Report Title:

Fertilizer; Health; Hazardous Substances

Description:

Regulates the sale, distribution, and use of fertilizers, soil amendments, and liming materials in the State.

HOUSE OF REPRESENTATIVES

H.B. NO.

1946

TWENTY-THIRD LEGISLATURE, 2006

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to fertilizer.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

hazardous substances in fertilizer

§ -1 The legislature finds that:

(1) Residents and the environment are being exposed each year to a large number of hazardous substances in use in fertilizers, soil amendments, and liming materials;

(2) This exposure is without the public's knowledge or consent;

(3) There is great scientific uncertainty about the environmental transport and plant uptake rates for these hazardous substances that present an unreasonable risk to the public's health and welfare and the environment;

(4) Our current regulations fail to systematically integrate economic and environmental goals, thus putting both at risk; and

(5) Fertilizers, soil amendments, or liming materials that fail to meet the state standards for total controlled substances pose an emergency situation because they may contain hazardous substances at levels that are harmful to beneficial plant life, animals, humans, aquatic life, soil, and water.

The purpose of this chapter it to provide effective control of the sale, distribution, and use of fertilizers, soil amendments, and liming materials in the State.

§ -2 Definitions. As used in this chapter:

"Controlled substance" means any substance classified as a hazardous substance prior to its use in fertilizer. Controlled substance applies to any substance originating from a virgin, waste, or non-waste source, regardless as to whether the process to incorporate the substance into fertilizer is defined as "use", "recycling", "reuse", or "disposal" by other relevant regulations.

"Department" means the department of health.

"Fertilizer" means a substance containing one or more recognized plant nutrients that is used for its plant nutrient content or that is designated for use or claimed to have value in promoting plant growth, and includes manipulated animal and vegetable manures. "Fertilizer" does not include unmanipulated animal and vegetable manures, organic waste-derived material, lime, gypsum, and other products exempted pursuant to rules adopted in accordance with chapter 91. "Fertilizer" includes commercial, bulk, custom, and specialty fertilizers.

"Hazardous substance" means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the characteristics or criteria of hazardous waste as described in rules adopted pursuant to chapter 91, regardless of whether the substance is a virgin or waste material as defined under state or federal law.

"Label" means the display of all written, printed, or graphic matter, upon the immediate container, or a statement accompanying a fertilizer, soil amendment, or liming material.

"Labeling" includes all written, printed, or graphic matter, upon or accompanying a fertilizer, soil amendment, or liming material, and any advertisement, brochure, poster, television or radio announcement used in promoting the sale of such products.

"Liming material" means all suitable materials containing calcium or magnesium in chemical form, physical condition, and quantity capable of neutralizing soil acidity, that includes, but is not limited to, limestone, burnt lime, marl, and industrial byproducts meeting the standards established under this chapter.

"Organic waste" means grass clippings, leaves, weeds, bark, plantings, prunings, and other vegetative wastes, uncontaminated wood waste from logging and milling operations, food wastes, food processing wastes, and materials derived from these wastes through composting.

"Soil amendment" means any substance that is intended to improve the physical characteristics of the soil, except composted material, commercial fertilizers, agricultural liming materials, unmanipulated animal manures, unmanipulated vegetable manures, food wastes, food processing wastes, and materials exempted by rule adopted pursuant to chapter 91.

"Waste-derived product":

(1) Means any fertilizer, agricultural mineral, agricultural amendment, or liming material derived in whole or in part from hazardous waste as defined in section 342J-2 or in rules adopted pursuant to chapter 91, or solid waste as defined in section 342G-1 or in rules adopted pursuant to chapter 91;

(2) Does not include:

(A) Biosolids, biosolids-derived products, domestic septage, and domestic wastewater treatment facility solids; or

(B) Reclaimed water or treated effluent.

Waste-derived products are subject to full regulation.

§ -3 Standards. (a) The department shall establish standards for hazardous substances that are not plant nutrients, at the lowest level detectable for fertilizer, soil amendment, or liming material.

At a minimum, the department shall establish the nondetectable limit, for the following nonnutritive controlled substances: aluminum, antimony, arsenic (total As including As III and As V), barium, beryllium, cadmium, chromium (total Cr including Cr III and Cr VI), lead, mercury (total Hg), nickel, silver, thallium, vanadium, and uranium.

For plant nutrients, the limit shall be the nondetectable limit except in products disclosing the element's presence, in which case the limit shall be set at an agronomically appropriate level for: boron, chlorine, cobalt, copper, iron, manganese, molybdenum, selenium, and zinc.

(b) The department shall review these standards at least once every five years.

§ -4 Registration application. (a) No person may sell, offer for sale, or distribute a fertilizer, soil amendment, or liming material in this State until it has been registered with the department by the producer, importer, or packager of that product.

(b) Not less than ninety days prior to applying for registration, the registrant shall submit a two-pound sample of the fertilizer, soil amendment, or liming material to the department for analysis.

The sample shall be drawn, using the method previously defined for official samples, and marked, certified, and submitted, as prescribed by the department. The applicant shall pay an analysis fee at the time the sample is submitted. The department may assess a reasonable fee for the analysis and shall complete the analysis within ninety days.

(c) An application for registration shall be made on a form furnished by the department and shall include the following:

(1) The product's name, brand, and grade;

(2) The guaranteed analysis;

(3) The registrant's name, address, and phone number;

(4) A copy of the label and labeling for each product being registered;

(5) Identification of any product that is a waste-derived fertilizer, soil amendment, or liming agent, or derived from a controlled substance including the source of each ingredient material including nutrients, inactive ingredients, or fillers; and

(7) The department's report regarding the concentration of each hazardous substance in each product being registered.

(d) The fertilizer, soil amendment, or liming material registrant is responsible for proving that its product complies with this chapter as a condition of registration.

(e) After the department receives the completed application, the department shall evaluate whether the use of the proposed fertilizer is consistent with the following:

(1) Integrated Solid Waste Management, chapter 342G;

(2) Hazardous Waste Management, chapter 342J;

(3) This chapter; and

(4) 42 U.S.C. section 6901 et seq., the Resource Conservation and Recovery Act.

The department shall apply the most stringent standard for any controlled substance.

The evaluation under this subsection shall be completed within sixty days of receiving the completed application, including all information required under this chapter.

(f) All fertilizers, soil amendments, or liming materials currently registered shall not be automatically renewed and shall be subject to the standards established under this chapter. The department, however, may grant extensions not to exceed six months and balance the needs of the public's health and safety with respect to the consumer's timely access to fertilizer products.

(g) The department shall establish reasonable registration fees to ensure the program is self-supporting and capable of supporting the purchase, installation, and operation of the requisite testing equipment and the hiring of necessary personnel for laboratory and enforcement purposes.

§ -5 Labels. (a) Notwithstanding any other law to the contrary, the department shall examine the product registration application form, labels, and labeling for conformance with this chapter. In determining whether approval of a labeling statement or ingredient guarantee is appropriate, the department may require a written statement describing the methodology of laboratory analysis utilized or any reference material relied upon to support a label statement or ingredient guarantee.

The required analysis of hazardous substances conducted by the department shall be considered conclusive evidence of whether any controlled substances are present.

(b) If the application and appropriate labels are in proper form, contain the required information, and the products comply with standards established under this chapter, the products shall be registered by the department and a certificate of registration shall be issued to the applicant.

(c) The department may adopt labeling rules pursuant to chapter 91.

§ -6 Adulteration and mislabeling. (a) No person may distribute an adulterated fertilizer, soil amendment, or liming material within the State.

A fertilizer, soil amendment, or liming material is adulterated if:

(1) It contains any substance in a sufficient amount that may render it injurious to plant life, animals, humans, aquatic life, soil, or water when applied in accordance with directions for use on the label;

(2) The source or relative quantity of any ingredient differs from the source or quantity disclosed in the registration application or any additional material requested by the department in support of the registration process; or

(3) The quantity of any controlled substance exceeds the standard set under this chapter.

(b) No person may distribute a mislabeled product within the State. A product is mislabeled if:

(1) A waste-derived fertilizer, soil amendment, or liming material is not designated as such on the label; or

(2) The label or labeling differs in any way from the label or labeling approved by the department during the registration process.

§ -7 Illegal acts, stop sale, and license cancellation. (a) It shall be unlawful for any person to:

(1) Distribute an adulterated or misbranded fertilizer, soil amendment, or liming material; or

(2) Fail, refuse, or neglect to place upon, or attach to, each package of fertilizer, soil amendment, or liming material distributed within the State, a label or labeling identical to that approved by the department during the registration process.

(b) Illegal fertilizers, soil amendments, or liming materials are subject to immediate stop sale, use, or removal from distribution in this State, and may be seized, condemned, and disposed.

(c) The department may cancel, revoke, or refuse to register any fertilizer, soil amendment, or liming material, and may refuse to license a distributor under this chapter if the department has reasonable cause to believe that the registrant has:

(1) Sold, distributed, or used a misbranded or adulterated fertilizer, soil amendment, or liming material; or

(2) Been convicted, in this or any other state, of a civil or criminal charge for which a permit may be revoked, suspended, annulled, amended, or refused under this chapter.

§ -8 Seizure for noncompliance. (a) Any fertilizer, soil amendment, or liming material not in compliance with this chapter shall be subject to seizure on complaint by the department to a court of competent jurisdiction in which the product is located.

(b) In the event the court finds, upon application by the department, that a fertilizer, soil amendment, or liming material violates this chapter or the rules adopted therefor, and orders its condemnation, the fertilizer, soil amendment, or liming material shall be disposed of in a manner consistent with the quality of the product and the laws of the State; provided that in no instance shall the disposition of the condemned material be ordered by the court without first providing the claimant an opportunity to apply to the court for permission to process or relabel the fertilizer, soil amendment, or liming material to comply with this chapter and applicable rules.

(c) All costs associated with the disposal of a fertilizer shall be the responsibility of the distributor, owner, or custodian of the fertilizer, soil amendment, or liming material unless the distributor, owner, or custodian is a consumer or a transporter of the product. A consumer or transporter shall not be responsible for disposal costs. All costs shall be assessed against the registrant, licensee, or the person the court finds caused the fertilizer's, soil amendment's, or liming material's unlawful condition.

(d) No state court shall award damages due to administrative action taken under this chapter including refusal to register, registration revocation or cancellation, stop sales, or seizures where the court finds that there was probable cause for the administrative action.

(e) Every person who fails to comply with this chapter, or any rule adopted therefor, may be subject to a civil penalty, as determined by the department, in an amount of not more than $7,500 for every violation. Each violation shall be a separate and distinct offense.

§ -9 Citizen initiative. Any person may commence a civil action:

(1) Against any person for failure to comply with this chapter; or

(2) Against the department where there is an alleged failure of the department to perform any act or duty under this chapter that is not discretionary; provided that the department shall be given a sixty day notice of such action to respond and to attempt to resolve the dispute.

§ -10 Public disclosure. (a) The department shall publish at least annually and in a form it deems proper:

(1) Information concerning the distribution of fertilizers, soil amendments, and liming materials; and

(2) Results of analyses based on official samples as compared with the analyses guaranteed, noting particularly anywhere the level of a controlled substance exceeds statutory levels.

(b) The published information shall be made available to the public.

(c) The department shall biennially prepare a report to the legislature presenting information on levels of nonnutritive substances in fertilizers, results from department testing of products that were sampled, and interim or final results from any field studies conducted under the requirements of this chapter.

§ -11 Enforcement. (a) The department shall enforce all provisions of this chapter.

(b) The department shall allocate necessary personnel to sampling and analysis to effectuate this chapter."

SECTION 2. This Act shall take effect upon its approval.

INTRODUCED BY:

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