BILL REQ. #:  S-3405.1 

READ FIRST TIME 04/19/05.   

     AN ACT Relating to brominated flame retardants; adding a new chapter to Title 70 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Brominated flame retardant" means any chemical containing the element bromine that may be added to a plastic, foam, or textile to inhibit flame formation. Brominated flame retardant includes, but is not limited to, a chemical or group of chemicals known as polybrominated biphenyls, polybrominated diphenyl ethers, tetrabromobisphenol-A, and hexabromocyclododecane.
     (2) "Department" means the department of ecology.
     (3) "Manufacturer" includes any person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces a product containing polybrominated diphenyl ethers or an importer or domestic distributor of a noncomestible product containing polybrominated diphenyl ethers.
     (4) "Polybrominated diphenyl ethers" means chemical forms that consist of diphenyl ethers bound with bromine atoms. Polybrominated diphenyl ethers include, but are not limited to, the three primary forms of the commercial mixtures known as pentabromodiphenylether (penta-bde), octabromodiphenylether (octa-bde), and decabromodiphenylether (deca-bde).
     (5) "Commercial decabromodiphenylether" means the chemical mixture of decabromodiphenylether, including associated polybrominated diphenyl ether impurities not intentionally added. No single polybrominated diphenyl ether impurity shall exceed one percent by mass of the mixture and the combination of all polybrominated diphenyl ether impurities shall not exceed four percent by mass of the mixture.
     (6) "Transportation vehicle" means any mechanized vehicle that is used to transport goods or people including, but not limited to, airplanes, automobiles, motorcycles, trucks, buses, trains, boats, ships, streetcars, or monorail cars.
     (7) "Used product" means any product that has been previously owned, purchased, or sold in commerce. "Used product" does not include any product manufactured after July 1, 2006.

NEW SECTION.  Sec. 2   (1) Except as provided in subsections (3) through (6) of this section, after July 1, 2007, no person may manufacture or knowingly sell, offer for sale, or distribute for sale or distribute for use in this state noncomestible products containing polybrominated diphenyl ethers.
     (2) A manufacturer of products containing a polybrominated diphenyl ether that has been restricted under this section must, once the restriction takes effect, notify persons that sell the manufacturer's products about the provisions of this section.
     (3) Subsections (1) and (2) of this section do not apply to:
     (a) The manufacture, sale, repair, distribution, maintenance, refurbishment, or modification of any raw material or component part used in a transportation vehicle or any new transportation vehicle with component parts, including original parts and spare parts, containing commercial decabromodiphenylether;
     (b) The sale or distribution of any used transportation vehicle with component parts containing polybrominated diphenyl ethers;
     (c) The sale of any used transportation vehicle parts, or new transportation vehicle parts manufactured prior to July 1, 2007, that contain polybrominated diphenyl ethers;
     (d) The use of commercial decabromodiphenylether in the maintenance, refurbishment, or modification of transportation equipment;
     (e) The manufacture, sale, repair, distribution, maintenance, refurbishment, or modification of equipment containing polybrominated diphenyl ethers and used primarily for military or federally funded space program applications. This exemption does not cover consumer-based goods with broad applicability;
     (f) The sale or distribution by a business, charity, or private party of any used product containing polybrominated diphenyl ethers; or
     (g) The manufacture, sale, or distribution of any new product or product component consisting of recycled or used materials containing commercial decabromodiphenylether. Products containing any new polybrominated diphenyl ethers do not qualify for this exemption.
     (4) In addition to the specific exemptions authorized in this section, a manufacturer or user of a commercial decabromodiphenylether product may apply for an exemption for a specific use of commercial decabromodiphenylether by filing a written petition with the department. An exemption may be granted for a term not to exceed three years and may be renewed upon written application if the department finds that the specific use of commercial decabromodiphenylether continues to meet the criteria of this section and the manufacturer or other persons comply with the conditions of its original approval. The department may grant an exemption for a specified use of commercial decabromodiphenylether with or without conditions upon finding that the petitioner has demonstrated that:
     (a) A technically feasible alternative to the use of commercial decabromodiphenylether is not available at reasonable cost; or
     (b) The potential harm to public health and the environment directly posed by a technically feasible and available alternative is greater than the potential harm posed by commercial decabromodiphenylether.
     (5) A manufacturer or user of safety systems required by the federal aviation administration may apply for an exemption for a specific use of penta-bde or octa-bde by filing a written petition with the department. The exemption may be granted for a term not to exceed eighteen months and may be renewed upon written application if the department finds that the specific use of penta-bde or octa-bde continues to meet the criteria of this section and the manufacturer or other persons comply with the conditions of its original approval. The department may grant an exemption for a specified use of penta-bde or octa-bde with or without conditions upon finding that the petitioner has demonstrated that:
     (a) A technically feasible alternative to the use of penta-bde or octa-bde is not available at reasonable cost; or
     (b) The potential harm to public health and the environment directly posed by a technically feasible and available alternative is greater than the potential harm posed by penta-bde or octa-bde.
     (6) The governor may, by executive order, allow for the manufacture, sale, and distribution of products containing commercial decabromodiphenylether between July 1, 2007, and July 1, 2008, if the governor finds that a technically feasible alternative to the use of commercial decabromodiphenylether is not available at reasonable cost or that the potential harm to public health and the environment directly posed by a technically feasible and available alternative is greater than the potential harm posed by commercial decabromodiphenylether.
     (7) For the purposes of this section, a "technically feasible alternative that is available at a reasonable cost" means an alternative that is available at a cost and in sufficient quantity to permit the manufacturer or user to maintain an economically viable product.
     (8) Nothing in this section restricts the ability of a manufacturer, importer, or distributor from transporting products containing polybrominated diphenyl ethers through the state, or storing such products in the state for later distribution outside the state.

NEW SECTION.  Sec. 3   (1) Subject to available funding, the department and the department of health shall conduct two separate stakeholder processes to develop a proposal for a ban or restrictions on the use of commercial decabromodiphenylether in transportation vehicles and to develop a proposal for the ban or management of used and recycled products containing polybrominated diphenyl ethers. These stakeholder processes shall include:
     (a) Establishing a timeline for a ban or restrictions on the use of commercial decabromodiphenylether in transportation vehicles based on an evaluation of the availability of safer alternatives;
     (b) An examination of problems related to the reuse and recycling of products containing polybrominated diphenyl ethers and methods of management or disposal that will result in the lowest potential for polybrominated diphenyl ethers entering the environment, the food chain, or a person's body; and
     (c) An examination of approaches to education under this chapter that would assist retailers in identifying products containing polybrominated diphenyl ethers in their inventory.
     (2) The department and the department of health shall report the findings and recommendations of the stakeholder process regarding the ban or restrictions on the use of commercial decabromodiphenylether and the education and assistance for retailers to the appropriate committees of the legislature by December 15, 2005. The department and the department of health shall report the findings and recommendations of the stakeholder process regarding the ban or management of used and recycled products to the appropriate committees of the legislature by June 30, 2006. The preparation of the reports required in this subsection is subject to available funding.
     (3) The department and the department of health shall conduct a review of the issues and the potential timeline for a requirement to label brominated flame retardants sold in Washington. The review shall include the type of information required on the label, including guidance on proper waste management of the product in accordance with state and federal law. The department and the department of health shall report the findings and recommendations to the appropriate committees of the legislature by December 15, 2006.

NEW SECTION.  Sec. 4   (1) By January 1, 2006, the department of general administration shall:
     (a) Give priority and preference to the purchase of equipment, supplies, and other products that do not contain polybrominated diphenyl ethers; and
     (b) Make available for purchase and use by all state agencies only equipment, supplies, and other products that do not contain polybrominated diphenyl ethers.
     (2) The department of general administration shall, by January 1, 2006, revise its rules, policies, and guidelines to implement the purposes of this chapter.

NEW SECTION.  Sec. 5   A manufacturer of products containing polybrominated diphenyl ethers in violation of this chapter is punishable by a civil penalty not to exceed one thousand dollars for each violation in the case of a first offense. Manufacturers who are repeat violators are liable for a civil penalty not to exceed five thousand dollars for each repeat offense. Penalties collected under this section must be deposited in the state toxics control account created in RCW 70.105D.070.

NEW SECTION.  Sec. 6   Sections 1 through 5 of this act constitute a new chapter in Title 70 RCW.