WSR 18-03-105

[Filed January 18, 2018, 11:41 a.m.]

In 2010, Washington passed the better brakes law restricting the use of toxic materials in motor vehicle brake friction materials (also known as brake pads and shoes) in Washington state. This law restricted the use of lead, asbestos, and several heavy metals beginning in 2015 with a copper phase out by 2025. According to RCW 70.285.030 (2)-(3), vehicle brake pads manufactured after 2021 must contain less than five percent copper and must contain less than 0.5 percent copper by 2025.

There are several exemptions under the better brakes law, including a narrow exemption for brake friction materials manufactured as part of an original equipment service contract (OESC) parts. WAC 173- 901-040 defines OESC parts as brake friction material that:

"(a) Is provided as service parts originally designed for and using the same brake friction material formulation sold with a new motor vehicle. If there are any changes to the design of the service part's brake friction formulation, the product is no longer brake fiction material manufactured as part of an original equipment service contract; and

(b) Is manufactured as part of a contract between a vehicle manufacturer and a brake friction material manufacturer that requires the brake friction material manufacturer to provide brakes with the identical brake friction material formulation to those that originally came with a new motor vehicle. The brake friction material manufacturer may only sell these parts directly to the other party to the contract, the vehicle manufacturer."

OESC parts are only exempted from those constituent limits that come into effect after the date of manufacture of the vehicle for which the part is made as specified in RCW 70.285.030 (7)–(9). These sections state that OESC parts are subject to the constituent limits that are or were in effect during manufacture of the vehicle, and are subject to certification requirements for those limits. This means manufacturers of OESC parts for vehicles manufactured after January 1, 2015 (the date on which the law's limits on lead, asbestos, and several heavy metals went into effect), are required to test their products and submit signed self-certification documents to the Washington department of ecology (ecology). In addition to these requirements, manufacturers claiming this exemption must also report the vehicle for which the parts were manufactured with their signed self-certification documents to ecology. The certification process for OESC parts is outlined in WAC 173-901-150.

When ecology adopted the better brakes regulations, WAC 173-901-150 (4)(b)(ii) directed manufacturers to mark all OESC parts with an "X" or "WX." After a review of the current business practices and technical review, ecology determined that this marking is not necessary to determine compliance with the copper phase out requirements. However, OESC manufacturers still must comply with the general better brakes regulations, which require that brake friction materials' copper content to be marked with an "A" or "B" or "N" marking. The following table illustrates the allowed markings under this policy:

To implement this guidance, ecology will, within its enforcement discretion, refrain from enforcing the requirement of WAC 173-901-150 (4)(b)(ii) when manufacturers meet the requirements set forth in this policy. Specifically, a brake friction material manufacturer that certifies OESC parts in accordance with the requirements of Washington's better brakes law and marks them with the "A," "B," or "N" marking does not have to also mark the brakes with an "X" or a "WX."

For additional information, contact Mr. Sean D. Smith at sean.smith2@ecy.wa.gov. More information on the better brakes program can be found at https://www.ecology.wa.gov/Waste-Toxics/Reducing-toxic-chemicals/Better-Brakes-law.