Requires all fertilizers, soil amendments, and liming materials to be registered with DOH before being distributed within the State.

A BILL FOR AN ACT

SECTION 1. Humans and the environment are being exposed to a large number of hazardous substances used in fertilizers, soil amendment, and liming materials each year, and many people are not even aware of how extensive or dangerous the exposure is. There is great scientific uncertainty about the environmental transport and plant uptake rates for hazardous substances in these products and some present an unreasonable risk of injury to public health and welfare, as well as the environment.

Current regulations fail to systematically integrate economic and environmental goals, putting both at risk. Any fertilizers, soil amendments, and liming materials that do not meet state standards for total controlled substances pose an even greater threat to humans, plant life, animals, aquatic life, soil and water, and the other facets of the environment.

Therefore, the legislature finds that hazardous substances added to fertilizers, soil amendments, and liming materials need to be regulated to protect the health, safety, and welfare of the citizens of the State and protect and conserve the State's natural resources and environment. Accordingly, the purpose of this Act is to:

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§   -A Definitions. As used in this chapter:

"Controlled substance" means any substance identified or designated as a hazardous substance and any substance originating from a virgin, waste, or non-waste source, whether or not the process to incorporate the substance into fertilizer is defined as use, recycling, reuse, or disposal substance under any other provisions.

"Distribute" means to import, consign, produce, compound, mix, or blend any fertilizer, soil amendment, or liming material or to offer for sale, sell, barter, or supply any fertilizer, soil amendment, or liming material.

"Fertilizer" means a substance containing one or more recognized plant nutrients that is used for its plant nutrient content or designated for use or claimed to have value in promoting plant growth. Fertilizers shall include manipulated manure and any other commercial, bulk, custom, and specialty fertilizers. Fertilizers shall not include unmanipulated manure, organic waste-derived material, lime, gypsum, and any other materials the director deems unnecessary.

"Hazardous substance" shall have the same meaning as in chapter 128D, and the director may designate any other substance, pollutant, or contaminant as a hazardous substance by rules adopted pursuant to chapter 91.

"Label" means all written, printed, or graphic matter on a container or a statement accompanying a fertilizer, soil amendment, or liming material.

"Labeling" includes any label, advertisement, brochure, poster, or television or radio announcement used to promote the sale of the fertilizer, soil amendment, or liming material.

"Liming material" means all calcium or magnesium containing materials capable of neutralizing soil acidity, including limestone, burnt lime, marl, and any industrial by-products.

"Manipulated manure" means substances primarily composed of animal excreta, plant remains, or a mixture of both that has been processed.

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

"Product" means any fertilizer, soil amendment, or liming material required to be registered under this chapter.

"Soil amendment" means any substance intended to improve the physical characteristics of soil. Soil amendment does not include any composted material, commercial fertilizers, agricultural liming materials, unmanipulated manure, food wastes, food-processing wastes, and any other material the director excludes by rules pursuant to this chapter.

"Unmanipulated manure" means substances primarily composed of animal excreta, plant remains, or a mixture of both that has not been processed.

"Waste-derived product" means any fertilizer, agricultural mineral, agricultural amendment, or liming material derived in whole or in part from hazardous wastes as defined in chapter 342J, solid wastes as defined in chapter 342G, or any other substance designated by rules adopted pursuant to this chapter. Waste-derived product shall not include:

§   -B Hazardous substances; maximum allowable quantity. (a) The director shall establish the maximum allowable quantity for each nonplant-nutrient hazardous substance that may be contained in fertilizers, soil amendments, and liming materials. The maximum allowable limit shall be set at the lowest level detectable by the State's agricultural laboratory or a designated laboratory.

The director shall establish the maximum allowable limit for the following controlled substances before establishing such limit for any other substances:

provided that if a product label discloses the presence of any of the listed elements, the maximum allowable limit shall be set at an agronomically appropriate level.

(b) The director shall review and adjust, if necessary, all maximum allowable levels every five years.

§   -C Registration; process. (a) No person shall distribute a fertilizer, soil amendment, or liming material unless it has been registered with the department in accordance with the provisions in this chapter.

(b) Not less than ninety days before submitting an application for registration, the registrant shall submit a two-pound sample of the product to the department for analysis. The department shall:

(c) The application for product registration shall contain, but not be limited to, the following information:

(d) The registrant shall be responsible for submitting all required and requested material to the department and for proving that its product meets all state registration requirements under this chapter.

(e) After receiving the completed application, the department shall evaluate all of the information submitted and determine whether the use of the proposed fertilizer, soil amendment, or liming material is consistent with:

(f) After receiving a completed application for product registration, the department shall determine within sixty days whether to register the product.

(g) The department may cancel, revoke, or refuse to register any fertilizer, soil amendment, or liming material if the department reasonably believes that the registrant has sold, distributed, or used a mislabeled or adulterated fertilizer, soil amendment, or liming material.

(h) The director may establish reasonable fees for the registration of products to cover the cost of reviewing, analyzing, and registering the products. Collected fees shall be deposited in the general fund.

§   -D Labeling. (a) No misleading or false information or statement shall appear on any product labeling, package, or delivery slip. Each product's labeling shall contain an ingredient guarantee. The ingredient guarantee shall include all of the ingredients and chemical compounds combined to create the product.

(b) The department shall examine the registration application form and all product labeling for accuracy, appropriateness, and conformity to the requirements in this chapter. In determining whether approval of a labeling statement or ingredient guarantee is appropriate, the department may require the registrant to submit a written statement that describes the laboratory analysis' methodology or any reference material used to support the label's statement or ingredient guarantee.

The required analysis of hazardous substances conducted by the department shall constitute prima facie evidence of whether any controlled substances are present.

(c) If the application and labeling are in proper form, contain the required information, and properly correspond with the product and the product complies with section -C(e), the product shall be registered by the department.

(d) The director may establish additional labeling requirements necessary to protect the State's consumers, farmers, and environment.

§   -E Periodic sampling and analysis. (a) At any time it may deem necessary, the department may inspect, sample, or analyze any registered fertilizer, soil amendment, or liming material to determine whether the product is in compliance with the provisions of this chapter.

(b) Any citizen may submit one sample of any product under this chapter per calendar year for laboratory analysis. There shall be no charge for the once-a-year analysis, and the citizen shall sign a certifying statement for analysis. The statement shall state: "I certify that I have not previously submitted a sample for free laboratory analysis during the current calendar year."

If the sample is collected in accordance with the following procedures, the sample may be analyzed for its controlled substance content:

(c) Samples collected following the procedures prescribed by this section shall be considered with the same weight as those samples collected by the department.

(d) Not more than two samples shall be collected from a manufacturer's plant in one calendar year, regardless of if the sample is collected by a citizen or by the department; except by a clear showing that the manufacturer's treatment method has changed significantly since the last sample was collected.

§   -F Adulteration or mislabeling. (a) No person shall distribute an adulterated fertilizer, soil amendment, or liming material. A product is adulterated if:

(b) No person shall knowingly distribute a mislabeled fertilizer, soil amendment, or liming material. A product is mislabeled if:

§   -G Enforcement. (a) If the director determines that any person has violated or is violating any provision of this chapter or any rule adopted pursuant to this chapter, the director may do one or more of the following:

(b) Any order issued by the department may be rescinded in writing when all provisions of this chapter have been complied with and all costs and expenses owed to the department have been paid.

(c) The cost of disposing any non-compliant product shall be the responsibility of the distributor, owner, or custodian of the fertilizer, soil amendment, or liming material, unless that distributor, owner, or custodian is only transporting the product. The consumer or transporter shall not be responsible for disposal costs.

§   -H Penalties. Any person who violates this chapter or rule adopted pursuant to this chapter may be fined up to $7,000 for each separate offense. Each day of each violation shall constitute a separate offense.

§   -I Citizen's suits. (a) Except as provided in subsection (b), any person may commence a civil action on the person's own behalf against any person who is alleged to be in violation of any provision of this chapter.

(b) No action may be commenced under subsection (a):

§   -J Public disclosure. (a) The department shall publish a report of the following information at least once a year:

(b) Copies of the report shall be available at the department during regular business hours, and the report shall also be available on the department's website.

(c) The department shall submit a report to the legislature biennially. The report shall summarize the levels of nonnutritive substances in fertilizers and the results from the department's product testing.

§   -K Powers and duties of the department. The department shall adopt rules pursuant to chapter 91 to implement the provisions in this chapter."

SECTION 3. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 4. This Act shall take effect upon its approval.