HB-5368, As Passed House, September 23, 2010

SUBSTITUTE FOR

HOUSE BILL NO. 5368

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 8501, 8517, and 8520 (MCL 324.8501, 324.8517,

and 324.8520), section 8501 as amended by 2008 PA 13, section 8517

as amended by 2008 PA 14, and section 8520 as added by 2006 PA 503,

and by adding sections 8512b, 8512f, and 8512g.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 8501. As used in this part:

     (a) "Adulterated product" means a product that 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

that may be necessary to protect plant life, animals, humans,

aquatic life, soil or water are not shown on the label.

     (b) "Agricultural use" means that term as defined in section

36101.

     (c) "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.

     (d) "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.

     (e) "Aquifer sensitivity region" means an area in which

aquifer sensitivity estimations are sufficiently uniform to warrant

their classification as a unit.

     (f) "Brand or product name" means a term, design, or trademark

used in connection with 1 or more grades of fertilizer.

     (g) "Bulk fertilizer" means fertilizer distributed in a

nonpackaged form.

     (h) "Custom blend" means a fertilizer blended according to

specifications provided to a blender in a soil test nutrient

recommendation or blended as specifically requested by the consumer

prior to blending.

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

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

her designee.

     (k) "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.

     (l) "Distributor" means any person who distributes fertilizer

for sale or use in this state.

     (m) "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.

     (n) "Fertilizer material" means a fertilizer that is any to

which 1 or more of the following apply:

     (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 that has been processed in such a way that

its content of plant nutrients has not been materially changed

except by purification and concentration.

     (o) "Fund" means the fertilizer control fund created under

section 8514.

     (p) "Grade" means the percentage guarantee of total nitrogen

(N), available phosphate (P₂O₅), and soluble potash (K₂O), of a

fertilizer. and Grade shall be stated in the same order given in

this subdivision. Indication of grade does not apply to peat or

peat moss or soil conditioners.

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

saturation.

     (r) "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.

     (s) "Guaranteed analysis" means the minimum percentage of each

plant nutrient guaranteed or claimed to be present.

     (t) "Impervious surface" means a paved highway, street,

sidewalk, parking lot, driveway, or other outdoor structure that

prevents infiltration of water into the soil.

(u) (t) "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.

(v) (u) "Labeling" means all labels and other written,

printed, electronic, or graphic matter upon or accompanying any

fertilizer at any time, and includes advertising, sales literature,

brochures, posters, and internet, television, and radio

announcements used in promoting the sale of that fertilizer.

(w) (v) "Licensee" means the person who receives a license to

manufacture or distribute fertilizers under this part.

(x) (w) "Lot" means an identifiable quantity of fertilizer

House Bill No. 5368 (H-2) as amended September 23, 2010

that can be sampled officially according to methods adopted under

section 8510, that amount is contained in a single vehicle, or that

amount is delivered under a single invoice.

(y) (x) "Manufacture" means to process, granulate, compound,

produce, mix, blend, or alter the composition of fertilizer or

fertilizer materials.

     (z) "Turf" means land planted in grasses that are closely

mowed and otherwise managed or land about to be planted in grasses

that will be closely mowed and otherwise managed. Turf does not

include pasture, hayland, hay, turf grown on a turf farm, or any

other form of agricultural production.

     Sec. 8512b. (1) Beginning [OCTOBER 1, 2011], except as provided in

subsection (2), (3), or (4), a person shall not apply to turf a

fertilizer labeled as containing the plant nutrient available

phosphate (P₂O₅).

     (2) If a tissue, soil, or other test performed within the

preceding 3 years by a laboratory [EXPERIENCED IN CONDUCTING TESTS FOR

PHOSPHORUS THAT ADHERE TO RECOGNIZED NATIONAL STANDARDS

]

indicates that the level of available phosphate (P₂O₅) in the soil

is deficient to support healthy turf grass growth or establishment,

a person may apply fertilizer to the turf at an application rate

for available phosphate not exceeding that necessary to correct the

deficiency.

     (3) If new turf is being established using seed or sod, it is

the first growing season for the turf grass at the site, and a test

described in subsection (2) has not been performed, a person may

House Bill No. 5368 (H-2) as amended September 23, 2010

apply fertilizer to the turf at an application rate for available

phosphate (P₂O₅) not exceeding the standard rate for new turf grass

establishment, which shall be specified by the director after

consultation with the Michigan state university extension.

     (4) In addition, a person may apply fertilizer labeled as

containing the plant nutrient available phosphate (P₂O₅) to a golf

course if 1 or more of the following apply:

     (a) The golf course has been certified by an organization as a

result of the golf course's staff having successfully completed a

training program approved by the director. The director shall

approve a training program if it is a continuing program,

adequately addresses best management practices for use of turf

fertilizer containing available phosphate, and requires trainees to

demonstrate successful implementation of those best management

practices.

     (b) If a tissue, soil, or other test performed within the

preceding 3 years by a laboratory [EXPERIENCED IN CONDUCTING TESTS FOR

PHOSPHORUS THAT ADHERE TO RECOGNIZED NATIONAL STANDARDS

]

indicates that the level of available phosphate in the soil is

deficient to support healthy golf course turf grass growth or

establishment, the golf course may apply fertilizer at an

application rate for available phosphate not exceeding that

necessary to correct the deficiency.

     (c) If new turf is being established using seed or sod, it is

the first growing season for the turf grass at the site, and a test

described in subdivision (b) has not been performed, a golf course

House Bill No. 5368 (H-2) as amended September 23, 2010

may apply fertilizer to the turf at an application rate for

available phosphate (P₂O₅) not exceeding the rate necessary for new

golf course turf grass establishment.

     (5) A person shall not apply fertilizer to turf less than 15

feet from any surface water, unless 1 or more of the following

apply:

     (a) A continuous natural vegetative buffer at least 10 feet

wide separates the turf from the surface water.

     (b) A spreader guard, deflector shield, or drop spreader is

used when applying the fertilizer, and the fertilizer is not

applied less than 3 feet from the surface water.

     (6) A person shall not clean a fertilizer spreader [THAT IS USED TO

APPLY FERTILIZER TO TURF IN A MANNER] that allows wash water from the

spreader to

discharge directly into waters of this state, including, but not

limited to, a drain under the drain code of 1956, 1956 PA 40, MCL

280.1 to 280.630.

     (7) The department shall post information concerning the

requirements of subsections (1) to (4) on its website and publicize

the availability of that information by whatever means the

department determines to be appropriate.

     Sec. 8512f. (1) A person who releases fertilizer on an

impervious surface shall do both of the following:

     (a) Promptly contain the fertilizer.

     (b) Either legally apply the fertilizer to turf or another

appropriate site or return the fertilizer to an appropriate

container.

     (2) A person shall not apply a fertilizer to turf if the soil

House Bill No. 5368 (H-2) as amended September 23, 2010

is frozen or saturated with water.

     Sec. 8512g. The department, in consultation with the

fertilizer industry representatives, [FERTILIZER RETAILERS,] statewide

 environmental

organizations, lake groups, and other interested parties, may

approve consumer information on use restrictions and recommended

best practices for lawn fertilizer containing available phosphate

(P₂0₅), and on best management practices for other residential uses

of phosphorus. The information shall be in a format and include

content suitable for use by the general public or posting and

distribution at retail points of sale of turf fertilizer.

     Sec. 8517. (1) Except as otherwise provided in this section,

this part preempts any local ordinance, regulation, or resolution

that would duplicate, extend, or revise in any manner the

provisions of this part. Except as otherwise provided for in this

section, a local unit of government shall not adopt, maintain, or

enforce an ordinance, regulation, or resolution that contradicts or

conflicts in any manner with this part.

     (2) If a local unit of government is under contract with the

department to act as its agent or the local unit of government has

received prior written authorization from the department, that

local unit of government may adopt an ordinance that is identical

to this part and rules promulgated under this part, except as

prohibited in subsection (6). The local unit of government's

enforcement response for a violation of the ordinance that involves

the manufacturing, storage, distribution, sale, or agricultural use

of products regulated by this part is limited to issuing a cease

and desist order in the manner prescribed in section 8511.

     (3) A local unit of government may adopt an ordinance

prescribing standards different from those contained in this part

and rules promulgated under this part and that regulates the

manufacturing, storage, distribution, sale, or agricultural use of

a product regulated by this part only under either or both of the

following circumstances:

     (a) Unreasonable adverse effects on the environment or public

health will otherwise exist within the local unit of government,

taking into consideration specific populations whose health may be

adversely affected within that local unit of government.

     (b) The local unit of government has determined that the

manufacturing, storage, distribution, sale, or agricultural use of

a product regulated by this part within that unit of government has

resulted or will result in the violation of other existing state or

federal laws.

     (4) An ordinance adopted under subsection (2) or (3) shall not

conflict with existing state laws or federal laws. An ordinance

adopted under subsection (3) shall not be enforced by a local unit

of government until approved by the commission of agriculture. The

commission of agriculture shall provide a detailed explanation of

the basis of a denial within 60 days.

     (5) Within 60 days after the legislative body of a local unit

of government submits to the department a resolution identifying

unreasonable adverse effects on the environment or public health as

provided for in subsection (3)(a), the department shall hold a

local public meeting to determine the nature and extent of

unreasonable adverse effects on the environment or public health

due to the manufacturing, storage, distribution, sale, or

agricultural use of a product regulated by this part. Within 30

days after the local public meeting, the department shall issue a

detailed opinion regarding the existence of unreasonable adverse

effects on the environment or public health as identified by the

resolution of the local unit of government.

     (6) The director may contract with a local unit of government

to act as its agent for the purpose of enforcing this part and the

rules promulgated under this part. The department has sole

authority to assess fees, register fertilizer or soil conditioner

products, cancel or suspend registrations, and regulate administer

and enforce provisions of section 8512.

     (7) A local unit of government that adopts an ordinance under

subsection (2) or (3) shall require persons enforcing the ordinance

to comply with training and enforcement requirements determined

appropriate by the director.

     (8) Subsection (1) does not prohibit the maintenance or

enforcement of an ordinance that regulates or prohibits the

application to turf of fertilizer containing the plant nutrient

available phosphate (P₂O₅), but only if the ordinance was in effect

on the enactment date of the amendatory act that added this

subsection.

     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.

A person shall not be fined under both this subsection and

subsection (7) for the same 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. This subsection does

not apply to a violation of section 8512b or 8512f.

     (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. This

subsection does not apply to a violation of section 8512b or 8512f.

     (7) A person who violates or attempts to violate section 8512b

or 8512f is responsible for a state civil infraction and may be

ordered to pay a civil fine of not more than the following for each

violation or attempted violation:

     (a) Except as provided in subdivision (b), not more than

$1,000.00.

     (b) Not more than $50.00 if all of the following apply:

     (i) The violation or attempted violation occurs on a single-

family residential parcel or any other parcel or contiguous parcels

with a total of not more than 4 acres of turf.

     (ii) The violation is committed by the property owner or

lessee, a member of his or her family, or a person who resides on

the property.

(8) (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.

(9) (8) The attorney general may file a civil action in which

the court may impose on any person who violates or attempts to

violate this part or a rule promulgated under this part, or

attempts to violate this part or a rule promulgated under this part

other than section 8512b or 8512f, 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.

(10) (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.

(11) (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.

(12) (11) Applicable A civil action filed pursuant to this

part is subject to 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.600.9947.