94.64(11)(b) (b) 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.
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) (12) Penalties.
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).
94.643 94.643 Restrictions on the use and sale of fertilizer containing phosphorus.
94.643(1)(1)Definitions. In this section:
94.643(1)(a) (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.
94.643(1)(ag) (ag) “Finished sewage sludge product" has the meaning given in s. 94.64 (1) (fm).
94.643(1)(ar) (ar) “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.
94.643(1)(b) (b) “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.
94.643(2) (2) Restrictions on use.
94.643(2)(a)(a) Except as provided in par. (b), no person may intentionally apply to turf fertilizer that is labeled as containing phosphorus or available phosphate.
94.643(2)(b)1.1. Paragraph (a) 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.
94.643(2)(b)2. 2. Paragraph (a) 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.
94.643(2)(c) (c) No person may apply fertilizer, manipulated animal or vegetable manure, or finished sewage sludge product to turf when the ground is frozen.
94.643(2)(d) (d) 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.
94.643(3) (3) 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:
94.643(3)(a) (a) For establishing grass, using seed or sod, during the growing season in which the purchaser began establishing the grass.
94.643(3)(b) (b) 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.
94.643(3)(c) (c) For application to pasture, land used to grow grass for sod, or any other land used for agricultural production.
94.643(4) (4) 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).
94.643(5) (5) Penalty. 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.
94.643 History History: 2009 a. 9.
94.645 94.645 Fertilizer and pesticide storage.
94.645(1)(1)Definitions. In this section:
94.645(1)(a) (a) “Bulk fertilizer" has the meaning specified under s. 94.64 (1) (b).
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(1)(f) (f) “Pesticide" has the meaning specified under s. 94.67 (25).
94.645(1)(g) (g) “Waters of the state" has the meaning specified under s. 281.01 (18).
94.645(2) (2) Storage.
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) (4) Enforcement.
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 History History: 1983 a. 410; 1985 a. 135 s. 85; 1995 a. 227.
94.645 Cross-reference Cross-reference: See also chs. ATCP 31 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)1. 1. A living microorganism; or
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)(em) (em) “Sewage sludge" has the meaning specified in s. 94.64 (1) (pm).
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)1. 1. Fertilizer, as defined in s. 94.64 (1) (e).
94.65(1)(f)2. 2. Liming material, as defined in s. 94.66 (1) (am), if the liming material is distributed solely for the purposes stated in s. 94.66 (1) (am).
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)4. 4. Pesticides registered under 7 USC 136 or by the department.
94.65(1)(f)5. 5. Any other substance exempted by department rule.
94.65(1)(g) (g) “Unmanipulated animal or vegetable manure" has the meaning specified in s. 94.64 (1) (t).
94.65(2) (2) License.
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. A license expires on September 30 annually.
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) (3) Permit.
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.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 20 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on November 11, 2019. Published and certified under s. 35.18. Changes effective after November 11, 2019, are designated by NOTES. (Published 11-11-19)