BILL REQ. #:  S-0886.2 

READ FIRST TIME 01/22/07.   

     AN ACT Relating to phasing out the use of polybrominated diphenyl ethers; 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   Polybrominated diphenyl ethers (PBDEs) have been used extensively as flame retardants in a large number of common household products for the past thirty years. Studies on animals show that PBDEs can impact the developing brain, affecting behavior and learning after birth and into adulthood, making exposure to fetuses and children a particular concern. Levels of PBDEs are increasing in people, and in the environment, particularly in North America. Because people can be exposed to these chemicals through house dust and indoor air as well as through food, it is important to phase out their use in common household products, provided that effective flame retardants that are safer and technically feasible are available at a reasonable cost.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Comestible" means edible.
     (2) "Commercial decabromo diphenyl ether" or "commercial deca-bde" means the chemical mixture of decabromo diphenyl ether, including associated polybrominated diphenyl ether impurities not intentionally added.
     (3) "Department" means the department of ecology.
     (4) "Electronic enclosure" means the plastic housing that encloses the components of electronic products, including but not limited to televisions and computers.
     (5) "Manufacturer" means 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 who:
     (a) Adds a private label brand or cobrands a product for sale; or
     (b) Assembles components to create a single noncomestible product based on an individual consumer preference.
     (6) "Mattress" has the same meaning as defined by the United States consumer product safety commission in 16 C.F.R. Part 1633 (2007) and includes mattress pads, mattress sets, box springs, futons, crib mattresses, and youth mattresses.
     (7) "Medical device" means an instrument, machine, implant, or diagnostic test used to help diagnose a disease or other condition or to cure, treat, or prevent disease.
     (8) "Polybrominated diphenyl ethers" or "PBDEs" 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 pentabromo diphenyl ether (penta-bde), octabromo diphenyl ether (octa-bde), and decabromo diphenyl ether (deca-bde).
     (9) "Residential upholstered furniture" means residential seating products intended for indoor use in a home or other dwelling intended for residential occupancy that consists in whole or in part of resilient cushioning materials enclosed within a covering consisting of fabric or related materials, if the resilient cushioning materials are sold with the item of upholstered furniture and the upholstered furniture is constructed with a contiguous upholstered seat and back that may include arms.
     (10) "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.
     (11) "Technically feasible" means an alternative that is available at a cost and in sufficient quantity to permit the manufacturer to produce an economically viable product.
     (12) "Transportation vehicle" means a 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.

NEW SECTION.  Sec. 3   This chapter does not apply to any of the following:
     (1) Products containing deca-bde except as provided in sections 4(2) and 5 of this act;
     (2) The sale or distribution of any used transportation vehicle manufactured before January 1, 2008, with component parts containing PBDEs;
     (3) The sale or distribution of any used transportation vehicle parts or new transportation vehicle parts manufactured before January 1, 2008, that contain PBDEs;
     (4) The manufacture, sale, repair, distribution, maintenance, refurbishment, or modification of equipment containing PBDEs and used primarily for military or federally funded space program applications. The exemption in this subsection (4) does not cover consumer-based goods with broad applicability;
     (5) Federal aviation administration fire worthiness requirements and recommendations;
     (6) The manufacture, sale, repair, distribution, maintenance, refurbishment, or modification of any new raw material or component part used in a transportation vehicle with component parts, including original spare parts, containing deca-bde;
     (7) The use of commercial deca-bde in the maintenance, refurbishment, or modification of transportation equipment;
     (8) The sale or distribution of any product containing PBDEs that has been previously owned, purchased, or sold in commerce, provided it was manufactured before the effective date of the ban;
     (9) The sale or purchase of any previously owned product containing PBDEs made in casual or isolated sales as defined in RCW 82.04.040 and to sales by nonprofit organizations;
     (10) The manufacture, sale, or distribution of any new product or product component consisting of recycled or used materials containing deca-bde;
     (11) The manufacture, sale, or distribution of new carpet cushion made from recycled foam containing less than one-tenth of one percent penta-bde; and
     (12) Medical devices.

NEW SECTION.  Sec. 4   (1) Except as provided in sections 3 and 12 of this act, after January 1, 2008, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state noncomestible products containing PDBEs.
     (2) Except as provided in sections 3 and 12 of this act, after January 1, 2008, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state, mattresses containing deca-bde.

NEW SECTION.  Sec. 5   Except as provided in sections 3, 7, and 12 of this act, after January 1, 2011, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute, for use in this state, residential upholstered furniture that contains commercial deca-bde or any television or computer that has an electronic enclosure that contains commercial deca-bde.

NEW SECTION.  Sec. 6   (1) No ban on deca-bde in televisions, computers, or upholstered furniture may go into effect until the department, the department of health, and the fire safety committee determine that a safer and technically feasible alternative that meets applicable fire safety standards is available.
     (2) By December 15, 2008, the department and the department of health shall review risk assessments, scientific studies, and other relevant findings regarding alternatives to the use of commercial deca-bde in residential upholstered furniture, televisions, and computers.
     (3)(a) If the department and the department of health jointly find that safer and technically feasible alternatives are available for any of these uses, the department shall convene a fire safety committee to determine if the identified alternatives meet applicable fire safety standards.
     (b) A representative from the department shall chair the fire safety committee and serve as an ex officio nonvoting member.
     (c) A majority vote of the fire safety committee members constitutes a finding that an alternative meets applicable fire safety standards.
     (d) The fire safety committee consists of five voting members, appointed by the governor, from each of the following five firefighting organizations:
     (i) The office of the state fire marshal;
     (ii) The Washington fire chiefs;
     (iii) The Washington fire commissioners association;
     (iv) The Washington state council of firefighters; and
     (v) The Washington state firefighters association.
     (4) If the fire safety committee determines that an alternative identified under subsection (3)(a) of this section meets applicable fire safety standards, the effective date of the ban is the date established in section 5 of this act.
     (5) If the fire safety committee determines that no alternative identified under subsection (3)(a) of this section meets applicable fire safety standards, the ban established in section 5 of this act does not take effect and the department shall proceed as required in section 7 of this act.
     (6) The department and the department of health shall document their findings and the findings of the fire safety committee in a report to the legislature by December 15, 2008. The report must also include any additional evidence of the potential harm posed by deca-bde.

NEW SECTION.  Sec. 7   (1) If the department and the department of health jointly find, by December 15, 2008, that an effective flame retardant that is safer than commercial deca-bde and technically feasible for use in residential upholstered furniture, televisions, or computers is not available or if the fire safety committee finds that an alternative to commercial deca-bde does not meet applicable fire safety standards, the department shall by rule grant an exemption to allow for the manufacture, sale, or distribution of products prohibited from manufacture, sale, or distribution under section 5 of this act.
     (2) If the department grants an exemption under subsection (1) of this section, the department and the department of health shall evaluate the exemption annually. When an effective flame retardant that is safer and technically feasible becomes available, the department shall convene the fire safety committee to determine if the identified alternative meets applicable fire safety standards. If the fire safety committee makes such a finding, the agencies shall report these findings to the legislature by December 15th of the year in which the finding is made. The department shall subsequently rescind the exemption granted under subsection (1) of this section no earlier than two years after this report is submitted to the legislature.

NEW SECTION.  Sec. 8   The department and the department of health shall review risk assessments, scientific studies, and other relevant findings regarding alternatives to the use of commercial deca-bde in products not directly addressed in this chapter. If a flame retardant that is safer and technically feasible becomes available, the department shall convene the fire safety committee to determine if the identified alternative meets applicable fire safety standards. A report on findings of these assessments must be presented to the appropriate committees of the legislature by December 15th of the year in which the finding is made.

NEW SECTION.  Sec. 9   Nothing in this chapter restricts the ability of a manufacturer, importer, or distributor from transporting products containing PBDEs through the state, or storing the products in the state for later distribution outside the state.

NEW SECTION.  Sec. 10   A manufacturer of products containing PBDEs 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.

NEW SECTION.  Sec. 11   The department shall assist state agencies to give priority and preference to the purchase of equipment, supplies, and other products that do not contain PBDEs.

NEW SECTION.  Sec. 12   (1) Retailers who unknowingly sell products banned under section 4, 5, or 7 of this act are not liable under this chapter.
     (2) In-state retailers in possession of products on the date that restrictions on the sale of the products become effective under section 4, 5, or 7 of this act may exhaust their existing stock through sales to the public.
     (3) The department must assist in-state retailers in identifying potential products containing PBDEs.
     (4) If a retailer unknowingly possesses products that are banned for sale under section 4, 5, or 7 of this act and the manufacturer does not recall the products as required under section 13(2) of this act, 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 must rely 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 section 4, 5, or 7 of this act, the department shall 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 may 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 may be assessed under subsection (3) of this section.
     (2) A manufacturer that knowingly produces, sells, or distributes a product prohibited from manufacture, sale, or distribution in this state under this chapter shall recall the products and reimburse the retailer or any other purchaser for the product and any applicable shipping and handling for returning the products.
     (3) A manufacturer of products containing PBDEs 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.l05D.070.

NEW SECTION.  Sec. 14   The department may adopt rules to fully implement this chapter.

NEW SECTION.  Sec. 15   Sections 1 through 14 of this act constitute a new chapter in Title 70 RCW.