"NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "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.
     (2) "Department" means the department of ecology.
     (3) "Electronic enclosure" means the plastic housing that encloses the components of electronic products, including but not limited to televisions and computers.
     (4) "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. A manufacturer does not include a retailer:
     (a) Of a private label brand or cobranding; or
     (b) Who assembles components to create a single electronic product based on an individual consumer preference.
     (5) "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).
     (6) "Retailer" means a person who offers a product for sale at retail through any means including, but not limited to, remote offerings such as sales outlets, catalogs, or the internet, but does not include a sale that is a wholesale transaction with a distributor or a retailer. A retailer does not include a person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that both manufactures and sells a product at retail.
     (7) "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) "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.
     (9) "Used product" means any product that has been previously owned, purchased, or sold in commerce. "Used product" does not include any product manufactured after January 1, 2007.

NEW SECTION.  Sec. 2   (1) Except as provided in subsections (2) and (3) of this section and sections 3 and 4 of this act, after January 1, 2007, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state noncomestible products containing polybrominated diphenyl ethers.
     (2) Subsection (1) of this section does not apply to:
     (a) Products containing decabromodiphenylether except as provided in section 4 of this act;
     (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 before January 1, 2007, that contain polybrominated diphenyl ethers;
     (d) 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;
     (e) The sale or distribution by a business, charity, or private party of any used product containing polybrominated diphenyl ethers; or
     (f) Medical devices.
     (3) In-state retailers in possession of products on January 1, 2007, that are banned for sale under subsection (1) of this section may exhaust their stock through sales to the public.

NEW SECTION.  Sec. 3   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. Such uses may include the repair or replacement by a manufacturer or user of safety systems required by the federal aviation administration. 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:
     (1) A technically feasible alternative to the use of penta-bde or octa-bde is not available at reasonable cost; or
     (2) 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.

NEW SECTION.  Sec. 4   (1) Except as provided in subsection (3) of this section and section 5 of this act, after July 1, 2010, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state any television or computer that has an electronic enclosure that contains commercial decabromodiphenylether.
     (2) Except as provided in subsection (3) of this section and section 5 of this act, after July 1, 2012, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state any of the following products:
     (a) Upholstered furniture intended for indoor use in a home or other residential occupancy that contains commercial decabromodiphenylether; or
     (b) Mattresses and mattress pads that contain commercial decabromodiphenylether.
     (3) The following are exempt from subsections (1) and (2) of this section:
     (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 use of commercial decabromodiphenylether in the maintenance, refurbishment, or modification of transportation equipment; or
     (c) The manufacture, sale, or distribution of any new product or product component consisting of recycled or used materials containing commercial decabromodiphenylether.

NEW SECTION.  Sec. 5   If the department and the department of health, in consultation with the director of fire protection, find that a safer technically feasible alternative to the use of commercial decabromodiphenylether is not available at reasonable cost, the department and the department of health may jointly by rule grant an exemption to allow for the manufacture, sale, or distribution of products prohibited from manufacture, sale, or distribution under section 4 of this act between July 1, 2010, and July 1, 2012. The department and the department of health may jointly by rule renew the exemption for an additional period of two years if the department and the department of health find that a safer technically feasible alternative to the use of commercial decabromodiphenylether is not available at reasonable cost.

NEW SECTION.  Sec. 6   Before adoption of a final rule by the department and the department of health in section 5 of this act, the governor shall review the proposed rule to ensure that a safer technically feasible alternative to the use of commercial decabromodiphenylether is not available at reasonable cost. In reviewing the proposed rule, the governor shall consider the important balance between the needs for continuing the use of commercial decabromodiphenylether and protecting public health. Any final rule adopted under section 5 of this act by the departments requires the signature of the governor.

NEW SECTION.  Sec. 7   By December 15, 2008, the department, the director of fire protection, and the department of health must report to the appropriate committees of the legislature on the availability of safer, technically feasible alternatives for those products prohibited from the manufacture, sale, or distribution under section 4 of this act and any additional evidence of the potential harm posed by commercial decabromodiphenylether.

NEW SECTION.  Sec. 8   Nothing in this chapter 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. 9   After January 1, 2007, a manufacturer of products containing a polybrominated diphenyl ether that has been restricted under this chapter must notify persons that sell the manufacturer's products about this chapter.

NEW SECTION.  Sec. 10   (1) The department and the department of health must review additional uses of commercial decabromodiphenylether.
     (2) The department and the department of health must report their findings and recommendations to the appropriate committees of the legislature by December 15, 2007.

NEW SECTION.  Sec. 11   (1) By January 1, 2009, 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 equipment, supplies, and other products that do not contain polybrominated diphenyl ethers.
     (2) The department of general administration shall, by January 1, 2009, revise its rules, policies, and guidelines to implement this chapter.

NEW SECTION.  Sec. 12   (1) Retailers who unknowingly sell products banned under sections 2 and 4 of this act are not liable under this chapter.
     (2) In-state retailers in possession of products on January 1, 2010, that are banned for sale under section 4(1) of this act or are in possession of products on January 1, 2012, that are banned for sale under section 4(2) of this act may exhaust their stock through sales to the public.
     (3) The department must develop a program to assist in-state retailers in identifying potential products containing polybrominated diphenyl ethers in their inventory before the effective date of product bans under sections 2 and 4 of this act.
     (4) If a retailer unknowingly possesses products that are banned for sale under sections 2 and 4 of this act and the manufacturer does not recall the products, the retailer may exhaust its existing stock through sales to the public; however, no additional banned stock may be sold or offered for sale.

NEW SECTION.  Sec. 13   (1) Enforcement of this chapter shall rely heavily on notification and information exchange between the department and manufacturers. The department shall achieve compliance with this chapter using the following enforcement sequence:
     (a) Before the effective date of the product bans in sections 2 and 4 of this act, the department must prepare and distribute information to in-state manufacturers and out-of-state manufacturers, to the maximum extent practicable, to assist them in identifying products prohibited for manufacture, sale, or distribution under this chapter;
     (b) The department may request a certificate of compliance from a manufacturer. A certificate of compliance attests that a manufacturer's product or products meets the requirements of this chapter;
     (c) The department must issue a warning letter to a manufacturer that produces, sells, or distributes banned products in violation of this chapter. The department shall offer information or other appropriate assistance to the manufacturer in complying with this chapter. If after one year, compliance is not achieved, penalties must be assessed under subsection (3) of this section.
     (2) A manufacturer that produces, sells, or distributes a product prohibited from manufacture, sale, or distribution under this chapter shall recall such products and reimburse the retailer or any other purchaser for the product and any applicable postage and handling for returning the products.
     (3) 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. 14   Sections 1 through 13 of this act constitute a new chapter in Title 70 RCW."