HF 3202

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/24/2022 05:53pm

A bill for an act
relating to public health; reducing public exposure to toxic chemicals in products;
requiring disclosure by manufacturers of products that contain chemicals of high
concern; providing for designation of priority chemicals and replacement with
safer alternatives; prohibiting certain sales; providing waiver process; requiring
reports; requiring rulemaking; amending Minnesota Statutes 2020, sections
116.9401; 116.9402; 116.9403; 116.9405; proposing coding for new law in
Minnesota Statutes, chapter 116.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2020, section 116.9401, is amended to read:

116.9401 DEFINITIONS.

(a) For the purposes of sections 116.9401 to deleted text begin 116.9407 deleted text end new text begin 116.9413 new text end , the following terms
have the meanings given them.

(b) "Agency" means the Pollution Control Agency.

(c) "Alternative" means a substitute process, product, material, chemical, strategy, or
combination of these that is technically feasible and serves a functionally equivalent purpose
to a new text begin priority new text end chemical in a deleted text begin children's deleted text end product.

(d) "Chemical" means a substance with a distinct molecular composition or a group of
structurally related substances and includes the breakdown products of the substance or
substances that form through decomposition, degradation, or metabolism.

(e) "Chemical of high concern" means a chemical identified on the basis of credible
scientific evidence by a state, federal, or international agency as being known or suspected
with a high degree of probability to:

(1) harm the normal development of a fetus or child or cause other developmental
toxicity;

(2) cause cancer, genetic damage, or reproductive harm;

(3) disrupt the endocrine or hormone system;

(4) damage the nervous system, immune system, or organs, or cause other systemic
toxicity;

(5) be persistent, bioaccumulative, and toxic; or

(6) be very persistent and very bioaccumulative.

deleted text begin (f) "Child" means a person under 12 years of age.
deleted text end

deleted text begin (g) "Children's product" means a consumer product intended for use by children, such
as baby products, toys, car seats, personal care products, and clothing.
deleted text end

deleted text begin (h) deleted text end new text begin (f) new text end "Commissioner" means the commissioner of the Pollution Control Agency.

deleted text begin (i) deleted text end new text begin (g) new text end "Department" means the Department of Health.

deleted text begin (j) deleted text end new text begin (h) new text end "Distributor" means a person who sells consumer products to retail establishments
on a wholesale basis.

deleted text begin (k) "Green chemistry" means an approach to designing and manufacturing products that
minimizes the use and generation of toxic substances.
deleted text end

deleted text begin (l) deleted text end new text begin (i) new text end "Manufacturer" means any person who manufactures a final consumer product
sold at retail or whose brand name is affixed to the consumer product. In the case of a
consumer product imported into the United States, manufacturer includes the importer or
domestic distributor of the consumer product if the person who manufactured or assembled
the consumer product or whose brand name is affixed to the consumer product does not
have a new text begin physical new text end presence in the United States.

deleted text begin (m) deleted text end new text begin (j) new text end "Priority chemical" means a chemical identified by the Department of Health as
a chemical of high concern that meets the criteria in section 116.9403.

deleted text begin (n) deleted text end new text begin (k) new text end "Safer alternative" means an alternative whose potential to harm human health
is less than that of the use of a priority chemical that it could replace new text begin in a product, as
determined by the department new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2020, section 116.9402, is amended to read:

116.9402 IDENTIFYING CHEMICALS OF HIGH CONCERN.

(a) By July 1, 2010, the department shall, after consultation with the agency, generate
a list of chemicals of high concern.

(b) The department must deleted text begin periodically deleted text end review and revise the list of chemicals of high
concern at least every three years. The department may add chemicals to the list if the
chemical meets one or more of the criteria in section 116.9401, paragraph (e).

(c) new text begin In reviewing potential chemicals of high concern, new text end the department deleted text begin shall deleted text end new text begin must new text end consider new text begin ,
among others, new text end chemicals listed deleted text begin as a suspected carcinogen, reproductive or developmental
toxicant, or as being persistent, bioaccumulative, and toxic, or very persistent and very
bioaccumulative by a state, federal, or international agency deleted text end new text begin by a state, federal, or international
agency as meeting one or more of the characteristics listed in section 116.9401, paragraph
(e), clauses (1) to (6) new text end . These agencies may include, but are not limited to, the California
Environmental Protection Agency, the Washington Department of Ecology, the United
States Department of Health, the United States Environmental Protection Agency, the United
Nation's World Health Organization, and European Parliament Annex XIV concerning the
Registration, Evaluation, Authorisation, and Restriction of Chemicals.

(d) The department may consider chemicals listed by another state as harmful to human
health or the environment for possible inclusion in the list of chemicals of high concern.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

Minnesota Statutes 2020, section 116.9403, is amended to read:

116.9403 IDENTIFYING PRIORITY CHEMICALS.

(a) The department, after consultation with the agency, may designate a chemical of
high concern as a priority chemical if the department finds that the chemical:

(1) has been identified as a high-production volume chemical by the United States
Environmental Protection Agency; and

(2) meets any of the following criteria:

(i) the chemical has been found through biomonitoring to be present in human blood,
including umbilical cord blood, breast milk, urine, or other bodily tissues or fluids;

(ii) the chemical has been found through sampling and analysis to be present in household
dust, indoor air, drinking water, or elsewhere in the home environment; or

(iii) the chemical has been found through monitoring to be present in fish, wildlife, or
the natural environment.

(b) deleted text begin By February 1, 2011, deleted text end The department shall publish a list of priority chemicals in the
State Register and on the department's Internet website and shall update the published list
whenever a new priority chemical is designated.

Sec. 4.

Minnesota Statutes 2020, section 116.9405, is amended to read:

116.9405 APPLICABILITY.

The requirements of sections 116.9401 to deleted text begin 116.9407 deleted text end new text begin 116.9413 new text end do not apply to:

(1) chemicals in used deleted text begin children's deleted text end products;

(2) priority chemicals used in the manufacturing process, but that are not present in the
final product;

(3) priority chemicals used in agricultural production;

(4) motor vehicles as defined in chapter 168 or watercraft as defined in chapter 86B or
their component parts, except that the use of priority chemicals in detachable car seats is
not exempt;

(5) priority chemicals generated solely as combustion by-products or that are present in
combustible fuels;

(6) retailers new text begin , except for section 116.941, subdivision 5 new text end ;

(7) pharmaceutical products or biologics;

(8) a medical device as defined in the federal Food, Drug, and Cosmetic Act, United
States Code, title 21, section 321(h);

(9) food and food or beverage packaging, except a container containing baby food or
infant formula;

(10) consumer electronics products and electronic components, including but not limited
to personal computers; audio and video equipment; calculators; digital displays; wireless
phones; cameras; game consoles; printers; and handheld electronic and electrical devices
used to access interactive software or their associated peripherals; or products that comply
with the provisions of directive 2002/95/EC of the European Union, adopted by the European
Parliament and Council of the European Union now or hereafter in effect; or

(11) outdoor sport equipment, including snowmobiles as defined in section 84.81,
subdivision 3; all-terrain vehicles as defined in section 84.92, subdivision 8; personal
watercraft as defined in section 86B.005, subdivision 14a; watercraft as defined in section
86B.005, subdivision 18; and off-highway motorcycles, as defined in section 84.787,
subdivision 7, and all attachments and repair parts for all of this equipment.

Sec. 5.

new text begin [116.9408] DISCLOSING INFORMATION ON PRIORITY CHEMICALS.
new text end

new text begin Subdivision 1. new text end

new text begin Reporting chemical use. new text end

new text begin (a) No later than 180 days after the effective
date of this act or 180 days after a priority chemical is designated under section 116.9403,
whichever occurs later, a manufacturer or distributor of a product that is for sale in the state
and that contains a priority chemical must notify the commissioner of that fact in writing
unless:
new text end

new text begin (1) the manufacturer obtains a waiver for the priority chemical in the product under
section 116.9411;
new text end

new text begin (2) the product is not subject to regulation under section 116.9405; or
new text end

new text begin (3) the chemical is prohibited from any use or from use in the specific product under
federal or Minnesota law.
new text end

new text begin (b) The written notice under paragraph (a) must identify the product, the number of units
sold or distributed for sale in the state or nationally during the previous calendar year, the
priority chemical contained in the product, and the intended function of the priority chemical
in the product.
new text end

new text begin Subd. 2. new text end

new text begin Supplemental information. new text end

new text begin A manufacturer or distributor of a product that
contains a priority chemical must provide the following additional information if requested
by the commissioner:
new text end

new text begin (1) information on the likelihood that the priority chemical will be released from the
product to the environment during the product's life cycle and the extent to which users of
the product are likely to be exposed to the priority chemical;
new text end

new text begin (2) additional information regarding the potential for harm to human health from exposure
to the priority chemical; and
new text end

new text begin (3) an assessment of the availability, cost, feasibility, and performance, including the
potential for harm to human health, of alternatives to the priority chemical and the reason
the priority chemical is used in the product in lieu of identified alternatives. If an assessment
acceptable to the commissioner is not timely submitted as determined by the commissioner,
the commissioner may assess a fee on the manufacturer or distributor in an amount sufficient
to pay an independent contractor to prepare a report containing the information required
under this clause.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 6.

new text begin [116.9409] SAFER ALTERNATIVES; COMPLIANCE PLAN.
new text end

new text begin Subdivision 1. new text end

new text begin Feasibility determination. new text end

new text begin Based on the information provided under
section 116.9408, the commissioner must determine whether there is an available and
technically feasible alternative to using the priority chemical in the product and must notify
the manufacturer or distributor of the determination in writing.
new text end

new text begin Subd. 2. new text end

new text begin Replacement timeline. new text end

new text begin Upon making a determination that a safer and technically
feasible alternative is available, the commissioner must specify a reasonably expeditious
timeline, not to exceed two years, by which date the manufacturer or distributor must replace
the priority chemical with the safer alternative in all units of the product offered for sale in
the state.
new text end

new text begin Subd. 3. new text end

new text begin Compliance plan. new text end

new text begin Within 90 days of receiving notice from the commissioner
of a determination that a technically feasible safer alternative is available, the manufacturer
or distributor of a prohibited product must file a compliance plan with the commissioner or
seek a waiver under section 116.9411. A compliance plan must:
new text end

new text begin (1) identify the product that contains the priority chemical;
new text end

new text begin (2) specify whether compliance will be achieved by discontinuing the sale of the product
in the state or by substituting a safer alternative for the priority chemical in the product; and
new text end

new text begin (3) if compliance is achieved by substitution of a safer alternative in the product, identify
the safer alternative and the timetable for replacement.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7.

new text begin [116.941] SALE PROHIBITION.
new text end

new text begin Subdivision 1. new text end

new text begin Action against product containing priority chemical. new text end

new text begin The commissioner
must prohibit sale or distribution in the state of a product containing a priority chemical if:
new text end

new text begin (1) the department finds that distributing and using the product directly or indirectly
results in human exposure to the priority chemical and one or more safer alternatives to the
priority chemical are available and are technically feasible replacements for the specific
function of the priority chemical in the product; or
new text end

new text begin (2) the manufacturer or distributor fails to obtain a waiver for the priority chemical in
the product under section 116.9411.
new text end

new text begin Subd. 2. new text end

new text begin Notice of prohibition. new text end

new text begin The commissioner must notify a manufacturer or
distributor of a decision to prohibit sale or distribution under subdivision 1. The notice of
prohibition must contain the effective date of the prohibition, which must be at least 270
days after the date of the notice.
new text end

new text begin Subd. 3. new text end

new text begin Certificate of compliance. new text end

new text begin No less than 60 days before the effective date of
the sale or distribution prohibition, a manufacturer or distributor must file with the
commissioner, in writing, a certificate of compliance certifying that after the effective date
of the prohibition, the manufacturer or distributor will not offer the product containing the
priority chemical for sale in the state.
new text end

new text begin Subd. 4. new text end

new text begin Notifying retailers. new text end

new text begin A manufacturer or distributor of a product issued a notice
of prohibition under subdivision 2 must notify, in writing, persons that offer the product
for sale or distribution in the state of the requirements of sections 116.9401 to 116.9413
and the effective date of the sale or distribution prohibition. Notice under this subdivision
must be issued within 30 days after the notice of prohibition is issued unless the manufacturer
or distributor applies for a waiver under section 116.9411, in which case the notice must
be issued within 30 days after the commissioner denies the waiver.
new text end

new text begin Subd. 5. new text end

new text begin Retailers; exhausting inventory. new text end

new text begin A retailer selling a product containing a
priority chemical that is the subject of a prohibition issued under subdivision 1 may not
offer the product for sale in the state after the effective date of the prohibition, except that
a retailer may exhaust stock that was at the retailer's premises 90 days before the effective
date of the prohibition. Before selling remaining stock, a retailer must provide evidence to
the commissioner that the stock was at the retailer's premises 90 days before the effective
date of the prohibition.
new text end

new text begin Subd. 6. new text end

new text begin Exceptions. new text end

new text begin A product containing a priority chemical designated by the
department may continue to be sold or offered for sale in the state if:
new text end

new text begin (1) the manufacturer or distributor obtains a waiver under section 116.9411; or
new text end

new text begin (2) in the commissioner's judgment, the lack of availability of the product could pose
an unreasonable risk to public health, safety, or welfare.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 8.

new text begin [116.9411] WAIVERS FOR SPECIFIC USES.
new text end

new text begin Subdivision 1. new text end

new text begin Application for waiver. new text end

new text begin The manufacturer or distributor of a product
that contains a priority chemical and is subject to a prohibition under section 116.941 may
apply to the commissioner for a waiver in a form prescribed by the commissioner for one
or more specific uses of the priority chemical. The waiver application must, at a minimum:
new text end

new text begin (1) identify the specific product use for which the waiver is sought;
new text end

new text begin (2) identify the alternatives considered to replace the priority chemical;
new text end

new text begin (3) include evidence supporting the conclusion that the use of an alternative is not
technically or economically feasible; and
new text end

new text begin (4) identify steps that the manufacturer or distributor has taken and will take to minimize
the use of the priority chemical in the product.
new text end

new text begin Subd. 2. new text end

new text begin Term of waiver. new text end

new text begin The commissioner may grant a waiver with or without
conditions upon finding that there are no technically or economically feasible alternatives
for using the priority chemical in the product. Waivers may be granted for a term not to
exceed four years and may be renewed for one or more additional four-year terms upon
written application demonstrating that technically or economically feasible alternatives
remain unavailable. The commissioner must deny or grant waiver requests within 60 days
after receiving a completed waiver application.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 9.

new text begin [116.9413] ENFORCEMENT.
new text end

new text begin The commissioner must enforce sections 116.9401 to 116.9411 in the manner provided
by sections 115.071, subdivisions 1 to 6, and 116.072.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 10. new text begin REPORT REQUIRED.
new text end

new text begin By January 15, 2023, the commissioner of the Pollution Control Agency must report to
the chairs and ranking minority members of the legislative committees with jurisdiction
over environment and natural resources, commerce, and public health regarding the
commissioner's plan to implement sections 116.9408 to 116.9413. The report must include
recommendations for funding implementation of sections 116.9408 to 116.9413 and for
promoting and providing incentives to manufacturers to design products that minimize using
harmful chemicals.
new text end

Sec. 11. new text begin RULEMAKING REQUIRED.
new text end

new text begin The commissioner of the Pollution Control Agency must adopt rules under Minnesota
Statutes, chapter 14, to implement Minnesota Statutes, sections 116.9408 to 116.9413, no
later than October 1, 2024.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end