94.64(11)(c)
(c)
Seizure, condemnation and sale. Fertilizer not in compliance with this section shall be subject to seizure on complaint of the department to a court having jurisdiction. If the court finds that the fertilizer is in violation of this section and orders the seizure thereof, it shall be disposed of as the court directs. Disposition shall not be ordered by the court without first granting the owner or custodian, at his or her request, reasonable opportunity to reprocess or relabel the fertilizer under supervision of the department to bring it into compliance with this section.
94.64(11)(d)
(d)
Injunction. Upon petition of the department any court having equity jurisdiction may grant a temporary or permanent injunction restraining any person from violating or continuing to violate this section or any rules thereunder notwithstanding the existence of other remedies at law.
94.64(12)(a)(a) Any person who violates this section or any rule issued thereunder shall forfeit $50 for the first violation and not less than $200 nor more than $500 for any subsequent violation. Any willful violation shall constitute a misdemeanor and any person convicted thereof shall be fined not less than $250 nor more than $5,000 or imprisoned in the county jail not more than one year or both.
94.64(12)(b)
(b) It is the duty of each district attorney to whom any violation is reported to cause appropriate actions or proceedings to be instituted for the collection of forfeitures or enforcement of other remedies. In any enforcement action the court may, in addition to other penalties provided in this subsection, order restitution to any party injured by the purchase of fertilizer sold in violation of the law. If the violator is convicted of a crime, restitution shall be in accordance with
s. 973.20.
94.64 Cross-reference
Cross Reference: See also ch.
ATCP 40, Wis. adm. code.
94.64 Annotation
A local government is not preempted by s. 94.701 (3) (a) from regulating the phosphorous content in weed and feed products. A weed and feed product is both a pesticide, which under s. 94.701 (3) (a), only the state can regulate, and a fertilizer, which local government can regulate. The definition of both "pesticide" and "fertilizer" as including a mixture of the two preserves both state regulation of pesticides and local regulation of fertilizers. The state regulates the pesticide components of the mixed products, local government the fertilizer components. Croplife America. Inc. v. City of Madison,
432 F.3d 732 (2005).
94.645
94.645
Fertilizer and pesticide storage. 94.645(1)(b)
(b) "Bulk pesticide" means liquid pesticide in a container larger than 55 gallons or solid pesticide in undivided quantities greater than 100 pounds.
94.645(1)(c)
(c) "Distribute" means to import, consign, sell, offer for sale, solicit orders for sale or otherwise supply fertilizer or pesticide for sale or use in this state.
94.645(1)(d)
(d) "Fertilizer" has the meaning specified under
s. 94.64 (1) (e), except that this term does not include anhydrous ammonia.
94.645(1)(e)
(e) "Manufacture" means to process, granulate, compound, produce, mix, blend or alter the composition of fertilizer or to manufacture, formulate, prepare, compound, propagate, package, label or process any pesticide.
94.645(2)(a)(a) Except as provided in
par. (b), every person who manufactures or distributes bulk fertilizer or bulk pesticides shall comply with the storage standards adopted under
sub. (3).
94.645(2)(b)
(b) This section does not apply to containers for liquid pesticide larger than 55 gallons if the larger containers are designed for emergency storage of leaking containers which are 55 gallons or smaller and are used only for that purpose.
94.645(3)
(3) Rules. The department shall adopt by rule standards for the storage of bulk fertilizer or bulk pesticides, for the purpose of protecting the waters of the state from harm due to contamination by fertilizer or pesticides. The rule shall apply to all persons who manufacture or distribute bulk fertilizer or bulk pesticides. The rule shall comply with
ch. 160. The rule may include different standards for new and existing facilities, but all standards shall provide substantially similar protection for the waters of the state.
94.645(4)(a)(a) The department shall enforce this section. The department may, by special order under
s. 93.18, prohibit a violation of rules promulgated under this section and require necessary measures to correct the violation. Special orders may be issued on a summary basis, without prior complaint, notice or hearing, where necessary to protect public health or the environment. A summary special order is subject to a subsequent right of hearing before the department, if a hearing is requested within 10 days after the date on which the order is served. Any party affected by the special order may request a preliminary or informal hearing pending the scheduling and conduct of a full hearing. Hearings, if requested, shall be conducted as expeditiously as possible after receipt of a request for hearing. Enforcement of a summary special order shall not be stayed pending hearing, except as otherwise ordered by the department.
94.645(4)(b)
(b) The circuit court for any county where violation of such an order occurs has jurisdiction to enforce the special order by injunctive and other appropriate relief.
94.645(5)
(5) Penalties. Any person who violates this section or any rule or order adopted under this section shall forfeit not less than $10 nor more than $1,000 for each violation. Each violation of this section or any rule or order under this section constitutes a separate offense and each day of continued violation is a separate offense.
94.645 Cross-reference
Cross Reference: See also chs.
ATCP 31,
32, and
33, Wis. adm. code.
94.65
94.65
Soil and plant additives. 94.65(1)
(1)
Definitions. In this section:
94.65(1)(a)
(a) "Active ingredient" means a component of a soil or plant additive from which the soil or plant additive derives all or part of its value or effectiveness and which is:
94.65(1)(a)2.
2. Defined as an active ingredient by department rule.
94.65(1)(b)
(b) "Brand or product name" means a name, term, design or trademark which identifies the product.
94.65(1)(c)
(c) "Distribute" means to import, consign, sell, offer for sale, solicit orders for sale or otherwise supply for use in this state.
94.65(1)(d)
(d) "Inert ingredient" means a component of a soil or plant additive which does not affect the performance or efficacy of the soil or plant additive.
94.65(1)(e)
(e) "Label" means the display of written, printed or graphic matter which is attached to, or forms a part of, the immediate container of a soil or plant additive, or which accompanies a bulk distribution of soil or plant additive.
94.65(1)(f)
(f) "Soil or plant additive" means any substance which is intended to be applied to seeds, soil or plants and which is designed for use or claimed to have value in promoting or sustaining plant growth; improving crop yield or quality; promoting or sustaining the fertility of the soil; or favorably modifying the structural, physical or biological properties of the soil for agricultural purposes. "Soil or plant additive" does not include:
94.65(1)(f)3.
3. Wood ashes or unmanipulated animal or vegetable manure, unless distributed under another name or description.
94.65(1)(f)5.
5. Any other substance exempted by department rule.
94.65(2)(a)(a) Except as provided under
par. (b), no person may manufacture or distribute a soil or plant additive in this state unless the person first obtains an annual license from the department. Application for a license or for renewal of a license shall be made on forms provided by the department and shall be accompanied by an annual license fee of $25. All licenses expire on March 31.
94.65(2)(b)
(b) No license is required of a person who distributes a soil or plant additive of a license holder, if the person:
94.65(2)(b)1.
1. Distributes the soil or plant additive under the name of the license holder and in the original container packaged and labeled by the license holder; and
94.65(2)(b)2.
2. Makes no content or performance claim for the soil or plant additive other than the written claim of the license holder.
94.65(3)(a)1.1. Except as provided under
subds. 2. and
3., no person may distribute a soil or plant additive in this state unless the person first obtains a permit from the department. A separate permit must be obtained for the distribution of each soil or plant additive.
94.65(3)(a)2.
2. No permit is required of a person who distributes a soil or plant additive for which a permit has been issued to a permit holder, if the person:
94.65(3)(a)2.a.
a. Distributes the soil or plant additive under the name of the permit holder and in the original container packaged and labeled by the permit holder; and
94.65(3)(a)2.b.
b. Makes no content or performance claim for the soil or plant additive other than the written claim of the permit holder.
94.65(3)(a)3.
3. No permit is required for the landspreading of sewage sludge under a pollutant discharge elimination system permit issued by the department of natural resources under
s. 283.31 or
283.35.
94.65(3)(b)
(b) The applicant shall apply for a permit on a form provided by the department and shall submit with the application a proposed product label and a nonrefundable fee of $100. The department may require that the applicant provide substantiation of application information under
sub. (4). The department may also require the applicant to make affirmative label and advertising disclosures if, in the absence of the disclosures, the department determines that the label or advertising of a soil or plant additive is deceptive or misleading.
94.65(3)(c)1.1. Except as provided in
s. 93.135, if the department finds that the applicant has fulfilled the requirements of
par. (b), the department shall issue a permit.
94.65(3)(c)2.
2. If the department finds that the applicant has failed to fulfill the requirements of
par. (b), the department shall issue a notice of denial of the permit.
94.65(3)(d)1.1. Any person who wishes to change the active ingredient contents or the recommended amount or frequency of application of a soil or plant additive for which the person has received a permit under
par. (c) 1. shall apply to the department for an amended permit.
Paragraphs (b) and
(c) apply to the issuance of amended permits.
94.65(3)(d)2.
2. Any person who wishes to revise the label of a soil or plant additive for which the person has received a permit under
par. (c) 1., including a label revision which does not necessitate the issuance of an amended permit, shall file the revised label with the department prior to distributing the soil or plant additive bearing the revised label.
94.65(3)(e)
(e) No person who has been issued a permit or amended permit under this subsection may:
94.65(3)(e)1.
1. Transfer the permit or amended permit to another person.
94.65(3)(e)2.
2. Distribute or promote the distribution of the soil or plant additive using any performance, use or efficacy claim which exceeds that allowed by the permit or amended permit or which is inconsistent with the approved product label.
94.65(3)(f)
(f) Issuance of a permit or amended permit under this subsection is neither an endorsement nor a warranty by the department.
94.65(4)
(4) Substantiation requirements. 94.65(4)(a)(a) As a condition to the issuance of a permit or amended permit under
sub. (3), the department may require that the applicant substantiate, by scientific evidence:
94.65(4)(a)1.
1. The efficacy and usefulness of the soil or plant additive if applied under conditions existing in this state at the amount and frequency recommended by the applicant.
94.65(4)(a)2.
2. The truthfulness of any statement made on the proposed soil or plant additive label or in a permit or amended permit application.
94.65(4)(b)
(b) The department may require that the substantiation under
par. (a) 1. include replicable results of controlled experimental studies using the soil or plant additive, the names and qualifications of the researchers performing the studies and a complete description of the conditions and procedures of the studies.
94.65(4)(c)
(c) The department may request assistance from the University of Wisconsin-Madison College of Agricultural and Life Sciences in evaluating any substantiating evidence required under this subsection.
94.65(5)
(5) Label. Every soil or plant additive distributed in this state shall be clearly and conspicuously labeled with the following information:
94.65(5)(a)
(a) The name and address of the permit holder under
sub. (3).
94.65(5)(b)
(b) The brand or product name of the soil or plant additive.
94.65(5)(c)
(c) The net weight or liquid measure of the soil or plant additive contained in the package, container or bulk shipment to which the label refers.
94.65(5)(d)
(d) The specific purpose or use for which the soil or plant additive is claimed to be effective.
94.65(5)(e)
(e) Complete directions for use of the soil or plant additive, including the recommended amount and frequency of application.
94.65(5)(f)
(f) A guaranteed analysis of the contents of the soil or plant additive which shall include:
94.65(5)(f)1.
1. The name and percentage by weight of each active ingredient, listed under the heading "ACTIVE INGREDIENTS". For microbiological products, the statement of active ingredients shall state the number and kind of viable microorganisms per milliliter of liquid product, or per gram of nonliquid product.
94.65(5)(f)2.
2. The name and percentage by weight of each inert ingredient, listed under the heading "INERT INGREDIENTS".
94.65(5)(g)
(g) Any other information required by department rule.
94.65(6)(a)(a) Each person holding a permit for the distribution of a soil or plant additive under
sub. (3) shall:
94.65(6)(a)1.
1. Annually by March 31, file with the department a tonnage report setting forth the number of tons of each soil or plant additive distributed during the preceding year by that person or by any other person authorized under
sub. (3) (a) 2. to distribute under the name of that person and pay to the department a fee of 25 cents per ton so distributed. The minimum total fee is $25.
94.65(6)(a)2.
2. Maintain, for 2 years following the date the tonnage report required under
subd. 1. is filed, distribution records upon which the tonnage report is based. The permit holder shall make the distribution records available for inspection, copying and audit by the department upon request.
94.65(6)(a)3.
3. Annually by March 31, pay to the department a research fee of 10 cents for each ton of soil or plant additive distributed as described in the tonnage report filed under
subd. 1. The minimum research fee is $1 for 10 tons or less. The department shall credit this fee to the appropriation account under
s. 20.115 (7) (h).
94.65(6)(a)4.
4. Annually by March 31, pay to the department a groundwater fee of 10 cents for each ton of soil or plant additive distributed, as described in the tonnage report filed under
subd. 1. The minimum groundwater fee is $1 for 10 tons or less. All groundwater fees shall be credited to the environmental fund for environmental management.
