ENGROSSED SECOND SUBSTITUTE HOUSE BILL 1472


State of Washington	64th Legislature	2015 Regular Session

By House Appropriations (originally sponsored by Representatives Fitzgibbon, Peterson, Goodman, McBride, Springer, Fey, Farrell, Hudgins, Kagi, Walkinshaw, Gregerson, S. Hunt, Jinkins, Tharinger, and Pollet; by request of Governor Inslee)

READ FIRST TIME 02/27/15.

AN ACT Relating to using chemical action plans to require safer chemicals in Washington; amending RCW 43.21B.110 and 43.21B.110; adding a new section to chapter 39.26 RCW; adding new sections to chapter 43.131 RCW; adding a new chapter to Title 70 RCW; creating new sections; prescribing penalties; providing an effective date; and providing an expiration date.

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) "Alternatives assessment" means a process for identifying and comparing chemical and nonchemical alternatives currently in existence that can be practicably and economically used to replace the use of a chemical. The objective of an alternatives assessment is to assess less toxic chemicals or nonchemical alternatives to replace the use of a chemical in a product and to avoid the unintended consequence of switching to a substitute that presents an equivalent or greater concern. An alternatives assessment must follow the guidelines issued by the interstate chemicals clearinghouse, the national academy of sciences, or equivalent methodology. At a minimum, an alternatives assessment includes: An evaluation of chemical hazard, exposure, performance, cost, and availability; information for each alternative considered; and the identification of alternatives.

(2) "Biomonitoring" means assessment of human exposures to chemicals by measuring the chemicals or their metabolites in human tissues or specimens, such as blood, breast milk, and urine.

(3) "Chemical" means a substance, including metals, with a distinct molecular composition or a group of structurally related substances and includes the breakdown products of the substance or substances that form through decomposition, degradation, or metabolism.

(4) "Chemical action plan" means a plan that identifies, characterizes, and evaluates uses and releases of a specific chemical or group of chemicals and identifies actions needed to protect human health and the environment.

(5) "Department" means the department of ecology.

(6) "Director" means the director of the department of ecology or the director's designee.

(7) "Manufacturer" means any person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces a product or is an importer or domestic distributor of a product sold or offered for sale in or into the state. "Manufacturer" does not include small businesses as defined in RCW 19.85.020.

(8) "Product" means any item sold for residential or commercial use including any component or product packaging. "Product" does not include the following items, but does include their packaging:

(a) Food or beverage;

(b) Tobacco products;

(d) Products produced under military specifications;

(e) Finished products regulated by the federal aviation administration;

(f) Chemical products used to produce an agricultural commodity, as defined in RCW 17.21.020; and

(g) Any previously owned product sold in casual or isolated sales as defined in RCW 82.04.040 or products sold by nonprofit organizations.

(9) "Product component" means a uniquely identifiable material or coating that is included as a part of a finished product.

(10) "Safer alternative" means an alternative that is less hazardous to humans or the environment than the existing chemical or chemical process. A safer alternative to a particular chemical may include a chemical substitute or a change in materials or design that eliminates the need for a chemical alternative.

(11) "Summary report" means a report prepared by the department summarizing available alternatives assessments and includes a determination regarding the existence of a safer alternative. The summary report also includes a determination of the completeness of the alternatives assessments reviewed and identifies unsuitable alternatives.

(12) "Unsuitable alternative" means an alternative identified through the alternatives assessment process that does not meet the hazard, exposure, cost, performance, and availability criteria of a safer alternative.

NEW SECTION. Sec. 2. (1) Beginning January 1, 2016, and every two years thereafter, the department, in consultation with the department of health, must select up to four chemicals for the development of chemical action plans as specified in section 4 of this act from the following:

(a) Chemicals identified by the United States environmental protection agency in section 304(a)(1) of the clean water act, water quality criteria for human health, that impact Washington state clean water bodies as identified under section 303(d) of the clean water act; or

(b) Chemicals that meet the criteria of a high priority chemical as defined in RCW 70.240.010 as applied to humans, plants, or wildlife, and either:

(i) Meet the criteria for a high priority chemical of high concern for children as described in RCW 70.240.030(1) (a) through (c); or

(ii) Have been shown through environmental monitoring studies to be present in fish, wildlife, air, water, soil, or sediment.

(2) The department may conduct environmental monitoring or, subject to the availability of amounts appropriated for this specific purpose, may request the department of health to conduct biomonitoring of a chemical to verify the chemical is present in the state's environment or population or to better understand environmental or human exposures in the state. Environmental monitoring and biomonitoring conducted pursuant to this chapter must be of a minimum scope necessary to adequately inform a chemical action plan.

(3)(a) At least two of the first four chemicals selected for a chemical action plan must be chosen from the chemicals identified in subsection (1)(a) of this section.

(b) When selecting chemicals for the development of chemical action plans, the director shall notify the public of the selection, the basis for the selection, and a draft schedule. The notice must be published in the Washington State Register. The department shall provide the public with an opportunity for review and comment before finalizing the schedule.

(i) Opportunities for reducing or phasing out uses, production, or releases of a chemical;

(ii) Scientific evidence on the combined effects of exposure to the chemical and other substances commonly present in the Washington environment;

(iii) Scientific evidence on the susceptibility of sensitive population groups and environmental media from exposure to the chemical, as well as cumulative effects of multiple exposures; and

(iv) Existing plans or regulatory requirements to reduce or phase out the use and releases of the chemical.

(d) The department must identify the sources of information it relied upon in selecting chemicals for the development of chemical action plans under this section, including peer-reviewed science.

NEW SECTION. Sec. 3. (1) The department may require information from manufacturers of products that contain a chemical selected for a chemical action plan under section 2 of this act. Prior to requesting information from a manufacturer under this subsection, the department must consult with a chemical action plan external advisory committee, if one has been formed yet, to evaluate the particular chemical that is the subject of the information request. The department may only make reasonable requests of manufacturers that are limited in their scope and frequency and that are focused on:

(a) The most common and prevalent uses of the chemicals or products containing the chemicals, based on the department's existing knowledge about the chemical;

(b) Areas where there is an identified gap in public or department knowledge about a chemical; and

(c) Chemical uses or products that the department has reason to believe are likely to be responsible for or associated with a significant portion of releases into the environment or public health exposures.

(2) Within six months of a request by the department, manufacturers shall report the following:

(a) The name and address of the manufacturer and the name, address, and phone number of a contact person for the manufacturer;

(b) The name of the chemical used or produced and its chemical abstracts service registry number;

(d) A description of the function of the chemical in the product;

(e) The amount of the chemical used in each unit of the product or product component, which may be reported in ranges, rather than the exact amount;

(f) An estimate of average daily, weekly, or monthly commercial consumption of the chemical by businesses or the public; and

(g) Any other information the manufacturer deems relevant to the appropriate use of the product.

(3) In response to an information request from the department under this section, a manufacturer may extrapolate amounts and estimates from national data. The resulting submission must include the information in subsection (2)(a) of this section for each manufacturer. However, the information required by subsection (2)(b) through (g) of this section is not required to be provided in a manner that identifies individual manufacturers.

(4) The department shall specify the required format for submission of the information required under subsection (2) of this section. The format should be generally consistent with the format specified in other states with substantially similar reporting requirements.

(5) Multiple businesses, or a business association, may collaborate and submit a single submission on a chemical found in similar products.

(6) Where information submitted by a manufacturer under chapter 70.240 RCW is the same as the information required to be submitted by the manufacturer in subsection (2) of this section, that manufacturer is not required to submit the same information again.

(7) The department may, by order, require a manufacturer subject to the reporting requirement in subsection (2) of this section to provide additional information that is relevant to the development of a chemical action plan under section 4 of this act. An order by the department must also meet the reasonableness criteria of subsection (1) of this section.

NEW SECTION. Sec. 4. (1) When developing a chemical action plan, the department shall convene an external advisory committee to provide stakeholder input, expertise, and additional information. All advisory committee meetings must be open to the public. The department must invite representatives from, at minimum, the following organizations and entities to serve as external advisory committee members: Large and small business sectors; a representative of a statewide business association with over one thousand total members and that represents multiple business sectors; community, environmental, and public health advocacy groups; local governments; affected and interested businesses; and public health agencies. State agencies and technical experts may be requested to participate.

(2) All chemical action plans must include the following types of information, evaluations, and recommendations:

(a) Chemical name, properties, uses, and manufacturers;

(b) An analysis of the available information on the production, unintentional production, uses, and disposal of the chemical;

(c) Information on the known or potential impacts on human health and the environment associated with the use and release of the chemical; and

(d) An evaluation of the regulatory and nonregulatory approaches that influence production, uses, releases, and management of the chemical.

(3)(a) All chemical action plans must identify actions, if needed, to eliminate or reduce threats to human health and the environment and include recommendations for managing, reducing, or phasing out the different uses and releases of the chemical to minimize exposure.

(b) Recommendations must be based on an evaluation of the following factors:

(i) Environmental and human health benefits;

(ii) Economic and social impacts;

(iii) Feasibility;

(iv) Availability and effectiveness of safer substitutes for uses of the chemical; and

(v) Consistency with existing federal and state regulatory requirements.

(4) The department must include in the chemical action plan a summary of any dissenting views held by external advisory committee members regarding the recommendations contained in the plan.

(5) The department must identify the sources of information it relied upon in completing a chemical action plan under this section, including peer-reviewed science.

NEW SECTION. Sec. 5. (1)(a) Consistent with a recommendation in a chemical action plan, the department is authorized to require manufacturers, by order, to conduct alternatives assessments, as detailed in this section. The department may not require manufacturers to complete an alternatives assessment for a greater breadth of uses or products, nor require alternatives assessments to be completed by a greater number of manufacturers, than is necessary to address significant sources of environmental or public health exposures to the chemical.

(b) The scope of an alternatives assessment must be:

(i) A single type of use of a chemical in a specific type of manufacturing process; or

(ii) The inclusion of a chemical in a specific type of product.

(2)(a) If ordered by the department, a manufacturer of a product that contains a chemical for which a chemical action plan has been completed under section 4 of this act or under chapter 173-333 WAC must submit an alternatives assessment to the department for each use of the chemical specified by the department.

(b) The manufacturer must submit the alternatives assessment to the department within one year of receipt of the department's order; however, the department may grant an extension on a case-by-case basis for good cause if the manufacturer shows that additional time is necessary to complete an alternatives assessment or would substantially improve the quality of the alternatives assessment. Multiple businesses, or a business association, may collaborate and submit a single alternatives assessment on a chemical found in similar products.

(c) In lieu of an alternatives assessment, a manufacturer may submit a certificate of compliance, as described in (d) of this subsection, if:

(i) The manufacturer has ceased using the chemical for which it would be required to do an alternatives assessment; or

(ii) The manufacturer can demonstrate its plans to phase out the use of the chemical within a time frame that is reasonable based on the manufacturing process used to produce the product and the use of the product.

(d) A certificate of compliance must include the following:

(i) Chemical names and chemical abstracts service registry numbers for all chemicals that currently contribute to the specific function previously served by the prohibited chemical;

(ii) How the manufacturer is meeting the function of the prohibited chemical with a safer alternative; and

(iii) The signature of an authorized official of the manufacturer.

(3) If the department determines that a submitted alternatives assessment does not meet the definition or required objectives of an alternatives assessment, or the department does not identify a manufacturer that may be required to submit an alternatives assessment, the department may contract with an independent scientific organization to conduct an independent alternatives assessment in consultation with the chemical action plan advisory committee. Any alternatives assessment conducted by the independent contractor must include a process to involve interested parties.

(4) The department may rely on existing information indicating that a safer alternative for a chemical exists if that information is equivalent to an alternatives assessment.

NEW SECTION. Sec. 6. (1)(a) The department, in consultation with the department of health, shall prepare a summary report of all reviewed alternatives assessments and other relevant information assembled under section 5 of this act. The summary report must include a determination of whether a safer alternative exists and identify unsuitable alternatives.

(b) In making its determination, the department shall evaluate whether the alternatives assessment submitted by manufacturers:

(i) Follows the guidelines on alternatives assessment issued by the interstate chemicals clearinghouse, the national academy of sciences, or equivalent methodology;

(ii) Identifies safer alternatives as defined in section 1 of this act; and

(iii) Identifies unsuitable alternatives as defined in section 1 of this act.

(2) If the department determines that a safer alternative exists, based on a completed alternatives assessment or equivalent information, the department must submit a recommendation to prohibit specific uses of the chemical, in the form of draft legislation, to the appropriate committees of the house of representatives and senate.

(3) If the department determines that a safer alternative does not exist, then the department may reevaluate information on the availability of safer alternatives not more often than once every five years.

NEW SECTION. Sec. 7. (1) A manufacturer violating a requirement of this chapter, a rule adopted under this chapter, or an order issued under 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 who are repeat violators are subject to a civil penalty not to exceed ten thousand dollars for each repeat offense.

(2) Any penalty provided for in this section, and any order issued by the department under this chapter, maybe appealed to the pollution control hearings board.

(3) All penalties collected under this chapter shall be deposited in the state toxics control account created in RCW 70.105D.070.

NEW SECTION. Sec. 8. Manufacturers submitting information or records to the department may request that the information or records be made available only for the confidential use of the director, the department, or the appropriate division of the department. The director shall give consideration to the request and if such action would not be detrimental to the public interest and is otherwise within accord with the policies and purposes of chapter 43.21A RCW, the director must grant the request for the information to remain confidential as authorized in RCW 43.21A.160. Under the procedures established under RCW 43.21A.160, the department must keep confidential any records furnished by a manufacturer under this chapter that relate to proprietary manufacturing processes or chemical formulations used in products or processes.

NEW SECTION. Sec. 9. The department may adopt rules as necessary for the purpose of implementing, administering, and enforcing this chapter.

NEW SECTION. Sec. 10. A new section is added to chapter 39.26 RCW to read as follows:

(1) The department shall establish purchasing and procurement policies that provide a preference for products and products in packaging that do not contain:

(a) Persistent, bioaccumulative, and toxic chemicals as defined in chapter 173-333 WAC as of the effective date of this section; and

(b) Chemicals that have been addressed by a completed chemical action plan that has included a recommendation that the state adopt a purchasing and procurement policy for products and products in packaging that do not contain the chemical.

(2) No agency may knowingly purchase products or products in packaging containing chemicals identified in subsection (1) of this section unless there is no cost-effective and technologically feasible alternative. When all available products contain a chemical identified in subsection (1) of this section, a preference must be given to alternative products that contain lesser amounts of chemicals identified in subsection (1) of this section.

(3) Nothing in this section requires the department or any other state agency to breach an existing contract or dispose of stock that has been ordered or is in the possession of the department or other state agency as of the effective date of this section.

(4) This section does not require the department or any other agency to test every product procured.

(5) The department or any other agency may request suppliers of products to provide testing data from an accredited laboratory or testing facility documenting levels of a chemical identified in subsection (1) of this section in products or product packaging. Requested or voluntarily received testing data from businesses, manufacturers, organizations, and individuals must be submitted for review to the department of ecology.

Sec. 11. RCW 43.21B.110 and 2013 c 291 s 33 are each amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, local health departments, the department of natural resources, the department of fish and wildlife, the parks and recreation commission, and authorized public entities described in chapter 79.100 RCW:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

(d) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

(e) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(f) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(g) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

(h) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

(i) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(j) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).

(k) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.

(l) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW.

(m) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.

(n) Decisions of an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable by the hearings board under RCW 79.100.120.

(o) Decisions regarding a restriction, order, or penalty issued under chapter 70.--- RCW (the new chapter created in section 14 of this act).

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

Sec. 12. RCW 43.21B.110 and 2013 c 291 s 34 are each amended to read as follows:

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

(c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

(g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

(h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(i) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).

(j) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.

(k) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW.

(l) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.

(m) Decisions of an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable by the hearings board under RCW 79.100.120.

(n) Decisions regarding a restriction, order, or penalty issued under chapter 70.--- RCW (the new chapter created in section 14 of this act).

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

NEW SECTION. Sec. 13. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2015, in the omnibus appropriations act, this act is null and void.

NEW SECTION. Sec. 14. Sections 1 through 9 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 15. A new section is added to chapter 43.131 RCW to read as follows:

The authority of the department of ecology to do the following under the authority of chapter 70.--- RCW (the new chapter created in section 14 of this act) expires June 30, 2025: Require manufacturers to provide information on chemicals and conduct alternatives assessments; prepare summary reports on alternatives assessments; prohibit the use of chemicals and the sale, offer for sale, or distribution of a product containing a prohibited chemical; and assess penalties.

NEW SECTION. Sec. 16. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective June 30, 2026:

(1) Section 1 of this act;

(2) Section 2 of this act;

(3) Section 3 of this act;

(4) Section 4 of this act;

(5) Section 5 of this act;

(6) Section 6 of this act;

(7) Section 7 of this act;

(8) Section 8 of this act; and

(9) Section 9 of this act.

NEW SECTION. Sec. 17. This act may be known and cited as the toxics reduction act.

NEW SECTION. Sec. 18. Section 11 of this act expires June 30, 2019.

NEW SECTION. Sec. 19. Section 12 of this act takes effect June 30, 2019.

NEW SECTION. Sec. 20. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

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