Restricts the use of decabromodiphenyl ether in covered electronic devices, upholstered furniture or textiles intended for indoor use, mattresses and mattress pads; provides exemptions.
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.
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 ASEXPLANATION--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.