BILL REQ. #:  H-0565.3 

Read first time 01/14/09.   Referred to Committee on Environmental Health.

     AN ACT Relating to the use of bisphenol A; reenacting and amending RCW 70.105D.070; 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) "Alternative" or "alternatives" means a substitute process, product, material, chemical, strategy, or combination of these that serves a functionally equivalent purpose to a chemical in a consumer product.
     (2) "Department" means the department of ecology.

NEW SECTION.  Sec. 2   Beginning July 1, 2010, no manufacturer, wholesaler, or retailer may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state any of the following:
     (1) Any bottle, cup, or other container that contains bisphenol A if that container is designed or intended to be filled with any liquid, food, or beverage primarily for consumption from that container by children three years of age or younger and is sold or distributed without containing any liquid, food, or beverage;
     (2) Any liquid, food, or beverage in a can, jar, or other container containing bisphenol A, at a level of .5 parts per billion if the liquid, food, or beverage is designed or intended primarily for consumption by children three years of age or younger; or
     (3) Any sports water bottle.

NEW SECTION.  Sec. 3   Manufacturers may not replace bisphenol A as a result of the prohibitions in section 2 of this act with a high priority chemical that has been identified by the department under RCW 70.240.030.

NEW SECTION.  Sec. 4   (1) By July 1, 2012, the department shall conduct an alternatives assessment for bisphenol A in cans, jars, or other containers that are used to hold liquids, food, or beverages primarily for human consumption and are not prohibited under section 2 of this act.
     (2) In conducting the alternatives assessment, the department shall use scientific studies and other relevant findings regarding bisphenol A and the alternatives to the use of bisphenol A, including any information identified in section 5(1) (a) through (c) of this act.
     (3) For the purpose of determining whether a safer alternative is available, the department may presume that, in the absence of persuasive evidence to the contrary:
     (a) An alternative is a safer alternative if the alternative is not a high priority chemical that is of high concern for children, as determined under RCW 70.240.030;
     (b) A safer alternative is available if the sale of the product containing bisphenol A has been banned by another state within the United States;
     (c) A safer alternative is available if the alternative is sold in the United States.

NEW SECTION.  Sec. 5   (1) The manufacturer of a product described in section 4 of this act containing bisphenol A must provide the following information if requested by the department as part of its alternatives assessment:
     (a) Information on bisphenol A and alternatives to the use of bisphenol A;
     (b) Information on the hazard characteristics of the alternative chemicals; and
     (c) An assessment of the availability, cost, feasibility, and performance, including potential for harm to human health and the environment, of alternatives to bisphenol A and the reason the chemical is used in the manufacture of the product in lieu of identified alternatives.
     (2) If a manufacturer fails to provide the requested information within three months of the date requested, the department may impose a penalty on the manufacturer. The amount of the penalty must be calculated based on the cost of obtaining the information on the availability of safer alternatives from another source.

NEW SECTION.  Sec. 6   (1) If the department finds, after consideration of the alternatives assessment conducted under section 4 of this act and other relevant information submitted to or obtained by the department, that one or more safer alternatives to bisphenol A are available, the department must seek public input on their findings and present them in a report to the appropriate committees of the legislature by December 31st of the year in which the findings are made.
     (2)(a) Before the department submits its report on its findings to the legislature under subsection (1) of this section, it must publish its findings in the Washington State Register and provide notice of its findings by other means designed to inform those most likely to have an interest in the findings.
     (b) After the legislative session that follows the submission of the report on findings, the department shall adopt rules that prohibit the manufacture, sale, or distribution of products found to contain bisphenol A.

NEW SECTION.  Sec. 7   (1) A manufacturer of products that are restricted under this chapter must notify persons that sell the manufacturer's products in this state about the provisions of this chapter no less than ninety days prior to the effective date of the restrictions.
     (2) A manufacturer that produces, sells, or distributes a product prohibited from manufacture, sale, or distribution in this state under this chapter shall recall the product and reimburse the retailer or any other purchaser for the product.

NEW SECTION.  Sec. 8   (1) A manufacturer, wholesaler, or retailer that manufacturers, knowingly sells, or distributes products in violation of this chapter is subject to a civil penalty not to exceed five thousand dollars for each violation in the case of a first offense. Manufacturers, wholesalers, or retailers who are repeat violators are subject to a civil penalty not to exceed ten thousand dollars for each repeat offense. Penalties collected under this section must be deposited in the state toxics control account created in RCW 70.l05D.070.
     (2) Retailers who unknowingly sell products that are restricted from sale under this chapter are not subject to the civil penalties under this chapter.

NEW SECTION.  Sec. 9   Expenses to cover the cost of administering this chapter shall be paid from the toxics control account under RCW 70.150D.070.

Sec. 10   RCW 70.105D.070 and 2008 c 329 s 921, 2008 c 329 s 920, 2008 c 329 s 919, and 2008 c 328 s 6009 are each reenacted and amended to read as follows:
     (1) The state toxics control account and the local toxics control account are hereby created in the state treasury.
     (2) The following moneys shall be deposited into the state toxics control account: (a) Those revenues which are raised by the tax imposed under RCW 82.21.030 and which are attributable to that portion of the rate equal to thirty-three one-hundredths of one percent; (b) the costs of remedial actions recovered under this chapter or chapter 70.105A RCW; (c) penalties collected or recovered under this chapter; and (d) any other money appropriated or transferred to the account by the legislature. Moneys in the account may be used only to carry out the purposes of this chapter, including but not limited to the following activities:
     (i) The state's responsibility for hazardous waste planning, management, regulation, enforcement, technical assistance, and public education required under chapter 70.105 RCW;
     (ii) The state's responsibility for solid waste planning, management, regulation, enforcement, technical assistance, and public education required under chapter 70.95 RCW;
     (iii) The hazardous waste cleanup program required under this chapter;
     (iv) State matching funds required under the federal cleanup law;
     (v) Financial assistance for local programs in accordance with chapters 70.95, 70.95C, 70.95I, and 70.105 RCW;
     (vi) State government programs for the safe reduction, recycling, or disposal of hazardous wastes from households, small businesses, and agriculture;
     (vii) Hazardous materials emergency response training;
     (viii) Water and environmental health protection and monitoring programs;
     (ix) Programs authorized under chapter 70.146 RCW;
     (x) A public participation program, including regional citizen advisory committees;
     (xi) Public funding to assist potentially liable persons to pay for the costs of remedial action in compliance with cleanup standards under RCW 70.105D.030(2)(e) but only when the amount and terms of such funding are established under a settlement agreement under RCW 70.105D.040(4) and when the director has found that the funding will achieve both (A) a substantially more expeditious or enhanced cleanup than would otherwise occur, and (B) the prevention or mitigation of unfair economic hardship; ((and))
     (xii) Development and demonstration of alternative management technologies designed to carry out the hazardous waste management priorities of RCW 70.105.150; and
     (xiii) Expenses to cover the cost of administering chapter 70.--RCW (the new chapter created in section 11 of this act).
     (3) The following moneys shall be deposited into the local toxics control account: Those revenues which are raised by the tax imposed under RCW 82.21.030 and which are attributable to that portion of the rate equal to thirty-seven one-hundredths of one percent.
     (a) Moneys deposited in the local toxics control account shall be used by the department for grants or loans to local governments for the following purposes in descending order of priority:
     (i) Remedial actions;
     (ii) Hazardous waste plans and programs under chapter 70.105 RCW;
     (iii) Solid waste plans and programs under chapters 70.95, 70.95C, 70.95I, and 70.105 RCW;
     (iv) Funds for a program to assist in the assessment and cleanup of sites of methamphetamine production, but not to be used for the initial containment of such sites, consistent with the responsibilities and intent of RCW 69.50.511; and
     (v) Cleanup and disposal of hazardous substances from abandoned or derelict vessels, defined for the purposes of this section as vessels that have little or no value and either have no identified owner or have an identified owner lacking financial resources to clean up and dispose of the vessel, that pose a threat to human health or the environment.
     (b) Funds for plans and programs shall be allocated consistent with the priorities and matching requirements established in chapters 70.105, 70.95C, 70.95I, and 70.95 RCW, except that any applicant that is a Puget Sound partner, as defined in RCW 90.71.010, along with any project that is referenced in the action agenda developed by the Puget Sound partnership under RCW 90.71.310, shall, except as conditioned by RCW 70.105D.120, receive priority for any available funding for any grant or funding programs or sources that use a competitive bidding process. During the 2007-2009 fiscal biennium, moneys in the account may also be used for grants to local governments to retrofit public sector diesel equipment and for storm water planning and implementation activities.
     (c) Funds may also be appropriated to the department of health to implement programs to reduce testing requirements under the federal safe drinking water act for public water systems. The department of health shall reimburse the account from fees assessed under RCW 70.119A.115 by June 30, 1995.
     (d) To expedite cleanups throughout the state, the department shall partner with local communities and liable parties for cleanups. The department is authorized to use the following additional strategies in order to ensure a healthful environment for future generations:
     (i) The director may alter grant-matching requirements to create incentives for local governments to expedite cleanups when one of the following conditions exists:
     (A) Funding would prevent or mitigate unfair economic hardship imposed by the clean-up liability;
     (B) Funding would create new substantial economic development, public recreational, or habitat restoration opportunities that would not otherwise occur; or
     (C) Funding would create an opportunity for acquisition and redevelopment of vacant, orphaned, or abandoned property under RCW 70.105D.040(5) that would not otherwise occur;
     (ii) The use of outside contracts to conduct necessary studies;
     (iii) The purchase of remedial action cost-cap insurance, when necessary to expedite multiparty clean-up efforts.
     (4) Except for unanticipated receipts under RCW 43.79.260 through 43.79.282, moneys in the state and local toxics control accounts may be spent only after appropriation by statute.
     (5) One percent of the moneys deposited into the state and local toxics control accounts shall be allocated only for public participation grants to persons who may be adversely affected by a release or threatened release of a hazardous substance and to not-for-profit public interest organizations. The primary purpose of these grants is to facilitate the participation by persons and organizations in the investigation and remedying of releases or threatened releases of hazardous substances and to implement the state's solid and hazardous waste management priorities. However, during the 1999-2001 fiscal biennium, funding may not be granted to entities engaged in lobbying activities, and applicants may not be awarded grants if their cumulative grant awards under this section exceed two hundred thousand dollars. No grant may exceed sixty thousand dollars. Grants may be renewed annually. Moneys appropriated for public participation from either account which are not expended at the close of any biennium shall revert to the state toxics control account.
     (6) No moneys deposited into either the state or local toxics control account may be used for solid waste incinerator feasibility studies, construction, maintenance, or operation, or, after January 1, 2010, for projects designed to address the restoration of Puget Sound, funded in a competitive grant process, that are in conflict with the action agenda developed by the Puget Sound partnership under RCW 90.71.310.
     (7) The department shall adopt rules for grant or loan issuance and performance.
     (8) During the 2007-2009 fiscal biennium, the legislature may transfer from the local toxics control account to the state toxics control account such amounts as reflect excess fund balance in the account.
     (9) During the 2007-2009 fiscal biennium, the local toxics control account may also be used for a standby rescue tug at Neah Bay.

NEW SECTION.  Sec. 11   Sections 1 through 9 of this act constitute a new chapter in Title 70 RCW.