Inspection, sampling and analysis. 94.64(8)(a)
The department shall inspect, sample and analyze fertilizer distributed within the state at such time and place and to such extent as is necessary to determine compliance with this section.
The department may enter, at all reasonable times, any building, conveyance or premises used in the manufacture and distribution of fertilizer in this state to determine compliance with this section and to stop any conveyance transporting fertilizer for the purpose of inspecting and sampling the fertilizer and examining its labeling.
Manufacturers or distributors of fertilizer shall submit to the department, on request, fertilizer samples, copies of labeling or any other data or information which the department requests concerning composition and claims and representations made for fertilizer manufactured or distributed by them in this state.
Use of funds.
At the end of each fiscal year, the moneys collected under sub. (4) (a) 2.
and s. 94.65 (6) (a) 3.
shall be forwarded to the University of Wisconsin System to be used for research on soil management, soil fertility, plant nutrition problems and for research on surface water and groundwater problems which may be related to fertilizer usage; for dissemination of the results of the research; and for other designated activities tending to promote the correct usage of fertilizer materials.
Fertilizer research council.
The fertilizer research council shall recommend projects to be financed by fertilizer research funds. Members of the council shall meet at least annually to select projects to recommend for funding. The recommendations shall be made by majority vote of the council. If the University of Wisconsin System is unable to carry on the projected research, the council may recommend other appropriate nonprofit research institutions or agencies for receipt of funds.
The department may promulgate rules:
Requiring that the guaranteed analysis of phosphorus and potassium be expressed in the elemental form. If adopted, such rule shall not take effect prior to July 1, 1972, and shall provide for an additional period of at least 5 years during which both the oxide and the elemental guarantees for phosphorus and potassium may be given on the same label.
Regulating the sale and labeling of fertilizer, including warning or caution statements or directions for use in connection with the labeling of fertilizer.
Governing methods of sampling, testing, examining and analyzing fertilizer.
Prescribing tolerances for deficiencies found in percentages of plant nutrient guaranteed to be present.
Prescribing the manner in which grade and guaranteed analysis shall be declared on the label.
Establishing standards of identity and purity for fertilizer materials.
Prescribing standards for the exemption of mixed fertilizers from the requirement under sub. (3m) (a)
Establishing standards and procedures to review an application for a permit or an amended permit for the distribution of a nonagricultural or special-use fertilizer under sub. (3m) (b)
The department shall publish, at least annually, and in such form as it deems proper, information concerning the sales of fertilizers, together with other data on their production and use as it considers advisable, and a report of the results of the analyses based on official samples of fertilizers sold within the state compared with the analyses guaranteed on the product label. Information concerning the production and use of fertilizers shall be shown separately for the periods July 1 to December 31 and January 1 to June 30 of each year. No disclosure shall be made of the operations of any person.
Stop sale orders.
The department may issue and enforce a written or printed stop sale order to the owner or custodian of any lot or container of fertilizer distributed in violation of this section or of rules promulgated under this section. The order shall prohibit the sale or removal of the fertilizer, except as authorized by the department, until it has been brought into compliance with the law or until a plan for disposition is agreed upon with the department in writing. The stop sale order shall have the effect of a special order under s. 93.18
and shall be subject to judicial review if, within 10 days after service of the order, a request for a hearing is made to the department.
Temporary holding orders.
A temporary holding order may be issued whenever the department has reason to believe any lot or container of fertilizer may not be in compliance with the law pending further evaluation or laboratory examination and analysis. A temporary holding order shall be effective for no more than 15 days but may be extended for an additional 15-day period as may reasonably be necessary to complete sampling, analysis and evaluation of the fertilizer and its labeling. The fertilizer shall be released prior to the expiration of such temporary period if found to be in compliance with the law. If found to be in violation of the law, the temporary holding order shall be extended by notice, in writing, to the owner or custodian and a stop sale order issued prohibiting the further movement or disposition of the fertilizer without consent of the department, subject to the right of hearing before the department if requested within 10 days after service of such notice and stop sale order.
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.
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.
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.
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
See also ch. ATCP 40
, Wis. adm. code.
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
Restrictions on the use and sale of fertilizer containing phosphorus. 94.643(1)(a)
“Fertilizer" has the meaning given in s. 94.64 (1) (e)
, except that “fertilizer" does not include manipulated animal or vegetable manure or finished sewage sludge product.
“Manipulated" means ground; pelletized; mechanically dried; packaged; supplemented with substances, including plant nutrients, that do not contain phosphorus; or otherwise treated in a manner designed to facilitate sale or distribution as a fertilizer or soil or plant additive.
“Turf" means land, including residential property, golf courses, and publicly owned land, that is planted in closely mowed, managed grass, except that “turf" does not include pasture, land used to grow grass for sod, or any other land used for agricultural production.
Except as provided in par. (b)
, no person may intentionally apply to turf fertilizer that is labeled as containing phosphorus or available phosphate.
does not apply to a person who applies fertilizer in order to establish grass, using seed or sod, during the growing season in which the person began establishing the grass.
does not apply to a person who applies fertilizer to an area if the soil in the area is deficient in phosphorus, as shown by a soil test performed no more than 36 months before the application by a laboratory.
No person may apply fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to turf when the ground is frozen.
No person may intentionally apply turf fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to an impervious surface. A person who accidentally applies turf fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to an impervious surface shall immediately remove it.
Restriction on sale.
No person may sell at retail turf fertilizer that is labeled as containing phosphorus or available phosphate if the person knows that the purchaser intends to use the fertilizer for a purpose other than one of the following:
For establishing grass, using seed or sod, during the growing season in which the purchaser began establishing the grass.
For application to an area if the soil in the area is deficient in phosphorus, as shown by a soil test performed no more than 36 months before the application by a laboratory.
For application to pasture, land used to grow grass for sod, or any other land used for agricultural production.
Restriction on display.
No person who sells fertilizer at retail may display turf fertilizer that is labeled as containing phosphorus or available phosphate. A person who sells fertilizer at retail may post a sign advising customers that turf fertilizer containing phosphorus is available upon request for uses permitted by sub. (2) (b)
Any person who violates this section may be required to forfeit not more than $50 for a first violation and not less than $200 nor more than $500 for a 2nd or subsequent violation.
History: 2009 a. 9
Fertilizer and pesticide storage. 94.645(1)(b)
“Bulk pesticide" means liquid pesticide in a container larger than 55 gallons or solid pesticide in undivided quantities greater than 100 pounds.
“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.
“Fertilizer" has the meaning specified under s. 94.64 (1) (e)
, except that this term does not include anhydrous ammonia.
“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.
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)
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.
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.
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.
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.
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.
See also chs. ATCP 31
, Wis. adm. code.
Soil and plant additives. 94.65(1)(1)
In this section:
“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:
Defined as an active ingredient by department rule.
“Brand or product name" means a name, term, design or trademark which identifies the product.
“Distribute" means to import, consign, sell, offer for sale, solicit orders for sale or otherwise supply for use in this state.
“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.
“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.
“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:
Wood ashes or unmanipulated animal or vegetable manure, unless distributed under another name or description.
Any other substance exempted by department rule.
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. A license expires on September 30 annually.
No license is required of a person who distributes a soil or plant additive of a license holder, if the person:
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
Makes no content or performance claim for the soil or plant additive other than the written claim of the license holder.