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BILL NUMBER:S3311B

TITLE OF BILL: An act to amend the environmental conservation law, in relation to restricting the use of certain ethers in certain products

PURPOSE: To protect the environment and public health by prohibiting the manufacture, process or distribution of the brominated flame retardantdecabrominated diphenyl ether.

SUMMARY OF SPECIFIC PROVISIONS: Section 37-0101 of the environmental conservation law is amended by adding two new subdivisions, 7 and 8, which define "decabrominateddiphenyl ether" and "covered electronic device."

The environmental conservation law is amended by adding a new Section 37-0112 with subdivision 1 setting forth the legislative intent. Subdivision 2 sets forth the prohibition that, after July 1, 2013 a person may not manufacture, process, or distribute certain products if they contain commercial decabrominateddiphenyl ether.

Subdivisions 3 and 6 contain exemptions to the dccahrominateddiphenyl ether prohibition. Subdivision 4 allows retailers in possession of products with c1ecabrominateddiphenyl ether on July 1, 2013 to exhaust their stock through sales to the public. Subdivision 5 provides for the ongoing review of the availability of alternatives to dccahrominateddiphenyl ether. Subdivision 7 allows the commissioner of the DEC to establish a "PBDE-Free" labeling program.

Subdivision 8 sets forth a fee scheme and subdivision 9 establishes penalties for violations of this section.

JUSTIFICATION: Chapter 387 of 2004 prohibited the manufacture, process, or distribution of two forms of brominated flame retardants known as pentahrominated diphenyl ether (pentaBDE) and octabrominated diphenyl ether (octaBDE) due to their prevalence in the environment and research suggesting that they cause permanent neurological and developmental damage including deficits in learning, memory and heating, changes in behavior, and delays in sensory-motor development.

A third form of PBDE, decabrominated diphenyl ether (decaBDE) , has been the most widely used of the three formulations, exceeding 60,000 metric tons worldwide with 40% of the use occurring here in North America. It has widespread persistence in the environment and our homes, accumulating in dust, food, and our bodies, as shown in samples of blood and breast milk. DecaBDE has shown to pose the same public health dangers as its banned counterparts. DecaBDE also breaks down, either by natural environmental processes or when metabolized, into PBDE congeners that are predominantly found in the now prohibited pentaBDE and octaBDE.

 PRIOR LEGISLATIVE HISTORY: S.8215 of 2006 S.5244 of 2007-08 S.1119 of 2009-2010

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This bill shall take effect July 1, 2013.

Text

STATE OF NEW YORK
________________________________________________________________________

3311--B

2011-2012 Regular Sessions

IN SENATE

February 16, 2011
___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and  recommitted  to  said  committee  --  committee  discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  restricting the use of certain ethers in certain products

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  37-0101 of the environmental conservation law is
amended by adding two new subdivisions 7 and 8 to read as follows:
  7. "COVERED ELECTRONIC DEVICE" MEANS A DESKTOP OR  PERSONAL  COMPUTER,
COMPUTER  MONITOR,  PORTABLE COMPUTER, CATHODE RAY TUBE BASED TELEVISION
OR A TELEVISION THAT IS NOT CATHODE RAY TUBE BASED.
  8. "DECABROMODIPHENYL ETHER" MEANS THE CHEMICAL MIXTURE  PREDOMINATELY
COMPRISED  OF DECABROMODIPHENYL ETHER, AND INCLUDING ASSOCIATED POLYBRO-
MINATED DIPHENYL ETHER IMPURITIES NOT INTENTIONALLY ADDED.
  S 2. The environmental conservation law is amended  by  adding  a  new
section 37-0112 to read as follows:
S 37-0112. RESTRICTION  OF  DECABROMODIPHENYL  ETHER  IN ELECTRONICS AND
             TEXTILES.
  1. LEGISLATIVE INTENT. THE LEGISLATURE FINDS AND DECLARES ALL  OF  THE
FOLLOWING:  POLYBROMINATED DIPHENYL ETHERS (PBDES) HAVE BEEN USED EXTEN-
SIVELY 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07807-03-1
S. 3311--B                          2

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.
  2.  PROHIBITION.  EXCEPT  AS  PROVIDED  IN  SUBDIVISION  THREE OF THIS
SECTION, ON AND AFTER JULY FIRST, TWO THOUSAND THIRTEEN,  A  PERSON  MAY
NOT MANUFACTURE, PROCESS, OR DISTRIBUTE IN COMMERCE ANY OF THE FOLLOWING
PRODUCTS IF THEY CONTAIN MORE THAN ONE-TENTH OF ONE PERCENTUM OF COMMER-
CIAL DECABROMODIPHENYL ETHER OF MASS:
  A. COVERED ELECTRONIC DEVICES;
  B. UPHOLSTERED FURNITURE OR TEXTILES INTENDED FOR INDOOR USE IN A HOME
OR OTHER RESIDENTIAL OCCUPANCY; OR
  C. MATTRESSES AND MATTRESS PADS.
  3.  EXEMPTION. THE FOLLOWING PRODUCTS CONTAINING POLYBROMINATED DIPHE-
NYL ETHERS ARE EXEMPT FROM THE PROVISIONS OF  SUBDIVISION  TWO  OF  THIS
SECTION:
  A.  ANY  USED  TRANSPORTATION  VEHICLE WITH COMPONENT PARTS CONTAINING
POLYBROMINATED DIPHENYL ETHERS;
  B. ANY USED TRANSPORTATION VEHICLE PARTS OR NEW TRANSPORTATION VEHICLE
PARTS MANUFACTURED BEFORE JANUARY FIRST, TWO THOUSAND TWELVE;
  C. EQUIPMENT USED PRIMARILY FOR MILITARY  OR  FEDERALLY  FUNDED  SPACE
PROGRAM APPLICATIONS. THIS EXEMPTION DOES NOT COVER CONSUMER-BASED GOODS
WITH BROAD APPLICABILITY;
  D.  ANY  USED  PRODUCT  SOLD OR DISTRIBUTED BY A BUSINESS, CHARITY, OR
PRIVATE PARTY; AND
  E. MEDICAL DEVICES.
  4. RETAILERS IN POSSESSION.    IN-STATE  RETAILERS  IN  POSSESSION  OF
PRODUCTS  ON JULY FIRST, TWO THOUSAND THIRTEEN, THAT ARE BANNED FOR SALE
UNDER SUBDIVISION TWO OF THIS SECTION MAY EXHAUST  THEIR  STOCK  THROUGH
SALES  TO THE PUBLIC. NOTHING IN THIS SECTION SHALL RESTRICT THE ABILITY
OF A MANUFACTURER, IMPORTER, OR DISTRIBUTOR FROM  TRANSPORTING  PRODUCTS
CONTAINING POLYBROMINATED DIPHENYL ETHERS THROUGHOUT THE STATE, OR STOR-
ING SUCH PRODUCTS IN THE STATE FOR LATER DISTRIBUTION OUTSIDE THE STATE.
  5. ONGOING REVIEW OF AVAILABILITY OF ALTERNATIVES TO DECABROMODIPHENYL
ETHER.  AT  LEAST EVERY TWO YEARS, THE COMMISSIONER AND THE COMMISSIONER
OF HEALTH SHALL  REVIEW  USES  OF  COMMERCIAL  DECABROMODIPHENYL  ETHER,
AVAILABILITY  OF TECHNICALLY FEASIBLE ALTERNATIVES, AND ANY NEW EVIDENCE
REGARDING THE POTENTIAL HARM TO PUBLIC HEALTH AND THE ENVIRONMENT  POSED
BY  COMMERCIAL  DECABROMODIPHENYL  ETHER.  SUCH COMMISSIONERS SHALL MAKE
RECOMMENDATIONS TO THE LEGISLATURE ON ADDITIONAL BANS  AND  RESTRICTIONS
TO  REDUCE  AND  PHASE  OUT  THE  MANUFACTURE,  SALE, OR DISTRIBUTION OF
NONCOMBUSTIBLE PRODUCTS CONTAINING COMMERCIAL  DECABROMODIPHENYL  ETHER.
THE COMMISSIONERS SHALL REPORT THEIR FINDINGS AND RECOMMENDATIONS TO THE
APPROPRIATE  COMMITTEES  OF THE LEGISLATURE NO LATER THAN JANUARY FIRST,
TWO THOUSAND FOURTEEN, AND EVERY TWO YEARS AFTER SUCH DATE.
  A. THE COMMISSIONER IS AUTHORIZED TO  PARTICIPATE  IN  A  REGIONAL  OR
NATIONAL MULTISTATE CLEARINGHOUSE TO ASSIST IN CARRYING OUT THE REQUIRE-
MENTS  OF  THIS  SECTION.  THE  CLEARINGHOUSE  IS AUTHORIZED TO MAINTAIN
INFORMATION ON BEHALF OF NEW YORK, INCLUDING, BUT NOT LIMITED TO:
  (1) A LIST OF ALL PRODUCTS CONTAINING POLYBROMINATED DIPHENYL  ETHERS;
AND
  (2) INFORMATION ON ALL EXEMPTIONS GRANTED BY THE STATE.
  B.  BY  JULY  FIRST,  TWO  THOUSAND  THIRTEEN, THE COMMISSIONER OF THE
OFFICE OF GENERAL SERVICES SHALL GIVE PRIORITY  AND  PREFERENCE  TO  THE
PURCHASE  OF EQUIPMENT, SUPPLIES, AND OTHER PRODUCTS THAT DO NOT CONTAIN
DECABROMODIPHENYL ETHERS.
S. 3311--B                          3

  6. ADDITIONAL EXEMPTIONS. IN ADDITION TO THE SPECIFIC EXEMPTIONS UNDER
SUBDIVISION THREE OF THIS SECTION, A MANUFACTURER OR USER OF  A  PRODUCT
PROHIBITED  FROM  MANUFACTURE, SALE, OR DISTRIBUTION UNDER SUCH SUBDIVI-
SION MAY APPLY FOR AN EXEMPTION FOR A SPECIFIC USE OF  COMMERCIAL  DECA-
BROMODIPHENYL  ETHER BY FILING A WRITTEN PETITION WITH THE COMMISSIONER.
THE COMMISSIONER MAY GRANT AN EXEMPTION FOR A TERM  NOT  TO  EXCEED  TWO
YEARS.  THE EXEMPTION SHALL BE RENEWABLE UPON WRITTEN APPLICATION IF THE
SPECIFIC USE OF COMMERCIAL DECABROMODIPHENYL ETHER CONTINUES TO MEET THE
CRITERIA OF THIS SECTION AND THE MANUFACTURER OR  OTHER  PERSONS  COMPLY
WITH THE CONDITIONS OF ITS ORIGINAL APPROVAL. THE COMMISSIONER MAY GRANT
AN  EXEMPTION  FOR A SPECIFIC USE OF COMMERCIAL DECABROMODIPHENYL ETHER,
WITH OR WITHOUT CONDITIONS, UPON FINDING THAT THE APPLICANT  HAS  DEMON-
STRATED:
  A.  A  TECHNICALLY FEASIBLE ALTERNATIVE IS NOT AVAILABLE AT REASONABLE
COST; OR
  B. 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 COMMERCIAL DECABROMODIPHENYL ETHER.
  7. LABELING AND POSITIVE RECOGNITION. THE COMMISSIONER MAY ESTABLISH A
"PBDE-FREE" PRODUCT LABELING PROGRAM FOR PRODUCTS THAT  DO  NOT  CONTAIN
POLYBROMINATED  DIPHENYL ETHERS. THE COMMISSIONER MAY ESTABLISH PARTNER-
SHIPS WITH MANUFACTURERS OF POLYBROMINATED DIPHENYL  ETHERS  TO  ENHANCE
THE  MARKET  FOR  PRODUCTS  THAT  DO NOT CONTAIN POLYBROMINATED DIPHENYL
ETHERS AND REDUCE THE USE OF POLYBROMINATED DIPHENYL ETHERS IN PRODUCTS.
THE COMMISSIONER MAY DEVELOP AN AWARDS PROGRAM TO RECOGNIZE  THE  ACCOM-
PLISHMENTS  OF MANUFACTURERS WHO EXCEED THE REQUIREMENTS OF THIS SECTION
AND WHO EXCEL AT REDUCING  OR  ELIMINATING  DECABROMODIPHENYL  ETHER  IN
PRODUCTS AND THE ENVIRONMENT.
  8.  FEES FOR EXEMPTION APPLICANTS. THE COMMISSIONER SHALL ESTABLISH AN
APPLICATION FEE FOR AN EXEMPTION UNDER THIS SECTION. FEES SHALL BE  USED
TO IMPLEMENT AND ENFORCE THE PROVISIONS OF THIS SECTION.
  9. PENALTIES. A MANUFACTURER WHO VIOLATES THIS SECTION IS SUBJECT TO A
CIVIL  PENALTY  NOT TO EXCEED ONE THOUSAND DOLLARS FOR EACH VIOLATION IN
THE CASE OF A FIRST OFFENSE. A MANUFACTURER IS SUBJECT TO A CIVIL PENAL-
TY NOT TO EXCEED FIVE THOUSAND DOLLARS FOR EACH REPEAT  OFFENSE.  PENAL-
TIES  COLLECTED  UNDER THIS SECTION SHALL BE USED BY THE COMMISSIONER TO
IMPLEMENT AND ENFORCE THIS SECTION.
  S 3. This act shall take effect July 1, 2013.