BP BHEAD INT S [atlas:bill]

AN ACT Relating to fertilizer regulation; amending RCW 15.54.270, 15.54.275, 15.54.325, 15.54.330, 15.54.340, 15.54.350, 15.54.362, 15.54.370, 15.54.380, 15.54.414, 15.54.420, 15.54.436, 15.54.470, 15.54.474, 15.54.480, 15.54.800, 70.95.030, 70.95.170, 70.95.210, and 70.95.240; adding new sections to chapter 70.95 RCW; adding a new section to chapter 70.105 RCW; adding a new section to chapter 15.54 RCW; creating new sections; repealing RCW 15.54.335 and 70.95.830; prescribing penalties; and making an appropriation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature intends to strengthen the state's fertilizer adulteration laws to protect human health and the environment by:

(1) Ensuring that all fertilizers meet standards for allowable metals;

(2) Allowing fertilizer purchasers and users to know about the contents of fertilizer products;

(3) Clarifying the department of ecology's oversight authority over waste-derived fertilizers; and

(4) Authorizing additional studies on plant uptake of metals.

Sec. 2. RCW 15.54.270 and 1997 c 427 s 1 are each amended to read as follows:

Terms used in this chapter have the meaning given to them in this chapter unless the context clearly indicates otherwise.

(1) "Brand" means a term, design, or trademark used in connection with the distribution and sale of one or more grades of commercial fertilizers.

(2) "Bulk fertilizer" means commercial fertilizer distributed in a nonpackage form such as, but not limited to, tote bags, tote tanks, bins, tanks, trailers, spreader trucks, and railcars.

(3) "Calcium carbonate equivalent" means the acid-neutralizing capacity of an agricultural liming material expressed as a weight percentage of calcium carbonate.

(4) "Commercial fertilizer" means a substance containing one or more recognized plant nutrients and that is used for its plant nutrient content or that is designated for use or claimed to have value in promoting plant growth, and shall include limes, gypsum, and manipulated animal and vegetable manures((~~, and a material approved under RCW 70.95.830~~)). It does not include unmanipulated animal and vegetable manures and other products exempted by the department by rule.

(5) "Customer-formula fertilizer" means a mixture of commercial fertilizer or materials of which each batch is mixed according to the specifications of the final purchaser.

(6) "Department" means the department of agriculture of the state of Washington or its duly authorized representative.

(7) "Director" means the director of the department of agriculture.

(8) "Distribute" means to import, consign, manufacture, produce, compound, mix, or blend commercial fertilizer, or to offer for sale, sell, barter, exchange, or otherwise supply commercial fertilizer in this state.

(9) "Distributor" means a person who distributes.

(10) "Fertilizer material" means a commercial fertilizer that either:

(a) Contains important quantities of no more than one of the primary plant nutrients: Nitrogen (N), phosphate (P205), and potash (K20);

(b) Has eighty-five percent or more of its plant nutrient content present in the form of a single chemical compound; or

(c) Is derived from a plant or animal residue or byproduct or natural material deposit that has been processed in such a way that its content of plant nutrients has not been materially changed except by purification and concentration.

(11) "Grade" means the percentage of total nitrogen, available phosphoric acid, and soluble potash stated in whole numbers in the same terms, order, and percentages as in the "guaranteed analysis," unless otherwise allowed by a rule adopted by the department. Specialty fertilizers may be guaranteed in fractional units of less than one percent of total nitrogen, available phosphorus or phosphoric acid, and soluble potassium or potash. Fertilizer materials, bone meal, manures, and similar materials may be guaranteed in fractional units.

((~~(11)~~)) (12) "Guaranteed analysis."

(a) Until the director prescribes an alternative form of "guaranteed analysis" by rule the term "guaranteed analysis" shall mean the minimum percentage of plant nutrients claimed in the following order and form:

Total nitrogen (N) ............. percent

Available phosphoric acid (P205) percent

Soluble potash (K20) ......... percent

The percentage shall be stated in whole numbers unless otherwise allowed by the department by rule.

The "guaranteed analysis" may also include elemental guarantees for phosphorus (P) and potassium (K).

(b) For unacidulated mineral phosphatic material and basic slag, bone, tankage, and other organic phosphatic materials, the total phosphoric acid or degree of fineness may also be guaranteed.

(c) Guarantees for plant nutrients other than nitrogen, phosphorus, and potassium shall be as allowed or required by rule of the department. The guarantees for such other nutrients shall be expressed in the form of the element.

(d) The guaranteed analysis for limes shall include the percentage of calcium or magnesium expressed as their carbonate; the calcium carbonate equivalent as determined by methods prescribed by the association of official analytical chemists; and the minimum percentage of material that will pass respectively a one hundred mesh, sixty mesh, and ten mesh sieve. The mesh size declaration may also include the percentage of material that will pass additional mesh sizes.

(e) In commercial fertilizer, the principal constituent of which is calcium sulfate (gypsum), the percentage of calcium sulfate (CaS04.2H20) shall be given along with the percentage of total sulfur.

(((f) The guaranteed analysis for a material approved under RCW 70.95.830 and to be used as a soil amendment shall include the name and percentage of each soil amending ingredient and the total percentage of all other ingredients.

~~(12)~~)) (13) "Label" means the display of all written, printed, or graphic matter, upon the immediate container, or a statement accompanying a fertilizer.

((~~(13)~~)) (14) "Labeling" includes all written, printed, or graphic matter, upon or accompanying a commercial fertilizer, or advertisement, brochures, posters, television, and radio announcements used in promoting the sale of such fertilizer.

((~~(14) "Licensee" means the person who receives a license to distribute a fertilizer under the provisions of this chapter.~~))

(15) "Lime" means a substance or a mixture of substances, the principal constituent of which is calcium or magnesium carbonate, hydroxide, or oxide, singly or combined.

(16) "Manipulation" means processed or treated in any manner, including drying to a moisture content less than thirty percent.

(17) "Manufacture" means to compound, produce, granulate, mix, blend, repackage, or otherwise alter the composition of fertilizer materials.

(18) "Official sample" means a sample of commercial fertilizer taken by the department and designated as "official" by the department.

(19) "Packaged fertilizer" means commercial fertilizers, either agricultural or specialty, distributed in nonbulk form.

(20) "Person" means an individual, firm, brokerage, partnership, corporation, company, society, or association.

(21) "Percent" or "percentage" means the percentage by weight.

(22) "Registrant" means the person who registers commercial fertilizer under the provisions of this chapter.

(23) "Specialty fertilizer" means a commercial fertilizer distributed primarily for nonfarm use, such as, but not limited to, use on home gardens, lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses, and nurseries.

(24) "Ton" means the net weight of two thousand pounds avoirdupois.

(25) "Total nutrients" means the sum of the percentages of total nitrogen, available phosphoric acid, and soluble potash as guaranteed and as determined by analysis.

(26) "Waste-derived fertilizer" means a commercial fertilizer that is derived from an industrial byproduct, coproduct, or other material that would otherwise be disposed of if a market for reuse was not an option. This includes solid waste as defined in chapter 70.95 RCW and hazardous waste as defined in chapter 70.105 RCW, but does not include biosolids or biosolids products regulated under chapter 70.95J RCW or wastewaters regulated under chapter 90.48 RCW.

Sec. 3. RCW 15.54.275 and 1993 c 183 s 2 are each amended to read as follows:

(1) No person may distribute a ((~~commercial~~)) bulk fertilizer in this state((~~, except packaged fertilizers,~~)) until a license to distribute has been obtained by that person. An annual license is required for each out-of-state or in-state location that distributes ((~~nonpackaged commercial~~)) bulk fertilizer in Washington state. An application for each location shall be filed on forms provided by the master license system and shall be accompanied by an annual fee of twenty-five dollars per location. The license shall expire on the master license expiration date.

(2) An application for license shall include the following:

(a) The name and address of licensee.

(b) Any other information required by the department by rule.

(3) ((~~The name and address shown on the license shall be shown on all labels, pertinent invoices, and storage facilities for fertilizer distributed by the licensee in this state.~~

~~(4)~~)) If an application for license renewal provided for in this section is not filed prior to ((~~[the]~~)) the master license expiration date, a delinquency fee of twenty-five dollars shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license shall be issued. The assessment of this delinquency fee shall not prevent the department from taking any other action as provided for in this chapter. The penalty shall not apply if the applicant furnishes an affidavit that he or she has not distributed this commercial fertilizer subsequent to the expiration of his or her prior license.

Sec. 4. RCW 15.54.325 and 1993 c 183 s 3 are each amended to read as follows:

(1) No person may distribute in this state a ((~~packaged~~)) commercial fertilizer until it is registered with the department by the distributor whose name appears on the label. An application for each ((~~packaged~~)) commercial fertilizer product shall be made on a form furnished by the department and shall be accompanied by an initial fee of twenty-five dollars for ((~~the first~~)) each product ((~~and ten dollars for each additional product~~)). Labels for each product shall accompany the application. All companies planning to mix ((~~packaged~~)) customer-formula fertilizers shall include the statement "customer-formula grade mixes" under the column headed "product name" on the product registration application form. All customer-formula fertilizers sold under one brand name shall be considered one product. Upon the approval of an application by the department, a copy of the registration shall be furnished to the applicant. All registrations expire on June 30th of each year ((~~except that for the period beginning January 1, 1994, the registration shall expire on June 30, 1995~~)).

(2) An application for registration shall include the following:

(a) The product name;

(b) The brand and grade;

(d) Name and address of the registrant;

(e) Labels for each product being registered;

(f) Identification of those products defined as waste-derived fertilizers;

(g) In the case of waste-derived fertilizers and fertilizer materials containing phosphate, the application must include the concentration of each metal listed in rule adopted under RCW 15.54.800(2)(g); and

(h) Any other information required by the department by rule.

(3) Before registration of a commercial fertilizer that is defined as a waste-derived fertilizer, the department shall obtain written approval from the department of ecology as provided in section 20 or 21 of this act. For those commercial fertilizers registered or allowed to be distributed under a bulk distribution license before the effective date of this section, for the period from July 1, 1998, through June 30, 1999, registration may be granted without the approval process in this subsection.

(4) If an application for renewal of the product registration provided for in this section is not filed prior to July 1st of any one year, a penalty of ten dollars per product shall be assessed and added to the original fee and shall be paid by the applicant before the renewal registration shall be issued. The assessment of this late collection fee shall not prevent the department from taking any other action as provided for in this chapter. The penalty shall not apply if the applicant furnishes an affidavit that he or she has not distributed this commercial fertilizer subsequent to the expiration of his or her prior registration.

(5) For the period beginning July 1, 1998, and ending July 1, 1999, a surcharge of twelve dollars shall be collected with each registration fee.

Sec. 5. RCW 15.54.330 and 1993 c 183 s 4 are each amended to read as follows:

(1) The department shall examine the ((~~packaged~~)) commercial fertilizer product registration application form and labels for conformance with the requirements of this chapter. If the application and appropriate labels are in proper form and contain the required information, the particular ((~~packaged~~)) commercial fertilizer products shall be registered by the department and a certificate of registration shall be issued to the applicant.

(2) In reviewing the ((~~packaged~~)) commercial fertilizer product registration application, the department may consider experimental data, manufacturers' evaluations, data from agricultural experiment stations, product review evaluations, or other authoritative sources to substantiate labeling claims. The data shall be from statistically designed and analyzed trials representative of the soil, crops, and climatic conditions found in the northwestern area of the United States.

(3) In determining whether approval of a labeling statement or guarantee of an ingredient is appropriate, the department may require the submission of a written statement describing the methodology of laboratory analysis utilized, the source of the ingredient material, and any reference material relied upon to support the label statement or guarantee of ingredient.

Sec. 6. RCW 15.54.340 and 1993 c 183 s 5 are each amended to read as follows:

(1) Any ((~~packaged~~)) commercial fertilizer distributed in this state in containers shall have placed on or affixed to the package a label setting forth in clearly legible and conspicuous form the following information:

(a) The net weight;

(b) The product name, brand, and grade. The grade is not required if no primary nutrients are claimed;

(d) The name and address of the registrant ((~~or licensee~~)). The name and address of the manufacturer, if different from the registrant ((~~or licensee~~)), may also be stated; ((~~and~~))

(e) A list of contents subject to the standards in RCW 15.54.800(2)(g);

(f) A statement that the product meets the standard adopted under RCW 15.54.800(2)(g);

(g) A statement regarding the maximum allowable level of metals if applied as directed; and

(h) Other information as required by the department by rule.

(2) If a commercial fertilizer is distributed in bulk, a written or printed statement of the information required by subsection (1) ((~~above~~)) of this section shall accompany delivery and be supplied to the purchaser at the time of delivery.

(3) Each delivery of a customer-formula fertilizer shall be subject to containing those ingredients specified by the purchaser, which ingredients shall be shown on the statement or invoice with the amount contained therein, and a record of all invoices of customer-formula grade mixes shall be kept by the registrant or licensee for a period of twelve months and shall be available to the department upon request: PROVIDED, That each such delivery shall be accompanied by either a statement, invoice, a delivery slip, or a label if bagged, containing the following information: The net weight; the brand; the guaranteed analysis which may be stated to the nearest tenth of a percent or to the next lower whole number; the name and address of the registrant or licensee, or manufacturer, or both; and the name and address of the purchaser.

Sec. 7. RCW 15.54.350 and 1993 c 183 s 6 are each amended to read as follows:

(1) There shall be paid to the department for all commercial fertilizers distributed in this state to nonregistrants ((~~or nonlicensees~~)) an inspection fee of ((~~fifteen~~)) twenty-five cents per ton of lime and thirty-six cents per ton of all other commercial fertilizer distributed during the year beginning July 1st and ending June 30th.

(2) Distribution of commercial fertilizers for shipment to points outside this state may be excluded.

(3) When more than one distributor is involved in the distribution of a commercial fertilizer, the last registrant ((~~or licensee~~)) who distributes to a nonregistrant ((~~or nonlicensee~~)) is responsible for paying the inspection fee, unless the payment of fees has been made by a prior distributor of the fertilizer.

Sec. 8. RCW 15.54.362 and 1993 c 183 s 7 are each amended to read as follows:

(1) Every registrant ((~~or licensee~~)) who distributes commercial fertilizer in this state shall file a semiannual report on forms provided by the department setting forth the number of net tons of each commercial fertilizer so distributed in this state. The reports will cover the following periods: January 1st through June 30th and July 1st through December 31st of each year. Upon permission of the department, an annual statement under oath may be filed for the annual reporting period of July 1st through June 30th of any year by any person distributing within the state less than one hundred tons for each six-month period during any calendar year, and upon filing such statement, such person shall pay the inspection fee required under RCW 15.54.350. The department may accept sales records or other records accurately reflecting the tonnage sold and verifying such reports.

(2) Each person responsible for the payment of inspection fees for commercial fertilizer distributed in this state shall include the inspection fees with the report on the same dates and for the same reporting periods mentioned in subsection (1) of this section. If in one year a registrant ((~~or licensee~~)) distributes less than eighty-three tons of commercial fertilizer or less than one hundred sixty-seven tons of commercial lime or equivalent combination of the two, the registrant ((~~or licensee~~)) shall pay the minimum inspection fee. The minimum inspection fee shall be twenty-five dollars per year.

(3) The department may, upon request, require registrants ((~~or licensees~~)) to furnish information setting forth the net tons of commercial fertilizer distributed to each location in this state.

(4) Semiannual or annual reports filed after the close of the corresponding reporting period shall pay a late filing fee of twenty-five dollars. Inspection fees which are due and have not been remitted to the department by the due date shall have a late-collection fee of ten percent, but not less than twenty-five dollars, added to the amount due when payment is finally made. The assessment of this late collection fee shall not prevent the department from taking any other action as provided for in this chapter.

(5) It shall be a misdemeanor for any person to divulge any information provided under this section that would reveal the business operation of the person making the report. However, nothing contained in this subsection may be construed to prevent or make unlawful the use of information concerning the business operations of a person in any action, suit, or proceeding instituted under the authority of this chapter, including any civil action for the collection of unpaid inspection fees, which action is hereby authorized and which shall be as an action at law in the name of the director of the department.

Sec. 9. RCW 15.54.370 and 1993 c 183 s 8 are each amended to read as follows:

(1) It shall be the duty of the department to inspect, sample, make analysis of, and test commercial fertilizers distributed within this state at such time and place and to such an extent as it may deem necessary to determine whether such fertilizers are in compliance with the provisions of this chapter. The department is authorized to stop any commercial vehicle transporting fertilizers on the public highways and direct it to the nearest scales approved by the department to check weights of fertilizers being delivered. The department is also authorized, upon presentation of proper identification, to enter any distributor's premises, including any vehicle of transport, at all reasonable times in order to have access to commercial fertilizers and to records relating to their distribution.

(2) The methods of sampling and analysis shall be those adopted by the department from officially recognized sources.

(3) The department, in determining for administrative purposes whether a fertilizer is deficient in any component or total nutrients, shall be guided solely by the official sample as defined in RCW 15.54.270 and obtained and analyzed as provided for in this section.

(4) When the inspection and analysis of an official sample has been made, the results of analysis shall be forwarded by the department to the registrant ((~~or licensee~~)) and to the purchaser, if known. Upon request and within thirty days, the department shall furnish to the registrant ((~~or licensee~~)) a portion of the sample concerned.

(5) Analysis of an official sample by the department shall be accepted as prima facie evidence by any court of competent jurisdiction.

Sec. 10. RCW 15.54.380 and 1993 c 183 s 9 are each amended to read as follows:

(1) If the analysis shall show that any commercial fertilizer falls short of the guaranteed analysis in any one plant nutrient or in total nutrients, penalty shall be assessed in favor of the department in accordance with the following provisions:

(a) A penalty of three times the commercial value of the deficiency, if such deficiency in any one plant nutrient is more than two percent under guarantee on any one commercial fertilizer in which that plant nutrient is guaranteed up to and including ten percent; a penalty of three times the commercial value of the deficiency, if such deficiency in any one plant nutrient is more than three percent under guarantee on any one commercial fertilizer in which that plant nutrient is guaranteed from ten and one-tenth percent to twenty percent; a penalty of three times the commercial value of the deficiency, if such deficiency in any one plant nutrient is more than four percent under guarantee on any one commercial fertilizer in which that plant nutrient is guaranteed twenty and one-tenth percent and above.

(b) A penalty of three times the commercial value of the total nutrient deficiency shall be assessed when such deficiency is more than two percent under the calculated total nutrient guarantee.

(c) When a commercial fertilizer is subject to penalty under both (a) and (b) ((~~above~~)) of this subsection, only the larger penalty shall be assessed.

(2) All penalties assessed under this section on any one commercial fertilizer, represented by the sample analyzed, shall be paid to the department within three months after the date of notice from the department to the registrant ((~~or licensee~~)). The department shall deposit the amount of the penalty into the fertilizer, agricultural mineral and lime account.

(3) Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction for a judgment as to the justification of such penalties imposed under subsections (1) and (2) ((~~above~~)) of this section.

(4) The civil penalties payable in subsections (1) and (2) ((~~above~~)) of this section shall in no manner be construed as limiting the consumer's right to bring a civil action in damage against the registrant ((~~or licensee~~)) paying said civil penalties.

Sec. 11. RCW 15.54.414 and 1993 c 183 s 10 are each amended to read as follows:

No person may distribute an adulterated commercial fertilizer. A commercial fertilizer is adulterated:

(1) If it contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant life, animals, humans, aquatic life, soil, or water when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use which may be necessary to protect plant life, animals, humans, aquatic life, soil, or water are not shown upon the label. However, any commercial fertilizer containing metals subject to the rule adopted under RCW 15.54.800(2)(g) shall not be considered adulterated for those metals if the commercial fertilizer complies with the standard established for those metals. In making such a determination, the department may confer with appropriate federal and state agencies and institutions;

(2) If its composition falls below or differs from that which it is purported to possess by its labeling; or

(3) If it contains unwanted viable seed.

Sec. 12. RCW 15.54.420 and 1993 c 183 s 11 are each amended to read as follows:

It shall be unlawful for any person to:

(1) Distribute an adulterated or misbranded commercial fertilizer;

(2) Fail, refuse, or neglect to place upon or attach to each package of distributed commercial fertilizer a label containing all of the information required by this chapter;

(3) Fail, refuse, or neglect to deliver to a purchaser of bulk commercial fertilizer a statement containing the information required by this chapter;

(4) Distribute a ((~~packaged~~)) commercial fertilizer product which has not been registered with the department;

(5) ((~~Distribute bulk fertilizer without holding a license to do so;~~

~~(6) Distribute unregistered packaged fertilizer. It is the responsibility of the person who manufactures or subsequently packages that fertilizer to register it prior to distribution in this state;~~

~~(7)~~)) Refuse or neglect to keep and maintain records, or to make reports when and as required; or

((~~(8)~~)) (6) Make false or fraudulent records, invoices, or reports.

Sec. 13. RCW 15.54.436 and 1993 c 183 s 12 are each amended to read as follows:

The department may cancel the ((~~license to distribute commercial fertilizer or~~)) registration of any ((~~packaged~~)) commercial fertilizer product or refuse to ((~~license a distributor or~~)) register any ((~~packaged~~)) commercial fertilizer product as provided in this chapter due to:

(1) An incomplete or insufficient ((~~license or~~)) registration application;

(2) The misbranding or adulteration of a commercial fertilizer; ((or))

(3) Evidence that the use of a waste-derived fertilizer poses unacceptable hazards to human health or the environment; or

(4) A violation of this chapter or rules adopted under this chapter.

If the department cancels or refuses to renew an existing ((~~license or~~)) registration due to the misbranding or adulteration of a commercial fertilizer or due to a violation of this chapter or a rule adopted hereunder, the ((~~licensee/registrant~~)) registrant or applicant may request a hearing as provided for in chapter 34.05 RCW.

Sec. 14. RCW 15.54.470 and 1993 c 183 s 13 are each amended to read as follows:

(1) Any person who violates any provision of this chapter shall be guilty of a misdemeanor, and the fines collected shall be disposed of as provided under RCW 15.54.480.

(2) Nothing in this chapter shall be considered as requiring the department to report for prosecution or to cancel the registration of a ((~~packaged~~)) commercial fertilizer product or to stop the sale of fertilizers for violations of this chapter, when violations are of a minor character, and/or when the department believes that the public interest will be served and protected by a suitable notice of the violation in writing.

(3) It shall be the duty of each prosecuting attorney to whom any violation of this chapter is reported, to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay. Before the department reports a violation of this chapter for such prosecution, an opportunity shall be given the distributor to present his or her view in writing or orally to the department.

(4) The department is hereby authorized to apply for, and the court authorized to grant, a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule adopted under this chapter, notwithstanding the existence of any other remedy at law. Any such injunction shall be issued without bond.

Sec. 15. RCW 15.54.474 and 1987 c 45 s 10 are each amended to read as follows:

Every person who fails to comply with this chapter, or any rule adopted under it, may be subjected to a civil penalty, as determined by the director, in an amount of not more than ((~~one~~)) twenty-seven thousand five hundred dollars for every such violation. Each and every such violation shall be a separate and distinct offense. Every person, who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have violated this chapter and may be subject to the penalty provided for in this section.

Sec. 16. RCW 15.54.480 and 1988 c 254 s 3 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, all moneys collected under the provisions of this chapter shall be paid to the director and deposited in an account within the agricultural local fund. Such deposits shall be used only in the administration and enforcement of this chapter. Any residual balance remaining in the fertilizer, agricultural mineral and lime fund on June 9, 1988, shall be transferred to that account within the agricultural local fund.

(2) Moneys collected under RCW 15.54.474 shall be deposited in the general fund.

NEW SECTION. Sec. 17. The department of agriculture shall conduct a comprehensive study of plant uptake of metals. The department shall work cooperatively with the department of ecology and the department of health to interpret the study results regarding potential impacts to public and ecological health. A report of the results of the study shall be submitted to appropriate committees of the legislature by December 31, 2000.

Sec. 18. RCW 15.54.800 and 1997 c 427 s 3 are each amended to read as follows:

(1) The director shall administer and enforce the provisions of this chapter and any rules adopted under this chapter. All authority and requirements provided for in chapter 34.05 RCW apply to this chapter in the adoption of rules.

(2) The director may adopt appropriate rules for carrying out the purpose and provisions of this chapter, including but not limited to rules providing for:

(a) Definitions of terms;

(b) Determining standards for labeling and registration of commercial fertilizers;

(d) Recordkeeping by registrants and licensees;

(e) Regulation of the use and disposal of commercial fertilizers for the protection of ground water and surface water; ((~~and~~))

(f) The safe handling, transportation, storage, display, and distribution of commercial fertilizers; and

(g) Establishing standards for allowable levels of nonnutritive metals in commercial fertilizers. Until such time that federal risk-based standards are adopted or studies have shown that these standards are not adequate to protect human health and the environment, the department shall use Canadian figures for maximum acceptable metal concentrations in products and maximum acceptable cumulative metal additions to soil as specified in the Canadian fertilizers act, R.S., c. F-9, as amended before the effective date of this section, and rules adopted under that act. Washington application rates shall be used to determine if maximum acceptable cumulative metal additions to soil are being exceeded.

Sec. 19. RCW 70.95.030 and 1997 c 213 s 1 are each amended to read as follows:

As used in this chapter, unless the context indicates otherwise:

(1) "City" means every incorporated city and town.

(2) "Commission" means the utilities and transportation commission.

(3) "Committee" means the state solid waste advisory committee.

(4) "Department" means the department of ecology.

(5) "Director" means the director of the department of ecology.

(6) "Disposal site" means the location where any final treatment, utilization, processing, or deposit of solid waste occurs.

(7) "Energy recovery" means a process operating under federal and state environmental laws and regulations for converting solid waste into usable energy and for reducing the volume of solid waste.

(8) "Functional standards" means criteria for solid waste handling expressed in terms of expected performance or solid waste handling functions.

(9) "Incineration" means a process of reducing the volume of solid waste operating under federal and state environmental laws and regulations by use of an enclosed device using controlled flame combustion.

(10) "Jurisdictional health department" means city, county, city-county, or district public health department.

(11) "Landfill" means a disposal facility or part of a facility at which solid waste is placed in or on land and which is not a land treatment facility.

(12) "Local government" means a city, town, or county.

(13) "Modify" means to substantially change the design or operational plans including, but not limited to, removal of a design element previously set forth in a permit application or the addition of a disposal or processing activity that is not approved in the permit.

(14) "Multiple family residence" means any structure housing two or more dwelling units.

(15) "Person" means individual, firm, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever.

(16) "Recyclable materials" means those solid wastes that are separated for recycling or reuse, such as papers, metals, and glass, that are identified as recyclable material pursuant to a local comprehensive solid waste plan. Prior to the adoption of the local comprehensive solid waste plan, adopted pursuant to RCW 70.95.110(2), local governments may identify recyclable materials by ordinance from July 23, 1989.

(17) "Recycling" means transforming or remanufacturing waste materials into usable or marketable materials for use other than landfill disposal or incineration.

(18) "Residence" means the regular dwelling place of an individual or individuals.

(19) "Sewage sludge" means a semisolid substance consisting of settled sewage solids combined with varying amounts of water and dissolved materials, generated from a wastewater treatment system, that does not meet the requirements of chapter 70.95J RCW.

(20) "Soil amendment" means any substance that is intended to improve the physical characteristics of the soil, except commercial fertilizers, agricultural liming agents, unmanipulated animal manures, unmanipulated vegetable manures, and other materials exempted by rule of the department, such as biosolids as defined in this chapter and wastewater as regulated in chapter 90.48 RCW.

(21) "Solid waste" or "wastes" means all putrescible and nonputrescible solid and semisolid wastes including, but not limited to, garbage, rubbish, ashes, industrial wastes, swill, sewage sludge, demolition and construction wastes, abandoned vehicles or parts thereof, and recyclable materials.

((~~(21)~~)) (22) "Solid waste handling" means the management, storage, collection, transportation, treatment, utilization, processing, and final disposal of solid wastes, including the recovery and recycling of materials from solid wastes, the recovery of energy resources from solid wastes or the conversion of the energy in solid wastes to more useful forms or combinations thereof.

((~~(22)~~)) (23) "Source separation" means the separation of different kinds of solid waste at the place where the waste originates.

((~~(23)~~)) (24) "Vehicle" includes every device physically capable of being moved upon a public or private highway, road, street, or watercourse and in, upon, or by which any person or property is or may be transported or drawn upon a public or private highway, road, street, or watercourse, except devices moved by human or animal power or used exclusively upon stationary rails or tracks.

((~~(24)~~)) (25) "Waste-derived soil amendment" means any soil amendment as defined in this chapter that is derived from solid waste as defined in RCW 70.95.030, but does not include biosolids or biosolids products regulated under chapter 70.95J RCW or wastewaters regulated under chapter 90.48 RCW.

(26) "Waste reduction" means reducing the amount or toxicity of waste generated or reusing materials.

NEW SECTION. Sec. 20. A new section is added to chapter 70.95 RCW to read as follows:

(1) After receipt from the department of agriculture of a copy of the completed application required by RCW 15.54.325, the department shall evaluate whether the use of the proposed waste-derived fertilizer as defined in RCW 15.54.270 is consistent with the following and other applicable laws:

(a) This chapter;

(b) Chapter 70.105 RCW, the hazardous waste management act; and

(2) The department must accept the standards adopted in RCW 15.54.800. If more stringent standards exist under chapter 173-303 WAC for the same constituents, the department must use the more stringent standards.

(3) The department shall review and approve or disapprove the use of the proposed waste-derived fertilizer within a reasonable time of receiving the completed application. In making a determination, the department shall consult with the department of health and the department of labor and industries.

(4) A party aggrieved by a decision of the department to issue a written approval under this section or to deny the issuance of such an approval may appeal the decision to the pollution control hearings board within thirty days of the decision. Review of such a decision shall be conducted in accordance with chapter 43.21B RCW. Any subsequent appeal of a decision of the hearings board shall be obtained in accordance with RCW 43.21B.180.

NEW SECTION. Sec. 21. A new section is added to chapter 70.105 RCW to read as follows:

(a) Chapter 70.95 RCW;

(b) This chapter; and

Sec. 22. RCW 70.95.170 and 1997 c 213 s 2 are each amended to read as follows:

Except as provided in section 23 of this act, after approval of the comprehensive solid waste plan by the department no solid waste handling facility or facilities shall be maintained, established, or modified until the county, city, or other person operating such site has obtained a permit from the jurisdictional health department pursuant to the provisions of RCW 70.95.180 or 70.95.190.

NEW SECTION. Sec. 23. A new section is added to chapter 70.95 RCW to read as follows:

(1) Waste-derived soil amendments that meet the standards and criteria in this section may apply for exemption from solid waste permitting as required under RCW 70.95.170. The application shall be submitted to the jurisdictional health department in a format determined by the department or an equivalent format. The application shall include:

(a) Analytical data showing that all constituents of waste-derived soil amendments meet standards established under RCW 15.54.800;

(b) Other information deemed appropriate by the jurisdictional health department or the department to protect human health and the environment.

(2) Upon receipt of a complete application for exemption from solid waste permitting, the jurisdictional health department shall submit all applicable information to the department for review and concurrence before granting the exemption. The department shall review the application and provide its findings to the jurisdictional health department within forty-five days of receipt of the information. Every completed application shall be approved or disapproved by the jurisdictional health department within ninety days after receipt.

(3) The jurisdictional board of health may establish reasonable fees for the review of exemption applications. All permit fees collected by the health department shall be deposited in the treasury and to the account from which the health department's operating expenses are paid.

(4) The jurisdictional health department may contract with the department to fulfill the responsibilities of this section in accordance with RCW 70.95.163.

NEW SECTION. Sec. 24. A new section is added to chapter 70.95 RCW to read as follows:

The jurisdictional health department, with concurrence from the department, may at any time revoke an exemption granted under section 23 of this act if the quality of the waste-derived soil amendment changes or the management, storage, or end use of the waste-derived soil amendment constitutes a threat to human health or the environment.

Sec. 25. RCW 70.95.210 and 1987 c 109 s 21 are each amended to read as follows:

(1) Whenever the jurisdictional health department denies a permit or suspends a permit for a solid waste disposal site or whenever the jurisdictional health department denies or revokes an exemption granted under section 23 of this act, it shall, upon request of the applicant or holder of the permit or exempted party, grant a hearing on such denial ((or)), suspension, or revocation within thirty days after the request therefor is made. Notice of the hearing shall be given to all interested parties including the county or city having jurisdiction over the site and the department. Within thirty days after the hearing, the health officer shall notify the applicant or the holder of the permit or exempted party in writing of his or her determination and the reasons therefor. Any party aggrieved by such determination may appeal to the pollution control hearings board by filing with the hearings board a notice of appeal within thirty days after receipt of notice of the determination of the health officer. The hearings board shall hold a hearing in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW((~~, as now or hereafter amended~~)).

(2) Whenever the department has contracted with the jurisdictional health department in accordance with section 23(4) of this act and denies or revokes an exemption granted under section 23 of this act, any aggrieved party may appeal to the pollution control hearings board by filing with the hearings board a notice of appeal within thirty days after receipt of the notice of the determination of the department. The hearings board shall hold a hearing in accordance with the Administrative Procedure Act, chapter 34.05 RCW.

Sec. 26. RCW 70.95.240 and 1997 c 427 s 4 are each amended to read as follows:

(1) After the adoption of regulations or ordinances by any county, city, or jurisdictional board of health providing for the issuance of permits as provided in RCW 70.95.160, it shall be unlawful for any person to dump or deposit or permit the dumping or depositing of any solid waste onto or under the surface of the ground or into the waters of this state except at a solid waste disposal site for which there is a valid permit. This section ((~~shall~~)) does not((:

~~(a)~~)) prohibit a person from dumping or depositing solid waste resulting from his or her own activities onto or under the surface of ground owned or leased by him or her when such action does not violate statutes or ordinances, or create a nuisance((~~; or~~

(b) Apply to a person using a material or materials on the land as commercial fertilizer if (i) the department of ecology has issued written approval for the use of the material or materials as commercial fertilizer as provided in RCW 70.95.830, (ii) the registration of the material or materials as a packaged commercial fertilizer has not been canceled under RCW 15.54.335, and (iii) the distribution of the material or materials as a commercial fertilizer has not been prohibited by the department of agriculture under RCW 15.54.335)).

(2)(a) It is a class 3 civil infraction as defined in RCW 7.80.120 for a person to litter in an amount less than or equal to one cubic foot.

(b) It is a class 1 civil infraction as defined in RCW 7.80.120 for a person to litter in an amount greater than one cubic foot. Unless suspended or modified by a court, the person shall also pay a litter cleanup fee of twenty-five dollars per cubic foot of litter. The court may, in addition to or in lieu of part or all of the cleanup fee, order the person to pick up and remove litter from the property, with prior permission of the legal owner or, in the case of public property, of the agency managing the property.

NEW SECTION. Sec. 27. A new section is added to chapter 15.54 RCW to read as follows:

(1) The department shall expand its fertilizer data base to include additional information on waste-derived products. Information shall be obtained from applications submitted under RCW 15.54.275.

(2) Except for confidential information under RCW 15.54.362 regarding fertilizer tonnages distributed in the state, information in the fertilizer data base shall be made available to the public upon request.

NEW SECTION. Sec. 28. The following acts or parts of acts are each repealed:

(1) RCW 15.54.335 and 1997 c 427 s 2; and

(2) RCW 70.95.830 and 1997 c 427 s 5.

NEW SECTION. Sec. 29. This act may be known and cited as the fertilizer regulation act.

NEW SECTION. Sec. 30. The sum of four hundred seven thousand seven hundred forty-seven dollars, or as much thereof as may be necessary, is appropriated for the fiscal year ending June 30, 1999, from the general fund to the department of agriculture for the purposes of this act.