September 15, 2009, Introduced by Reps. Terry Brown, Scripps, Warren, Miller, Polidori, Sheltrown, Leland, Lipton, Bledsoe, Gonzales, Espinoza, Smith, Donigan, Roberts, Kennedy and Meadows and referred to the Committee on Great Lakes and Environment.
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 and 8512f.
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
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 January 1, 2011, except as provided
in subsections (2) to (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 or method approved by the
director indicates that the level of available phosphate (P2O5) in
the soil is deficient to support healthy turf grass growth or
establishment, after considering recommendations by the Michigan
state university extension for application rates based on the test
results, 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
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) 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) A tissue, soil, or other test performed within the
preceding 3 years by a laboratory or method approved by the
director indicates that the level of available phosphate in the
soil is deficient to support the healthy growth of golf course turf
grass. After considering recommendations by the Michigan state
university extension for application rates based on the test
results, the golf course may apply fertilizer at an application
rate for available phosphate not exceeding that necessary to
correct the deficiency.
(5) 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
is frozen or saturated with water.
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) as 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, 8512c, 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, 8512c,
or 8512f.
(7) A person who violates or attempts to violate section
8512b, 8512c, 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, 8512c, 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.