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  • Acts
  • 2012
  • Chapter 262 AN ACT RELATIVE TO THE REGULATION OF PLANT NUTRIENTS.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. Section 2 of chapter 128 of the General Laws, as most recently amended by section 36 of chapter 194 of the acts of 2011, is hereby amended by adding the following subsection:-
(k) Maintain authority to regulate and enforce the registration and application of plant nutrients put on or in soil to improve the quality or quantity of plant growth, including, but not limited to, fertilizer, manure and micronutrients in the commonwealth.
The department shall promulgate regulations that specify when plant nutrients may be applied and locations in which plant nutrients shall not be applied. Subject to appropriation, the department may also develop regulations regarding the use of plant nutrients designed to mitigate significant risks to human health and the environment. The department may limit the scope of those regulations regionally as appropriate. The department shall work in conjunction with the University of Massachusetts Amherst Extension to ensure any regulations of the department relative to plant nutrients are consistent with the program’s published information, educational materials and other public outreach programs relative to nutrient management and fertilizer guidelines.
The department may establish fines for violations of regulations promulgated under this subsection which shall not exceed $250 for a first offense, $500 for a second offense and $1000 for a third or subsequent offense.
A person aggrieved by the assessment of a fine under this subsection may appeal that fine by filing a notice of appeal with the division of administrative law appeals within 10 days of the receipt of the notice of the fine. An appellant shall be granted a hearing before the division of administrative law appeals under chapter 30A. The hearing officer may affirm or, if the aggrieved person demonstrates by a preponderance of evidence that the fine was erroneously issued, vacate or modify the fine. A person aggrieved by a decision of the hearing officer may file an appeal in the superior court under said chapter 30A.

SECTION 2. Section 64 of said chapter 128, as appearing in the 2010 Official Edition, is hereby amended by inserting after the definition of “Distributor” the following definition:-
“Fertilizer”, commercially produced fertilizers used as soil and plant amendments; provided, that “fertilizer” shall not include organic compost or natural organic fertilizer.

SECTION 3. Said section 64 of said chapter 128, as so appearing, is hereby further amended by inserting after the definition of “Labeling” the following definition:-
“Lawn” or “non-agricultural turf”, any non-crop land area that is covered by any grass species, excluding flower or vegetable gardens, pasture, hay land, trees, shrubs, turf grown on turf farms or any form of agricultural production or use.

SECTION 4. Said section 64 of said chapter 128, as so appearing, is hereby further amended by inserting after the definition of “Mixed fertilizer” the following definition:-
“Natural organic fertilizer”, materials derived from either plant or animal products containing 1 or more elements, other than carbon, hydrogen and oxygen, which are essential for plant growth. These materials may be subject to biological degradation processes under normal conditions of aging, rainfall, sun-curing, air drying, composting, rotting, enzymatic or anaerobic or aerobic bacterial action or any combination of those conditions. These materials shall not be mixed with synthetic materials or changed in any physical or chemical manner from the material’s initial state except by manipulations such as drying, cooking, chopping, grinding, shredding, hydrolysis or pelleting.

SECTION 5. Said section 64 of said chapter 128, as so appearing, is hereby further amended by inserting after the definition of “Official sample” the following definition:-
“Organic compost”, the biologically stable humus-like material derived from composting or the aerobic, thermophilic decomposition of organic matter.

SECTION 6. Said section 64 of said chapter 128, as so appearing, is hereby further amended by inserting after the definition of “Phosphoric acid” the following definition:-
“Phosphorus containing fertilizer”, fertilizer labeled for use on lawn or non-agricultural turf in which the available phosphate content is greater than 0.67 per cent by weight, excluding organic compost and natural organic fertilizer.

SECTION 7. Said chapter 128 is hereby further amended by inserting after section 65 the following section:-
Section 65A. (a) No person shall purchase and apply or authorize any person, by way of service contract or other arrangement, to apply in the commonwealth any phosphorus containing fertilizer on lawn or non-agricultural turf, except when:
(1) a soil test indicates that additional phosphorus is needed for growth of that lawn or non-agricultural turf; or
(2) the phosphorus fertilizer is confirmed to be used for establishing a new lawn or new non-agricultural turf area.
(b) The department shall promulgate regulations to implement subsection (a) and may, consistent with subsection (a) and in consultation with the department of environmental protection, develop additional regulations designed to limit non-point source pollution from plant nutrients including, but not limited to, phosphorous and nitrogen. Such regulations may require retailers of phosphorus containing fertilizer to display such fertilizers separately and post signs specifying when and where phosphorus containing fertilizer may be applied.
(c) Regulations promulgated under this section shall be designed to maximize credits provided to municipalities by the United States Environmental Protection Agency relative to stormwater discharge and similar permits, which the Environmental Protection Agency may require of municipalities.
(d) Violations of any regulations promulgated under this section shall be subject to the penalties set forth in subsection (k) of section 2.

SECTION 8. Notwithstanding subsection (k) of section 2 of chapter 128 of the General Laws, any rule, regulation, ordinance or by-law relative to nutrient management and fertilizer guidelines: (i) of a city or town in existence prior to July 31, 2012, shall remain enforceable by that city or town; or (ii) specific to sewerage sludge of a city or town in existence prior to January 1, 2013, shall remain enforceable by that city or town.

SECTION 9. Notwithstanding subsection (k) of section 2 of chapter 128 of the General Laws, any rule, regulation, ordinance or by-law relative to nutrient management and fertilizer guidelines: (i) adopted under chapter 561 of the acts of 1973, chapter 831 of the acts of 1977 and chapter 716 of the acts of 1989, shall remain enforceable, so long as such rule, regulation, ordinance or bylaw is not less restrictive than regulations adopted by department of agricultural resources under section 1 and shall be done in conjunction with the University of Massachusetts Amherst Extension to ensure any regulations relative to plant nutrients are consistent with the program’s published information, educational materials and other public outreach programs relative to nutrient management and fertilizer guidelines; or (ii) adopted in accordance with a regional water resources management plan under chapter 312 of the acts of 2008, shall be enforceable, so long as such rule, regulation, ordinance or by-law is not less restrictive than regulations adopted by the department of agricultural resources under section 1 and shall be done in conjunction with the University of Massachusetts Amherst Extension to ensure any regulations relative to plant nutrients are consistent with the program’s published information, educational materials and other public outreach programs relative to nutrient management and fertilizer guidelines.

SECTION 10. Regulations promulgated under section 1 and section 9 shall be completed by January 1, 2014.

SECTION 11. Sections 2 to 7, inclusive, shall take effect on January 1, 2014.

Approved, August 29, 2012.