May 10, 2005, Introduced by Rep. Whitmer and referred to the Committee on Agriculture.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 8302, 8304, 8305, and 8333 (MCL 324.8302,
324.8304, 324.8305, and 324.8333), sections 8302, 8305, and 8333 as
amended by 2002 PA 418 and section 8304 as amended by 2004 PA 24,
and by adding sections 8315a, 8315b, 8316a, and 8321a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 8302. (1) "Active ingredient" means an ingredient that
will prevent, destroy, repel, or mitigate pests, or that will act
as a plant regulator, defoliant, or desiccant or otherwise alter
the behavior of plants or products.
(2) "Activity plan" means a plan for the mitigation of
groundwater contamination at a specific location, including a time
frame for implementation.
(3)
"Adulterated", applies to a pesticide if its in
reference to a pesticide, means that the pesticide's strength or
purity is less than, or significantly greater than, the professed
standard or quality as expressed on its labeling or under which it
is
sold; if that a substance was substituted wholly or in part
for
a pesticide; or if that a valuable constituent of the
pesticide was wholly or in part abstracted.
(4) "Agricultural commodity" means a plant or part of a plant,
or an animal or animal product, produced primarily for sale,
consumption, propagation, or other use by human beings or animals.
(5) "Animal" means all vertebrate and invertebrate species,
including, but not limited to, human beings and other mammals,
birds, fish, and shellfish.
(6) "Antimicrobial pesticide" means a pesticide that is
intended to disinfect, sanitize, reduce, or mitigate growth or
development
of microbial organisms, as defined under the federal
insecticide,
fungicide, and rodenticide act, chapter 125, 86 Stat.
973,
7 U.S.C. 136 to 136i, 136j to 136r, and 136s to 136y FIFRA.
(7) "Application season" means a time period of pesticide
application, consistent with the category of application, within a
calendar year.
(8) "Aquifer" means a geologic formation, a group of
formations, or a part of a formation capable of yielding a
significant amount of groundwater to wells or springs.
(9) "Aquifer sensitivity" means a hydrogeologic function
representing the inherent abilities of materials surrounding the
aquifer to attenuate the movement of pesticides into that aquifer.
(10) "Avicide" means a pesticide intended for preventing,
destroying, repelling, or mitigating pest birds.
(11) "Building manager" means the person who is designated as
being responsible for the building's pest management program and to
whom shall be made any reporting and notification shall be made
pursuant to this part or rules promulgated under this part.
(12) "Certified applicator" means an individual who is
authorized under this part to use and supervise the use of a
restricted use pesticide.
(13) "Commercial applicator" means a person who is required to
be a registered or certified applicator under this part, or who
holds himself or herself out to the public as being in the business
of applying pesticides. A commercial applicator does not include a
person using a pesticide for a private agricultural purpose.
(14) "Commercial building" means any portion of a building
that is not a private residence where a business is located and
that is frequented by the public.
(15) "Commercial lawn application" means lawn application on
property that is not owned by or leased to the individual making
the lawn application.
(16) (15)
"Confirmed contaminant"
means a contaminant that
has been detected in at least 2 groundwater samples collected from
the same groundwater sampling point at an interval of greater than
14 days.
(17) (16)
"Contaminant" means any
pesticide originated
chemical, radionuclide, ion, synthetic organic compound,
microorganism, or waste that does not occur naturally in
groundwater or that naturally occurs at a lower concentration than
detected.
(18) (17)
"Contamination" means
the direct or indirect
introduction into groundwater of any contaminant caused in whole or
in part by human activity.
Sec. 8304. (1) "Health care facility" means a facility which
is not a private home and at which people may stay 1 or more nights
and receive medical care, such as a hospital or nursing home.
(2)
(1) "Inert
ingredient" means an ingredient that is not
active.
(3) (2)
"Ingredient statement" means :
(a) A a statement
of
the name and percentage of each active ingredient together with
in a pesticide, the total percentage of the inert ingredients in
the
pesticide, . (b) When and, if the pesticide
contains arsenic
in
any form, the ingredient statement shall include percentages
of total and water soluble arsenic, each calculated as elemental
arsenic.
(4) (3)
"Insect" means any of the numerous small
invertebrate animals generally having the body more or less
obviously segmented, for the most part belonging to the class
insecta, comprising 6-legged, usually winged forms, as for example
beetles, bugs, bees, and flies, and to other allied classes or
arthropods whose members are wingless and usually have more than 6
legs, as for example spiders, mites, ticks, centipedes, and wood
lice.
(5) (4)
"Insecticide" means a pesticide intended
for
preventing, destroying, repelling, or mitigating an insect.
(6) "Institution of higher education" means a public or
private institution in this state which offers a degree or course
of study beyond the twelfth grade.
(7) (5)
"Integrated pest management" means a pest
management
system that uses all suitable techniques in a total management
system to prevent pests from reaching unacceptable levels or to
reduce existing pest populations to acceptable levels.
(8) (6)
"Integrated pest management program" means
a program
for integrated pest management that includes at least all of the
following elements:
(a) The following integrated pest management practices and
principles:
(i) Site evaluation, including site description, inspection,
and monitoring and the concept of threshold levels.
(ii) Consideration of the relationship between pest biology and
pest management methods.
(iii) Consideration of all available pest management methods,
including population reduction techniques, such as mechanical,
biological, and chemical techniques and pest prevention techniques,
such as habitat modification.
(iv) Pest control method selection, including consideration of
the impact on human health and the environment.
(v) Continual evaluation of the integrated pest management
program to determine the program's effectiveness and the need for
program modification.
(b) Recordkeeping which shall be maintained by the applicator
and which shall include all of the following:
(i) The site address.
(ii) The date of service.
(iii) The target pest or pests.
(iv) The inspection report, including the number of pests found
or reported, and the conditions conducive to pest infestation.
(v) The pest management recommendations made by the
applicator, such as structural or habitat modification.
(vi) The structural or habitat modification or other measures
that were initiated as a part of the pest management program.
(vii) The name of each pesticide used.
(viii) Quantity of each pesticide used.
(ix) The location of the area or room or rooms where pesticides
were applied.
(x) The name of the applicator.
(xi) The name of the pest control firm, if a firm is employed,
and the emergency telephone number.
(c) Provision of the following information to the building
manager:
(i) The integrated pest management program and initial service
inspection record, which shall be provided at the time of, or made
available electronically within 48 hours after, the initial
service.
(ii) A record that includes the information specified in
subdivision (b), which shall be provided upon or made available
electronically within 48 hours after the completion of each
inspection, application, or service call.
(d) The acceptance of responsibility by the building manager
to post signs provided by the pesticide applicator in compliance
with rules promulgated under section 8325.
(9) (7)
"Label" means the written, printed, or
graphic
matter on or attached to the pesticide or device or any of its
containers or wrappers.
(10) (8)
"Labeling" means the label and all other
written,
printed, or graphic matter accompanying the pesticide or device, or
to which reference is made on the label or in literature
accompanying the pesticide or device, and all applicable
modifications or supplements to official publications of the EPA,
the United States departments of agriculture and interior, the
United States departments of education and health and human
services, state experiment stations, state agricultural colleges,
and other similar federal or state institutions or agencies
authorized by law to conduct research in the field of pesticides.
(11) "Lawn application" means the application of general use
pesticides to ground, trees, or shrubs but does not include any of
the following:
(a) The application of pesticides for the purpose of producing
an agricultural commodity.
(b) The application of pesticides around or near the
foundation of a building for the purpose of indoor pest control.
(c) The application of pesticides by or on behalf of agencies,
except that agencies shall be subject to visual notification
requirements applicable to commercial lawn applications under
section 8315a(7) if the application is within 100 feet of a
dwelling, public building, or public park.
(d) The application of pesticides on golf courses or turf
farms.
(12) (9)
"Maximum contaminant level" means that
term as it
is defined in title XIV of the public health service act, 42 USC
300f to 300j-25, and regulations promulgated under that act.
(13) (10)
"Method detection limit" means the minimum
concentration of a substance that can be measured and reported with
99% confidence that the analyte concentration is greater than 0 and
is determined from analysis of a sample in a given matrix that
contains the analyte.
(14) (11)
"Minor use" means the use of a pesticide
on a
crop,
animal, or site where any of the following exist apply:
(a) The total United States acreage for the crop or site is
less than 300,000 acres.
(b) The acreage expected to be treated nationally as a result
of that use is less than 300,000 acres annually.
(c) The use does not provide sufficient economic incentive to
support the initial registration or continuing registration of the
use.
(15) (12)
"Misbranded", applies to any in reference to a
pesticide
or device, means that the pesticide or
device if it is
an imitation of or is offered for sale under the name of another
pesticide ,
or if that
its labeling does not comply with
labeling requirements of this part, the rules promulgated under
this part, FIFRA, or regulations promulgated under FIFRA.
(16) (13)
"Molluscicide" means a pesticide intended
for
preventing, destroying, repelling, or mitigating a mollusk.
(17) "Multiple family dwelling" means a dwelling which is or
is to be occupied as the residence or home for the members of 3 or
more households living independently of each other.
Sec. 8305. (1) "Nematode" means invertebrate animals of the
phylum nemathelminthes and class nematoda, which are unsegmented
roundworms with elongated, fusiform, or sac-like bodies covered
with cuticle that inhabit soil, water, plants, or plant parts. A
nematode may also be called a nema or eelworm.
(2) "Noncommercial lawn application" means lawn application on
property owned by or leased to the individual making the lawn
application.
(3) "1- or 2-family dwelling" is any structure or portion
thereof which is or is to be occupied in whole or in part as the
residence or home for 1 household or for 2 households living
independently of each other.
(4) (2)
"Person" means an individual, partnership,
corporation, association, governmental entity, or other legal
entity.
(5) (3)
"Pest" means an insect, rodent, nematode, fungus,
weed, and other forms of terrestrial or aquatic plant or animal
life or virus, bacteria, or other microorganism, or any other
organism that the director declares to be a pest under section
8322, except viruses, fungi, bacteria, nematodes, or other
microorganisms in or on living animals.
(6) (4)
"Pesticide" means a substance or mixture
of
substances intended for preventing, destroying, repelling, or
mitigating pests or intended for use as a plant regulator,
defoliant, or desiccant. Pesticide does not include liquid chemical
sterilant products, including any sterilant or subordinate
disinfectant claims on such products, for use on a critical or
semi-critical device, as defined in section 201 of the federal
food,
drug, and cosmetic act, chapter 675,
52 Stat. 1040, 21
U.S.C.
USC 321. As used in this subsection:
(a) "Critical device" includes any device that is introduced
directly into the human body, either into or in contact with the
bloodstream or normally sterile areas of the body.
(b) "Semi-critical device" includes any device that contacts
intact mucous membranes but that does not ordinarily penetrate the
blood barrier or otherwise enter normally sterile areas of the
body.
(7) (5)
"Pesticide registration renewal" means the
registration of any pesticide that was previously registered by the
department.
(8) (6)
"Place of business" means a location that
is staffed
by at least 1 person who independently, without supervision, sells
or uses pesticides within this state or where a person exercises
the right to control others in the sale or use of pesticides within
this state.
(9) (7)
"Plant regulator" means a substance or
mixture of
substances intended through physiological action for accelerating
or retarding the rate of growth or rate of maturation or for
otherwise altering the behavior of plants or the produce of plants.
Plant regulator does not include substances to the extent that they
are intended as plant nutrients, trace elements, nutritional
chemicals, plant inoculants, and soil amendments.
(10) (8)
"Private agricultural applicator" means a
certified
applicator who uses or supervises the use of a restricted use
pesticide for a private agricultural purpose.
(11) (9)
"Private agricultural purpose" means the
application of a pesticide for the production of an agricultural
commodity on either of the following:
(a) Property owned or rented by the person applying the
pesticide or by his or her employer.
(b) Property of another person if applied without
compensation, other than trading of personal services between
producers of agricultural commodities.
(12) (10)
"Protect health and environment" means protection
to protect against any unreasonable adverse effects on the
environment.
(13) (11)
"Public building" means a building that is
owned
or operated by a federal, state, or local government, including
public universities.
Sec. 8315a. (1) A retail establishment that sells general use
pesticides for lawn application shall display a sign meeting
standards established by the director under section 8315b(1). The
sign shall be displayed in a conspicuous place as close as possible
to the place where the pesticides are displayed.
(2) At least 48 hours before any commercial lawn application
of a pesticide, the person making the application shall supply
written notice to occupants of all 1- or 2-family dwellings, and to
owners, owners' agents, or other persons in a position of authority
for all other types of premises, that are on abutting property with
a boundary that is within 150 feet of the site of the commercial
lawn application. The director shall specify the manner in which a
person making a commercial lawn application shall supply the
written notice including, but not limited to, mailing the notice,
or leaving the notice with a responsible adult or in a conspicuous
location on the abutting property. The director shall specify a
manner in which a person making a commercial lawn application may
provide an option to occupants of 1- or 2-family dwellings to
decline further notices.
(3) The owner of a multiple family dwelling or the owner's
agent shall supply the written notice under subsection (2) to the
occupants of the multiple family dwelling in a manner specified by
the director. For all other types of premises, the owner, owner's
agent, or other person in a position of authority shall post the
written notice under subsection (2) in a manner specified by the
director.
(4) The director shall specify the content and form of the
written notice under subsection (2). The notice shall include at
least all of the following:
(a) The address where the pesticide application is to be made.
(b) The name and telephone number of the person making the
pesticide application.
(c) The specific date of each pesticide application and 2
alternative dates to the proposed date of application if weather
conditions prevent the pesticide application on the proposed date.
(d) The product name or names and the EPA registration number
or numbers of the pesticide or pesticides to be applied.
(e) A prominent statement that reads substantially as follows:
"This notice is to inform you of a pending pesticide application to
neighboring property. You may wish to take precautions to minimize
pesticide exposure to yourself, family members, pets, or family
possessions. Further information about the product or products
being applied, including any warnings that appear on the labels of
such pesticide or pesticides that are pertinent to the protection
of humans, animals, or the environment, can be obtained by calling
the National Pesticide Information Center at 1-800-858-7378.".
(5) Subsections (2) and (3) do not apply to any of the
following:
(a) The application of either of the following:
(i) Antimicrobial pesticides as defined in section 2(mm) of the
federal insecticide, fungicide, and rodenticide act, 7 USC 136.
(ii) Antimicrobial products described in section 19(h)(2) of
the federal insecticide, fungicide, and rodenticide act, 7 USC
136q, and exempt from section 19(a), (e), and (f) of the federal
insecticide, fungicide, and rodenticide act, 7 USC 136q.
(b) The use of an aerosol product with a directed spray, in
containers of 18 fluid ounces or less, to protect individuals from
an imminent threat from stinging and biting insects, including
venomous spiders, bees, wasps, and hornets. This subdivision does
not exempt from notification the use of any fogger product or
aerosol product that discharges to a wide area.
(c) The use of nonvolatile insecticides or rodenticides in a
tamper-resistant bait station or in areas inaccessible to children.
(d) The application of a pesticide classified by the EPA as an
exempt material under 40 CFR 152.25.
(e) The application of boric acid and disodium octaborate
tetrahydrate.
(f) The application of horticultural soap and oils that do not
contain synthetic pesticides or synergists.
(g) The application of a pesticide by direct injection into a
plant or the ground.
(h) The application of a pesticide to the ground or turf of a
cemetery.
(i) An emergency pesticide application when necessary to
protect against an imminent threat to human health. However, before
making an emergency pesticide application, a person shall make a
good faith effort to supply the written notice under subsection
(2). Upon making an emergency pesticide application, a person shall
notify the director, using a form developed by the director for
such purposes. The notice to the director shall include at least
all of the following:
(i) The address where the application was made.
(ii) The name and telephone number of the person making the
pesticide application.
(iii) The date of the pesticide application.
(iv) The product name and EPA registration number of the
pesticide or pesticides applied.
(v) The reason for the pesticide application.
(6) The director shall review an emergency notice submitted
under subsection (5)(i) to ensure that the circumstance did warrant
the emergency pesticide application. The emergency notice shall be
kept on file at the department for 3 years from the date of the
pesticide application and shall be made available to any person
upon request.
(7) A person performing a noncommercial lawn application
treating an area more than 100 square feet or performing a
commercial lawn application shall place markers within or along the
perimeter of the area where pesticides will be applied. Markers
shall be placed so as to be clearly visible to persons immediately
outside the perimeter. The markers shall be posted at least 12
inches above the ground and shall be at least 4 inches by 5 inches
in size. The markers shall be placed before the lawn application on
the day of the lawn application and shall instruct persons not to
enter the area where pesticides were applied and not to remove the
markers, for a period of at least 24 hours. The instruction shall
be printed boldly in letters at least 3/8 of an inch in height.
Sec. 8315b. (1) The director shall establish uniform standards
for a consumer pesticide use information sign provided for under
section 8315a(1). This sign shall contain all of the following
information:
(a) A warning notice directing consumers to follow directions
on labels.
(b) A provision to inform consumers of the posting
requirements set forth in section 8315a(7).
(c) A recommendation that the consumer notify neighbors before
the application of pesticides so that the neighbors may take
precautions to avoid pesticide exposure.
(2) The director shall prepare and publish, in consultation
with the director of the department of community health,
educational materials explaining all of the following:
(a) The requirements of section 8315a.
(b) The requirements of section 8316a with respect to day care
centers.
(c) The human and environmental health effects of lawn care
pesticides.
(3) The director may specify procedures, not inconsistent with
any other provisions of law, for the department's investigation and
processing of alleged violations of section 8315a(7). The uniform
procedures may require complaints to be in the form of a sworn
statement containing the facts upon which an alleged violation is
based and may provide that the department is not required to
perform any testing or sampling in relation to the investigation of
any such alleged violations.
Sec. 8316a. Beginning 1 year after the effective date of this
section, a person shall not apply a pesticide in a health facility
building or public building unless the health facility or the owner
or operator of the public building has an integrated pest
management program in place for the building.
Sec. 8321a. The department shall maintain a database of human
pesticide poisonings that occur in this state after the effective
date of the amendatory act that added this section. The data shall
include, but need not be limited to, all of the following:
(a) How the poisoning occurred.
(b) The pesticide that caused the poisoning.
(c) The number and age of the people affected.
(d) The adverse health effects suffered by the people
affected.
(e) Any enforcement action taken.
Sec. 8333. (1) Notwithstanding any other provision of this
section, a person who violates section 8315a(1) for the first time
shall be issued a warning and shall be provided 7 days to correct
the violation. A person who violates section 8315a(1) a second or
subsequent time is responsible for a state civil infraction and may
be fined not more than $250.00 for each such violation.
(2) Notwithstanding any other provision of this section, a
person who violates section 8315a(3) for the first time or section
8315a(7) for the first time shall be issued a written warning and
educational materials prepared under section 8315b(2). A person who
violates section 8315a(3) a second time or who violates section
8315a(7) a second time is responsible for a state civil infraction
and may be fined not more than $100.00. A person who violates
section 8315a(3) a third or subsequent time or who violates section
8315a(7) a third or subsequent time is responsible for a state
civil infraction and may be fined not more than $250.00.
(3) Notwithstanding any other provision of this section, a
person who violates section 8316a(4) shall, for the first
violation, be issued a written warning and educational materials
prepared under section 8315b(2). The director, upon finding after
notice and an opportunity for a hearing that a person has committed
a second or subsequent violation of section 8316a(4), may impose an
administrative fine of not more than $100.00 for a second violation
or not more than $250.00 for a subsequent violation.
(4) (1)
A person who violates this part is
subject to the
penalties and remedies provided in this part regardless of whether
he or she acted alone or through an employee or agent.
(5) (2)
The director, upon finding after
notice and an
opportunity for a hearing that a person has violated or attempted
to violate any provision of this part except section 8311(4), 8312,
8315a(1), 8315a(3), 8315a(7), or 8316, may impose an administrative
fine of not more than $1,000.00 for each violation of this part.
(6) (3)
If the director finds that a
violation or attempted
violation occurred despite the exercise of due care or did not
result in significant harm to human health or the environment, the
director may issue a warning instead of imposing an administrative
fine.
(7) (4)
The director shall advise the
attorney general of
the failure of a person to pay an administrative fine imposed under
this section. The attorney general may bring an action in a court
of competent jurisdiction for the failure to pay an administrative
fine imposed under this section.
(8) (5)
A person who violates this part or
attempts to
violate this part is guilty of a misdemeanor punishable by
imprisonment for not more than 90 days or a fine of not more than
$5,000.00, or both, for each offense.
(9) (6)
The director may bring an action
to enjoin a
violation of this part or an attempted violation of this part in a
court of competent jurisdiction of the county in which the
violation occurs or is about to occur.
(10) (7)
The attorney general may file a
civil action in
which the court may impose on any person who violates this part or
attempts to violate this part a civil fine of not more than
$5,000.00 for each violation or attempted violation. In addition,
the attorney general may bring an action in circuit court to
recover the reasonable costs of the investigation from any person
who violated this part or attempted to violate this part. Money
recovered under this subsection shall be forwarded to the state
treasurer for deposit into the pesticide control fund created in
section 8318.
(11) (8)
In defense of an action filed under this section, in
In addition to any other lawful defense, a person
may present
evidence
as it is an affirmative defense to an action filed under
this
section that, at the time of the a person's alleged
violation of this part or attempted violation of this part, he or
she was in compliance with label directions and with this part and
rules promulgated under this part at the time of the alleged
violation.
(12) (9)
A civil cause of action does not
arise for injuries
to any person or property if a private agricultural applicator, or
a registered applicator who stores, handles, or applies pesticides
only for a private agricultural purpose, was not grossly negligent
and stored, handled, or applied pesticides in compliance with this
part, rules promulgated under this part, and the pesticide
labeling.
(13) (10)
Applicable provisions of the
revised judicature
act
of 1961, 1961 PA 236, MCL 600.101 to 600.9948 600.9947,
apply
to civil actions filed pursuant to this part.