Bill S3628A-2011

Restricts the use of decabromodiphenyl ether in certain products

Restricts the use of decabromodiphenyl ether in certain products.

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  • Jan 23, 2012: PRINT NUMBER 3628A
  • Jan 23, 2012: AMEND AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
  • Jan 4, 2012: REFERRED TO ENVIRONMENTAL CONSERVATION
  • Feb 28, 2011: REFERRED TO ENVIRONMENTAL CONSERVATION

Memo

BILL NUMBER:S3628A

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

PURPOSE OR GENERAL IDEA OF BILL: To protect the environment and public health by prohibiting the manufacture, process or distribution of the brominated flame retardant decabrominated diphenyl ether (decaBDE).

SUMMARY OF SPECIFIC PROVISIONS: Section one of the bill defines "covered electronic device" and "Decabromodiphenyl ether." section two of the bill adds a new section 37-0113 to prohibit, after July 2, 2010, the manufacture, process or distribution of the following products containing commercial decaBDE:

* covered electronic devices;

* upholstered furniture or textiles for indoor residential use;

* mattresses and mattress pads

Exemptions would be provided for the following products:

* transportation vehicles

* military or federally funded space program equipment

* used products sold or distributed by a business, charity or private party;

* medical devices.

Section two would also require the Commissioner of the Department of Environmental conservation (DEC) and the Commissioner of Health to review the availability of alternatives to decaBDE and make recommendations to the Legislature no later than January 1, 2010. In addition, the DEC commissioner would be authorized to grant an exemption to the decaBDE prohibition upon a finding that there is no other technically feasible alternative or that the potential harm to public health and the environment posed by an alternative is greater than the potential, harm posed by decaBDE.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: This legislation adds subdivisions (7) and (8) to §37-0101 as well as a new §37-0115 to the Environmental Conservation Law.

JUSTIFICATION:

Chapter 387 of 2004 prohibited the manufacture, process, or distribution of two forms of brominated flame retardants known as pentabrominated 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 hearing, 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 percent 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 been shown to pose the same public health dangers as its banned counterparts. DecaBDE also breaks down, either by natural environmental processes or when metabilized, into PBDE congeners that are predominantly found in the now prohibited pentaBDE and octaBDE.

PRIOR LEGISLATIVE HISTORY: 2010: S.177-A Held in Environmental Conservation A.7977-A (Sweeney) - Passed Assembly.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

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


Text

STATE OF NEW YORK ________________________________________________________________________ 3628--A 2011-2012 Regular Sessions IN SENATE February 28, 2011 ___________
Introduced by Sens. ADAMS, AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conser- vation -- recommitted to the Committee on Environmental Conservation in accordance with Senate Rule 6, sec. 8 -- 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 37-0115 to read as follows: S 37-0115. 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
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 FOURTEEN, A PERSON MAY NOT MANUFACTURE, PROCESS, OR DISTRIBUTE IN COMMERCE ANY OF THE FOLLOWING PRODUCTS IF THEY CONTAIN COMMERCIAL DECABROMODIPHENYL ETHER: 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 THIRTEEN; 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 FOURTEEN 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 FOURTEEN, 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. 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. 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.

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