H*4944(Rat #0432, Act #0340 of 2002)  General Bill, By Sharpe
 A BILL TO AMEND SECTION 46-25-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
 1976, RELATING TO DEFINITIONS ASSOCIATED WITH FERTILIZERS, BY ADDING A
 DEFINITION OF "RESTRICTED FERTILIZER"; TO AMEND SECTION 46-25-210, AS AMENDED,
 RELATING TO REGISTRATION OF FERTILIZER, SO AS TO PROVIDE FOR FERTILIZER
 DISTRIBUTOR PERMITS, TO PROVIDE FOR GENERAL AND RESTRICTED FERTILIZER PERMITS,
 AND TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS SECTION; AND TO AMEND SECTION
 46-25-1170, RELATING TO CIVIL PENALTIES IN ADDITION TO OTHER PENALTIES, SO AS
 TO INCLUDE THE DENIAL, REVOCATION, OR MODIFICATION OF CERTAIN PERMITS WITHIN
 THE SECTION; TO AMEND SECTION 46-25-810, AS AMENDED, RELATING TO INSPECTION
 TAX AND TONNAGE REPORTS ON FERTILIZER, SO AS TO PROVIDE THAT REGISTRANTS OR
 GUARANTORS WHO DISTRIBUTE OR SELL COMMERCIAL FERTILIZER IN SOUTH CAROLINA
 SHALL PAY INSPECTION TAX TO THE DIVISION RATHER THAN THE STATE TREASURER; TO
 AMEND CHAPTER 45, TITLE 46, RELATING TO NUISANCE SUITS ARISING FROM
 AGRICULTURAL OPERATIONS, BY ADDING SECTION 46-45-70 SO AS TO PROVIDE, THAT NO
 ESTABLISHED AGRICULTURAL FACILITY OR AGRICULTURAL OPERATION IS OR BECOMES A
 NUISANCE BY CHANGED CONDITIONS IN OR ABOUT THE FACILITY OR OPERATION; TO AMEND
 SECTION 56-3-670, AS AMENDED, RELATING TO FEES FOR FARM TRUCK LICENSES, SO AS
 TO PROVIDE THAT "FARM TRUCK" INCLUDES A TRUCK TRANSPORTING FARM PROCESSED
 HORTICULTURAL PRODUCTS, INCLUDING SOIL AMENDMENTS AND MULCHES, OTHER THAN
 FIRST MARKET; TO AMEND SECTION 46-40-60, RELATING TO SCHEDULES FOR REMITTING
 ASSESSMENTS, SO AS TO PROVIDE THAT THE DEPARTMENT OF AGRICULTURE MAY SUSPEND
 GRAIN DEALERS' LICENSES ON FAILURE TO TIMELY REMIT CERTAIN PAYMENTS; TO AMEND
 SECTION 46-41-130, RELATING TO PROCEDURES FOR REFUSAL, SUSPENSION, OR
 REVOCATION OF LICENSES, SO AS TO INCLUDE SUSPENSIONS OR REVOCATIONS OF GRAIN
 DEALERS' LICENSES FOR FAILURE TO PAY CERTAIN ASSESSMENTS WITHIN THE PROVISIONS
 OF THIS SECTION; TO AMEND CHAPTER 7, TITLE 46, RELATING TO CLEMSON UNIVERSITY,
 BY ADDING SECTION 46-7-100 SO AS TO PROVIDE THAT CLEMSON UNIVERSITY, IN
 CONJUNCTION WITH THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SHALL
 CREATE A TRAINING AND CERTIFICATION PROGRAM FOR OWNERS OR OPERATORS OF CERTAIN
 ANIMAL FACILITIES, AND TO PROVIDE THAT OPERATORS OF ANIMAL FACILITIES AND
 WASTE UTILIZATION AREAS MUST BE TRAINED AND CERTIFIED ON THE OPERATION OF
 ANIMAL WASTE MANAGEMENT UNDER THE PROGRAM; TO AMEND SECTION 46-45-50, RELATING
 TO LIABILITY FOR POLLUTION AND FLOODING IN CERTAIN SUITS RELATED TO
 AGRICULTURAL OPERATIONS, SO AS TO PROVIDE THAT THE PROVISIONS OF SECTION
 46-45-70 DO NOT AFFECT OR DEFEAT THE RIGHT OF A PERSON TO RECOVER DAMAGES FOR
 ANY INJURIES OR DAMAGES SUSTAINED BY HIM BECAUSE OF POLLUTION OF, OR CHANGE IN
 CONDITION OF, THE WATERS OF A STREAM OR BECAUSE OF AN OVERFLOW ON HIS LANDS;
 AND TO REPEAL SECTION 59-119-130 OF THE 1976 CODE.-amended title

   03/20/02  House  Introduced and read first time HJ-29
   03/20/02  House  Referred to Committee on Agriculture, Natural
                     Resources and Environmental Affairs HJ-29
   04/17/02  House  Committee report: Favorable with amendment
                     Agriculture, Natural Resources and Environmental
                     Affairs HJ-7
   04/18/02  House  Amended HJ-57
   04/24/02  House  Amended HJ-38
   04/24/02  House  Read second time HJ-39
   04/25/02  House  Read third time and sent to Senate HJ-10
   04/30/02  Senate Introduced and read first time SJ-10
   04/30/02  Senate Referred to Committee on Agriculture and Natural
                     Resources SJ-10
   05/16/02  Senate Committee report: Favorable with amendment
                     Agriculture and Natural Resources SJ-28
   05/21/02  Senate Amended SJ-20
   05/21/02  Senate Read second time SJ-20
   05/21/02  Senate Ordered to third reading with notice of
                     amendments SJ-20
   05/22/02  Senate Amended SJ-33
   05/22/02  Senate Read third time and returned to House with
                     amendments SJ-33
   05/29/02  House  Concurred in Senate amendment and enrolled HJ-115
   06/04/02         Ratified R 432
   07/03/02         Signed By Governor
   07/25/02         Effective date 6/30/02 See Act
   07/25/02         Copies available
   08/06/02         Act No. 340

AN ACT TO AMEND SECTION 46-25-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS ASSOCIATED WITH FERTILIZERS, BY ADDING A DEFINITION OF "RESTRICTED FERTILIZER"; TO AMEND SECTION 46-25-210, AS AMENDED, RELATING TO REGISTRATION OF FERTILIZER, SO AS TO PROVIDE FOR FERTILIZER DISTRIBUTOR PERMITS, TO PROVIDE FOR GENERAL AND RESTRICTED FERTILIZER PERMITS, AND TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS SECTION; AND TO AMEND SECTION 46-25-1170, RELATING TO CIVIL PENALTIES IN ADDITION TO OTHER PENALTIES, SO AS TO INCLUDE THE DENIAL, REVOCATION, OR MODIFICATION OF CERTAIN PERMITS WITHIN THE SECTION; TO AMEND SECTION 46-25-810, AS AMENDED, RELATING TO INSPECTION TAX AND TONNAGE REPORTS ON FERTILIZER, SO AS TO PROVIDE THAT REGISTRANTS OR GUARANTORS WHO DISTRIBUTE OR SELL COMMERCIAL FERTILIZER IN SOUTH CAROLINA SHALL PAY INSPECTION TAX TO THE DIVISION RATHER THAN THE STATE TREASURER; TO AMEND CHAPTER 45, TITLE 46, RELATING TO NUISANCE SUITS ARISING FROM AGRICULTURAL OPERATIONS, BY ADDING SECTION 46-45-70 SO AS TO PROVIDE, THAT NO ESTABLISHED AGRICULTURAL FACILITY OR AGRICULTURAL OPERATION IS OR BECOMES A NUISANCE BY CHANGED CONDITIONS IN OR ABOUT THE FACILITY OR OPERATION; TO AMEND SECTION 56-3-670, AS AMENDED, RELATING TO FEES FOR FARM TRUCK LICENSES, SO AS TO PROVIDE THAT "FARM TRUCK" INCLUDES A TRUCK TRANSPORTING FARM PROCESSED HORTICULTURAL PRODUCTS, INCLUDING SOIL AMENDMENTS AND MULCHES, OTHER THAN FIRST MARKET; TO AMEND SECTION 46-40-60, RELATING TO SCHEDULES FOR REMITTING ASSESSMENTS, SO AS TO PROVIDE THAT THE DEPARTMENT OF AGRICULTURE MAY SUSPEND GRAIN DEALERS' LICENSES ON FAILURE TO TIMELY REMIT CERTAIN PAYMENTS; TO AMEND SECTION 46-41-130, RELATING TO PROCEDURES FOR REFUSAL, SUSPENSION, OR REVOCATION OF LICENSES, SO AS TO INCLUDE SUSPENSIONS OR REVOCATIONS OF GRAIN DEALERS' LICENSES FOR FAILURE TO PAY CERTAIN ASSESSMENTS WITHIN THE PROVISIONS OF THIS SECTION; TO AMEND CHAPTER 7, TITLE 46, RELATING TO CLEMSON UNIVERSITY, BY ADDING SECTION 46-7-100 SO AS TO PROVIDE THAT CLEMSON UNIVERSITY, IN CONJUNCTION WITH THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SHALL CREATE A TRAINING AND CERTIFICATION PROGRAM FOR OWNERS OR OPERATORS OF CERTAIN ANIMAL FACILITIES, AND TO PROVIDE THAT OPERATORS OF ANIMAL FACILITIES AND WASTE UTILIZATION AREAS MUST BE TRAINED AND CERTIFIED ON THE OPERATION OF ANIMAL WASTE MANAGEMENT UNDER THE PROGRAM; TO AMEND SECTION 46-45-50, RELATING TO LIABILITY FOR POLLUTION AND FLOODING IN CERTAIN SUITS RELATED TO AGRICULTURAL OPERATIONS, SO AS TO PROVIDE THAT THE PROVISIONS OF 46-45-70 DO NOT AFFECT OR DEFEAT THE RIGHT OF A PERSON TO RECOVER DAMAGES FOR ANY INJURIES OR DAMAGES SUSTAINED BY HIM BECAUSE OF POLLUTION OF, OR CHANGE IN CONDITION OF, THE WATERS OF A STREAM OR BECAUSE OF AN OVERFLOW ON HIS LANDS; AND TO REPEAL SECTION 59-119-130 OF THE 1976 CODE.

Be it enacted by the General Assembly of the State of South Carolina:

Intent of General Assembly in regulating and restricting access to certain fertilizers

SECTION 1. The General Assembly finds that it is in the interest of public safety to regulate access to certain fertilizers, designated by the commission as restricted fertilizers, that may pose an unreasonable threat due to characteristics such as explosive capability. The intent of the following provisions to Chapter 25, Title 46 of the 1976 Code is to provide for and allow for monitoring of the distribution of restricted fertilizers in South Carolina and to encourage distributors to sell restricted fertilizers only to persons known to use such fertilizer for farm or garden purposes.

Restricted fertilizer defined

SECTION 2. Section 46-25-20(2) of the 1976 Code, as last amended by Act 388 of 1992, is further amended by adding:

"(e) 'Restricted fertilizer' means a commercial fertilizer having a potential explosive capacity that is determined by the commission to present an unreasonable threat to public safety."

Permit requirements for fertilizer distributors; general and restricted fertilizer permits

SECTION 3. Section 46-25-210 of the 1976 Code, as last amended by Act 388 of 1992, is further amended to read:

"Section 46-25-210. (A) Each company guaranteeing commercial fertilizer offered for sale, sold, or distributed in this State must be registered with the State. The application for registration must be submitted to the commission on forms furnished by the commission. Upon approval by the commission or its authorized agent, a copy of the registration must be furnished to the applicant.

(1) A person wishing to become a registrant, before engaging in business, shall secure a license or renewal from the commission or its authorized representative. The application for the license must be on forms furnished by and contain the information prescribed by the commission or its authorized representative. The application must be accompanied by an annual registration fee in accordance with the following schedule:

Tonnage Volume of

Registrant License Fee

0-5,000 tons Fifty dollars

5,001-25,000 tons One hundred dollars

More than 25,000 tons Two hundred dollars

A new registrant shall pay a license fee of fifty dollars. On renewal the fee must be based on the tonnage volume of the registrant in accordance with the schedule above. The tonnage is determined from the monthly tonnage reports filed by the registrant in accordance with this chapter. The license must be renewed annually and is effective from July first through June thirtieth of the following year. Fees must be paid by the first day of July of each calendar year. The license may be revoked for a violation of a provision of this chapter or regulations promulgated by the authority.

(2) All brands and grades of specialty fertilizer offered for sale, sold, or distributed in this State must be registered on forms supplied by the commission or its agent. All specialty fertilizers sold or distributed in this State are subject to an annual registration fee of thirty dollars for each product.

(B)(1) A person desiring to become a distributor of fertilizer as defined in this chapter, except for those distributing specialty fertilizers only in packages of forty pounds or less, shall obtain an annual permit from the commission before engaging in such business. The exception for specialty fertilizer sales does not include ammonium nitrate or urea as a single nutrient fertilizer. Permits shall not be required for persons distributing only specialty fertilizers in packages of forty pounds or less; however, no person shall distribute restricted fertilizers in any quantity without a restricted fertilizer permit. Applications for a permit to do such business in South Carolina shall be submitted on application forms furnished by the commission or its agent. Upon approval of the commission, a copy of the permit shall be furnished to the applicant and when furnished, shall authorize the person receiving it to do business as a distributor. All permits shall expire on June thirtieth of each year.

(2) The two authorized categories of permits are a general fertilizer permit and a restricted fertilizer permit. A person who engages in the distribution of commercial fertilizers without a valid permit must have all commercial fertilizer placed under a stop sale order until a valid permit is obtained.

(3) A general fertilizer permit authorizes the permit holder to engage in the distribution of commercial fertilizers except those determined by the commission to be restricted fertilizers as defined in this chapter. This permit category is included in the application of all fertilizer registrants. A person holding a general fertilizer permit may not engage in the distribution of restricted fertilizers. No fee will be charged for this permit.

(4) A restricted fertilizer permit authorizes the permit holder to engage in the distribution of all commercial fertilizers, including those that are designated as restricted fertilizers. A restricted fertilizer permit holder may refuse to sell to persons attempting to purchase restricted fertilizers out of season, in unusual quantities, or under suspect purchase patterns. A restricted fertilizer permit holder must record a valid state or federal driver's license number, or other picture identification card number approved for purchaser identification use by the commission, for the purchaser of restricted fertilizer. This information and additional records as set forth by the commission must be maintained for a minimum of two years. A registrant may obtain this permit by indication of intent to distribute restricted fertilizers on the application for registration. No distributor or registrant shall supply restricted fertilizers to a distributor or other persons or entities for resale who do not hold a valid restricted fertilizer permit. The annual permit fee shall be two hundred fifty dollars. Fertilizer registrants shall not be subject to permitting fees.

(5) Notwithstanding another provision of law, the Department of Public Safety must provide to the director access to identifying information and drivers' license records as needed to verify the identity of permit holders and persons purchasing restricted fertilizer. For homeland security purposes, identifying information relating to the holder of a general or restricted fertilizer permit is exempt from disclosure under the Freedom of Information Act.

(C) Except as provided in this section, a person who violates a provision of this section is guilty of a misdemeanor and, upon conviction, is subject to the criminal penalties prescribed in Section 46-9-90(A) and the civil penalties prescribed by this chapter."

Denial, suspension, or revocation of permits; civil and other penalties

SECTION 4. Section 46-25-1170 of the 1976 Code, as added by Act 595 of 1988, is amended to read:

"Section 46-25-1170. In addition to a denial, suspension, revocation, or modification of a provision of a license, permit, or certificate, or any other penalty provided in this chapter, a person who violates a provision of this chapter may be assessed a civil penalty by the director of not more than one thousand dollars for each offense."

Inspection tax and tonnage reports to division; collection fee

SECTION 5. Section 46-25-810 of the 1976 Code, as last amended by Act 388 of 1992, is further amended to read:

"Section 46-25-810. For the purpose of carrying out the provisions of this chapter, all registrants or guarantors who distribute or sell any commercial fertilizer in South Carolina shall pay to the division an inspection tax of twenty-five cents for each ton of commercial fertilizer sold. A report of tonnage is due and the inspection tax payable monthly on the fifteenth day of the following month covering tonnage of commercial fertilizer sold during the preceding month by the registrant or guarantor transacting, distributing, or selling to a nonregistrant. If the tonnage report is not filed and the payment of inspection taxes is not made within fifteen days after the date due, a collection fee amounting to ten percent of the amount due must be assessed against the guarantor, and the amount of fees due constitutes a debt and become the basis of a judgment against the guarantor. If the tonnage report is not filed and the payment of the inspection tax and collection fee is not made within thirty days after the date due, or if the report is false, fifteen days after due written notice and opportunity for hearing have been given, the commission may cancel the registration of commercial fertilizer registered by the delinquent guarantor."

Established agricultural facility or operation not a nuisance by changed conditions; exception

SECTION 6. Chapter 45 of Title 46 of the 1976 Code is amended by adding:

"Section 46-45-70. No established agricultural facility or any agricultural operation at an established agricultural facility is or may become a nuisance, private or public, by any changed conditions in or about the locality of the facility or operation. This section does not apply whenever a nuisance results from the negligent, improper, or illegal operation of an agricultural facility or operation."

Farm truck defined

SECTION 7. Section 56-3-670(A) of the 1976 Code, as last amended by Act 417 of 1994, is further amended to read:

"(A) For the purpose of this section, 'farm truck' is defined as a truck used exclusively by the owner for agricultural, horticultural, and dairying operations or livestock and poultry raising and includes transporting farm processed horticultural products, including soil amendments and mulches, other than first market. However, farm trucks with an empty weight of less than seven thousand five hundred pounds may be used for ordinary domestic purposes and general transportation but must not be used to transport persons or property for hire."

Suspension of grain dealers' license on failure to remit assessments

SECTION 8. Section 46-40-60(B) of the 1976 Code, as added by Act 381 of 2000, is further amended to read:

"(B) In case any person subject to this section fails to make a report and remittance when required, the department shall determine the amount of the assessment according to its best judgment and information and such amount shall be prima facie correct, and the person who failed to make the report, within ten days after notice of the amount of the assessment is mailed to him, shall pay the assessment, together with a penalty of ten percent, or dispute such assessment and request a hearing to determine its amount and the penalty to be imposed. No payment shall be made until the department enters its order determining the amount of the payment but the payment must be made within ten days' notice of the order. On failure to remit payment within ten days of the receipt of the order, the department may suspend the dealer's license pursuant to Section 46-41-130."

Procedure for refusal, suspension, or revocation of license; temporary suspension

SECTION 9. Section 46-41-130 of the 1976 Code is amended to read:

"Section 46-41-130. (A) Before the commissioner refuses to issue a license or revokes a license he shall give ten days' notice, by registered mail, to the applicant or licensee of a time and place of hearing. At the hearing the applicant or licensee must be allowed to appear in person or by or with counsel and to produce witnesses. If the commissioner finds the applicant or licensee guilty of any of the acts provided in Section 46-41-120 or finds that the grain dealer has not paid the assessment prescribed by Section 46-40-60(B) of the Grain Dealers Guaranty Fund, the commissioner may refuse, suspend, or revoke the license and shall give immediate notice of his action to the applicant or licensee.

(B) The commissioner may temporarily suspend and take possession of a license simultaneously with the institution of proceedings under this section or Section 46-41-70 if he finds there is imminent danger to public welfare."

Training and certification program for owners or operators of an animal facility; program requirements; training and certification of operators in animal waste management

SECTION 10. The 1976 Code is amended by adding:

"Section 46-7-100. (A) Clemson University, in conjunction with the Department of Health and Environmental Control, shall create a training and certification program for owners or operators of an animal facility as defined in Regulation 61-43 which must include, but is not limited to, understanding relevant regulations, issues, standards, principles, and practices regarding siting and management of an animal facility and land application of animal waste; controlling vectors, testing for toxic metals, organic materials, and other elements; and implementing emergency procedures and spill prevention protocols.

(B) An operator of an animal facility and waste utilization area must be trained and certified according to South Carolina Department of Health and Environmental Control Regulations on the operation of animal waste management under the program created in subsection (A)."

Liability for pollution and flooding

SECTION 11. Section 46-45-50 of the 1976 Code is amended to read:

"Section 46-45-50. The provisions of Section 46-45-70 do not affect or defeat the right of a person to recover damages for any injuries or damages sustained by him because of pollution of, or change in condition of, the waters of a stream or because of an overflow on his lands."

Repeal

SECTION 12. Section 59-119-130 of the 1976 Code is repealed.

Time effective

SECTION 13. Upon approval by the Governor this act takes effect on June 30, 2002.

Ratified the 4th day of June, 2002.

Approved the 3rd day of July, 2002.