Background:

Children’s Safe Products Act.

In 2008 the Legislature passed the Children's Safe Products Act (CSPA), which limits certain chemicals in children's products and requires the Department of Ecology (DOE), in consultation with the Department of Health, to identify chemicals of high concern for children (CHCC) using several criteria. The CSPA also requires manufacturers of children's products containing these identified chemicals to annually report product information to the DOE.

The CSPA requires the DOE to develop a CHCC list, and in 2011 the DOE adopted rules that identified 66 chemicals for inclusion on the CHCC list [Washington Administrative Code 173-334-130]. The DOE rules establish procedures for manufacturers' notification of DOE when their products contain chemicals on the CHCC list, and also set the DOE's enforcement authority.

Tris.

The chemicals TCEP (Tris(2-chloroethyl) phosphate) and TDCPP (Tris(1, 3-dichloro-2-propyl) phosphate), known collectively as Tris, may be added to plastics, foams, and textiles as flame retardants. Tris has been used as a replacement for certain Polybrominated Diphenyl Ether (PBDE) flame retardants. The DOE included TCEP on the initial 66-chemical CHCC list established pursuant to the CSPA, and the DOE is initiating a new rule-making to also add TDCPP to the list.

Polybrominated Diphenyl Ethers.

The PBDEs, a category of flame retardant chemicals, are banned from inclusion in many products. The DOE's enforcement authority for the PBDE restriction includes the power to require a certificate of compliance from manufacturers, and to issue penalties of up to $1,000 per violation for first time violators and up to $5,000 for repeat violators.

Fire Safety Standards.

In general, fire safety standards for consumer products are federally established by the U.S. Consumer Product Safety Commission (CPSC). The federal Flammable Fabrics Act grants regulatory authority to the CPSC to establish mandatory flammability standards for many types of children's products and furniture.

GreenScreen.

GreenScreen is a tool developed by Clean Production Action, a nonprofit organization, which can be used to compare chemicals and their alternatives by scoring the chemicals on a variety of hazard-related criteria. Based on the screening assessment of a chemical's hazardous characteristics, a chemical can be given a GreenScreen "benchmark" score on a scale of 1 to 4, with "Benchmark 1" comprising the category of chemicals with the greatest potential hazards.

Relevant Department of Ecology Administrative Procedures.

The CSPA statute is silent on methods by which chemicals may be added to or removed from the CHCC list; however, the DOE's administrative rules implementing the CSPA allow the addition or removal of a chemical from the CHCC list upon the DOE's adoption of an additional rule to add or remove the particular chemical from the list.

In general, entities which provide certain types of information to the DOE may designate it as confidential. If the DOE agrees that the entity's designation is appropriate, it may withhold that information from public disclosure.

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Summary of Substitute Bill:

Prohibitions.

The manufacture, sale, or distribution of residential upholstered furniture or children's products containing Tris in any product component in amounts greater than 50 parts per million (ppm) is prohibited as of July 1, 2014. Also banned, as of July 1, 2015, is the sale, manufacture, or distribution of children's products or residential upholstered furniture containing any flame retardant identified as a high priority CHCC in amounts greater than 50 ppm.

An exception to the sales ban on CHCC and Tris is made for sales by nonprofit organizations, as well as for sales by people who are not engaged in the business of selling furniture or children's products. Retailers who unknowingly sell products containing restricted flame retardants are shielded from liability.

Manufacturer-Specific Exemptions.

The DOE may, in certain circumstances, grant manufacturer-specific exemptions allowing flame retardants on the CHCC list to be temporarily included in children's products or residential upholstered furniture. The PBDE and Tris, however, are universally banned from inclusion in children's products and residential upholstered furniture, and may not receive manufacturer-specific exemptions.

In order for a manufacturer to receive an exemption to include a flame retardant on the CHCC list, the manufacturer must demonstrate that there is not a technically feasible, safer alternative to the chemical. Prohibited from serving as technically feasible, safer alternatives are chemicals which receive the most-hazardous "Benchmark 1" designation under GreenScreen, and chemicals about which there is insufficient information to use GreenScreen. In order to prove a lack of technically feasible, safer alternatives to a flame retardant, the manufacturer must include the following information in a request for exemption to the DOE:

certain information on the CHCC-listed chemical and any nonchemical alternatives;
a description explaining the manufacturer's rationale for using the CHCC-listed chemical;
a description of why there is not a technically feasible, safer alternative that meets fire safety standards; and
an evaluation of alternatives using GreenScreen methodology, for which the DOE may provide technical assistance to manufacturers if requested.

Temporary exemptions granted by the DOE to a manufacturer may last no more than two years.

Department of Ecology Enforcement and Administrative Procedures.

The DOE may enforce the ban on Tris and CHCC-listed chemicals using the same enforcement mechanisms created by the PBDE law, including the issuance of penalties for violations. Manufacturers of products containing Tris or CHCC-listed chemicals must notify their products' retailers 90 days before the restrictions take effect.

Beginning on January 1, 2015, the DOE may request manufacturers to submit certificates of compliance indicating the names of any flame retardant chemicals used in their products, and the basis for any exemption from the prohibition on the use of flame retardants on the CHCC list. Manufacturers may mark as confidential portions of the information they submit to the DOE, and the DOE may withhold that information from public disclosure.

The DOE is given authority to add or remove chemicals on the CHCC list by rule.

Staff Summary of Public Testimony:

(In support) Tris is widespread in furniture and children's products, and people have a wide exposure in their homes to the hazardous chemicals that this bill would restrict. Children are particularly at risk from the health effects of flame retardants because they tend to put things in their mouths, and spend time on the floor where toxin-containing dust from furniture and toys accumulates. Firefighters, who face elevated cancer risks, are also vulnerable from the exposure to these substances since chemicals intended as fire retardants are released when burned. The burden of proof should be on manufacturers to prove their chemicals are safe. This bill improves public health without compromising public safety, and is reasonable because it allows exemptions for businesses that don't have alternatives to using the chemicals. Manufacturers' use of these chemicals is not needed, since there are alternative means of achieving equally successful fire prevention and suppression. Alternative assessments are needed in order to prevent toxic chemicals from being replaced by other chemicals that are just as hazardous as the ones phased out by legislative action. Many private companies and the DOE have successfully used GreenScreen to compare chemical alternatives.

(In support with concerns) The chemicals that this bill would ban are some of the most frequently-found toxic chemicals that have migrated into the environment. There are functional alternatives for inhibiting fires other than these chemicals.

(With concerns) We would not be using flame retardants if safety did not require us to do so. We need clear guidance on what chemicals we can use as flame retardants in car components.

(Opposed) This bill would delegate too much authority to the DOE, and sets a precedent for allowing the DOE to regulate without concern for the risk or exposure attributable to a substance. A national standard would be better than a state standard, since it is hard for manufacturers to deal with state-by-state regulations. Industry needs predictability as to what chemicals it can use. The Legislature should let the process it established in the CSPA play itself out, and not interfere by amending the law already. The process by which a chemical is added to the CSPA-established list is sufficient to catch people's attention about the danger of the chemical, and a ban of all of those chemicals is not necessary. There are better ways of conducting alternatives assessments than GreenScreen, which is a proprietary tool which must be licensed and paid for, and which does not necessarily lead to accurate or sufficient results.

Persons Testifying: (In support) Senator Nelson; Mark Miloscia, Washington Catholic Conference; Erika Schroeder, Washington Toxics Coalition; Geoff Simpson, Washington State Council of Firefighters; Evan Hirsch; Barbara Morrissey, Department of Health; Clifford Traisman, Washington Conservation Voters and Washington Environmental Council; Karen Bowman, Washington State Nursing Association; Elizabeth Davis, League of Women Voters of Washington; Jessie Dye, Earth Ministry; and Mike Brown, Washington Fire Chiefs Association.

(In support with concerns) Carol Kraege, Department of Ecology.

(With concerns) Ryan Spiller, Auto Alliance.

(Opposed) Mark Johnson, Washington Retail Association; Brandon Housekeeper, Association of Washington Business; Jennifer Gibbons, Toy Industry Association; and Mark Greenberg, American Chemistry Council.