fines received, as well as any payment for costs or reimbursement

to the department for investigation, under this part in the

agriculture licensing and inspection fees fund created in section 9

of the insect pest and plant disease act, 1931 PA 189, MCL 286.209,

to be used, pursuant to appropriation, by the director in

administering and carrying out those duties required by law under

this part.

     Sec. 8325. (1) The director shall promulgate rules for

implementing this part, including, but not limited to, rules

providing for the following:

     (a) The collection, examination, and reporting the results of

examination of samples of pesticides or devices.

     (b) The safe handling, transportation, storage, display,

distribution, and disposal of pesticides and their containers.

     (c) The designation of restricted use pesticides and

agricultural pesticides for the state or for specified areas within

the state. The director may include in the rule the time and

conditions of sale, distribution, and use of restricted use

pesticides and agricultural pesticides.

     (d) The certification and licensing of applicators and the

licensing of restricted use pesticide dealers and agricultural

pesticide dealers.

     (e) The maintenance of records by certified commercial

applicators with respect to applications of restricted use

pesticides.

     (f) Good practice in the use of pesticides.

     (g) Notification or posting, or both, designed to inform

persons entering certain public and or private buildings or other

areas where the application of a pesticide, other than a general

use ready-to-use pesticide, has occurred.

     (h) Use of a pesticide in a manner consistent with its

labeling including adequate supervision of noncertified applicators

if appropriate.

     (i) Prenotification by the building manager upon request for

affected persons regarding the application of a pesticide at

daycare centers and schools.

     (j) Responsibility of a building manager to post signs

provided to him or her by the a commercial applicator.

     (k) Designation of posted school bus stops as sensitive areas.

     (l) The establishing of a schedule of civil fines for violation

of local ordinances as described in section 8328(3).

     (2) By December 27, 1989, the director shall submit rules to

the joint committee on administrative rules pertaining to all of

the following:

     (a) The development of a training program for applicators who

apply pesticides for private agricultural purposes on the use of

appropriate procedures for the application of pesticides; safety

procedures for pesticide application; clothing and protective

equipment for pesticide application; the detection of common

symptoms of pesticide poisoning; the means of obtaining emergency

medical treatment; hazards posed by pesticides to workers, the

public health, and the environment; specific categories of

pesticides; and the requirements of applicable laws, rules, and

labeling.

     (b) The development of training programs for integrated pest

management systems in schools, public buildings, and health care

facilities.

     (c) The duty of commercial applicators to inform customers of

potential risks and benefits associated with the application of

pesticides.

     (3) By June 27, 1990, the director shall submit rules to the

joint committee on administrative rules pertaining to the

protection of agriculture employees who hand harvest agricultural

commodities regarding all of the following:

     (a) The establishment of field reentry periods after the

application of agricultural pesticides.

     (b) The posting and notification of areas where pesticides

have been applied.

     (c) The use of protective clothing, safety devices, hand

washing, or other methods of protection from pesticide exposure.

     (d) Notification of agricultural workers of poison treatment

facilities.

     (4) If the EPA at any time adopts and publishes agricultural

worker protection standards, the federal standards shall supersede

rules promulgated under subsection (3).

     (5) By December 27, 1989, the director shall submit rules to

the joint committee on administrative rules. These rules shall

include all of the following:

     (a) Minimum standards of competency and experience or

expertise for trainers of certified and registered applicators.

     (b) The development of a training program for applicators on

the use of appropriate procedures for the application of

pesticides; safety procedures for pesticide application; clothing

and protective equipment for pesticide application; the detection

of common symptoms of pesticide poisoning; the means of obtaining

emergency medical treatment; hazards posed by pesticides to

workers, the public health, and the environment; specific

categories of pesticides; and the requirements of applicable laws,

rules, and labeling.

     (c) The number of directly supervised application hours

required before a registered applicator may apply each category of

restricted use pesticide without direct supervision.

     Sec. 8715. (1) In addition to the fees provided for in part

83, a registrant shall pay an annual groundwater protection fee for

each product to be registered. The specialty pesticide groundwater

protection fee is $100.00 per product. Groundwater protection fees

for all other pesticides are 0.75% of the wholesale value of the

previous registration year's product sales for use in this state,

with a $150.00 minimum groundwater protection fee. The minimum

groundwater protection fee is due in the office of the director

before July 1. Sales A sales based groundwater protection fees fee

greater than the $150.00 minimum are is due in the office of the

director before October 1 of the following registration years year.

     (2) An additional late fee of $100.00 shall be paid by the

registrant for each pesticide if the pesticide registration is a

renewal registration and the minimum groundwater protection fee is

received by the department after June 30.

     (3) A person required to pay a specialty fertilizer or soil

conditioner registration fee under part 85 section 8505 shall pay

an additional $100.00 groundwater protection fee for each brand and

product name of each grade registered.

     (4) All fertilizer manufacturers or distributors licensed

under part 85, except specialty fertilizer and soil conditioner

registrants, shall pay an additional groundwater protection fee of

1-1/2 cents per percent of nitrogen in the fertilizer for each ton

of fertilizer sold.

     (5) The fees collected under this part, including any interest

or dividends earned, shall be transmitted to the state treasurer,

who shall credit the money received to the fund.

     (6) Upon the expenditure or appropriation of money raised in

this section for any purpose other than those specifically listed

in this part, authorization to collect fees in this section shall

be suspended until such time as the money expended or appropriated

for purposes other than those listed in this part are returned to

the fund.

     (7) This section is repealed December 31, 2010 2013.