HF 605

as introduced - 88th Legislature (2013 - 2014) Posted on 02/14/2013 02:00pm

A bill for an act
relating to public health; protecting children from exposure to harmful chemicals
in products; amending criteria for identification of priority chemicals; requiring
disclosure by manufacturers of children's products that contain harmful
chemicals; authorizing Pollution Control Agency to prohibit sales of children's
products that contain harmful chemicals; providing waiver process; establishing
fees; requiring a report; amending Minnesota Statutes 2012, sections 13.7411,
subdivision 8; 116.9401; 116.9403; 116.9405; 116.9406; 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 2012, section 13.7411, subdivision 8, is amended to read:

Subd. 8.

Pollution Control Agency.

(a) Hazardous waste generators.
Information provided by hazardous waste generators under section 473.151 and for which
confidentiality is claimed is governed by section 116.075, subdivision 2.

(b) Tests. Trade secret information made available by applicants for certain projects
of the Pollution Control Agency is classified under section 116.54.

new text begin (c) Priority chemicals. Trade secret information and other information submitted
to the Pollution Control Agency related to priority chemicals in children's products are
classified under sections 116.9403 to 116.9417.
new text end

Sec. 2.

Minnesota Statutes 2012, 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 116.9423 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 chemical in a children's 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.

(f) "Child" means a person under 12 years of age.

(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.

(h) "Commissioner" means the commissioner of the Pollution Control Agency.

(i) "Department" means the Department of Health.

(j) "Distributor" means a person who sells consumer products to retail establishments
on a wholesale basis.

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

(l) "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 presence in the United States.

(m) "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.

(n) "Safer alternative" means new text begin :
new text end

new text begin (1) new text end an alternative deleted text begin whose deleted text end new text begin chemical that is not a chemical of high concern, the
new text end potential new text begin of which new text end to harm human health is less than that of the use of a priority chemical
that it could replace deleted text begin . deleted text end new text begin ; or
new text end

new text begin (2) the removal of a priority chemical from a children's product without substitution
of another chemical.
new text end

Sec. 3.

Minnesota Statutes 2012, section 116.9403, is amended to read:

116.9403 IDENTIFICATION OF PRIORITY CHEMICALS.

new text begin Subdivision 1. new text end

new text begin Designation; publication. new text end

(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; deleted text begin and
deleted text end

deleted text begin (2) meets any of the following criteria:
deleted text end

deleted text begin (i) the chemical deleted text end new text begin (2) new text end has been found through biomonitoring to be present in human
blood, including umbilical cord blood, breast milk, urine, or other bodily tissues or fluids;

deleted text begin (ii) the chemical deleted text end new text begin (3) new text end has been found through sampling and analysis to be present in
household dust, indoor air, drinking water, or elsewhere in the home environment; or

deleted text begin (iii) the chemical deleted text end new text begin (4) new text end has been found through monitoring to be present in fish,
wildlife, or the natural environment.

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

new text begin Subd. 2. new text end

new text begin Public data. new text end

new text begin Notwithstanding section 13.37, subdivision 2, identification
of a chemical that is trade secret information as a priority chemical through designation or
publication under this section is classified as public data.
new text end

new text begin Subd. 3. new text end

new text begin Not misappropriation of trade secret. new text end

new text begin Notwithstanding section 325C.01,
subdivision 3, designation or publication of the identity of a priority chemical under this
section is not misappropriation of a trade secret.
new text end

Sec. 4.

Minnesota Statutes 2012, 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 116.9423 new text end do not apply to:

(1) chemicals in deleted text begin used deleted text end new text begin previously owned new text end children's 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;

(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) deleted text begin food and food or beverage packaging, except a container containing baby food
or infant formula;
deleted text end

deleted text begin (10) deleted text end 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; deleted text begin or
deleted text end

deleted text begin (11) deleted text end new text begin (10) new text end 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 new text begin ; or
new text end

new text begin (11) a children's product, the annual production of which is less than 3,000 units new text end .

Sec. 5.

Minnesota Statutes 2012, section 116.9406, is amended to read:

116.9406 DONATIONS TO THE STATE.

The commissioner may accept donations, grants, and other funds to carry out the
purposes of sections 116.9401 to deleted text begin 116.9407 deleted text end new text begin 116.9423 new text end . All donations, grants, and other
funds must be accepted without preconditions regarding the outcomes of the regulatory
oversight processes set forth in sections 116.9401 to deleted text begin 116.9407 deleted text end new text begin 116.9423 new text end .

Sec. 6.

new text begin [116.9409] CHILDREN'S PRODUCTS; REPORTING INFORMATION
ON PRIORITY CHEMICALS.
new text end

new text begin (a) Within 180 days after a priority chemical is designated under section 116.9403
or, for a priority chemical designated under section 116.9403 before July 1, 2011, by
January 1, 2014, a manufacturer or distributor of a children's product offered for sale in
the state that contains a priority chemical must, unless the children's product is not subject
to regulation under section 116.9405, provide the following information to the agency on
a form developed by the commissioner:
new text end

new text begin (1) the name of the priority chemical and its Chemical Abstracts Service Registry
number;
new text end

new text begin (2) in which of the following categories the children's product containing a priority
chemical belongs:
new text end

new text begin (i) Category 1: a children's product intended to be used by children three years of age
or younger or intended to be placed in a child's mouth or directly applied to a child's skin;
new text end

new text begin (ii) Category 2: a children's product intended to be in direct contact with a child's skin
for one hour or longer, including but not limited to clothing, jewelry, bedding, or a car seat;
new text end

new text begin (iii) Category 3: a children's product intended to be in direct contact with a child's
skin for less than one hour; or
new text end

new text begin (iv) Category 4: a children's product in which a priority chemical is contained only
in an internal component not intended to be in direct contact with a child's skin or mouth;
new text end

new text begin (3) an estimate of the total amount of the priority chemical contained in each product
and product component, a description of how the estimate was made, and an evaluation of
the estimate's accuracy;
new text end

new text begin (4) evidence describing the extent to which a child is likely to be exposed to the
priority chemical through normal use of the children's product;
new text end

new text begin (5) the number of units of the children's product sold or distributed in Minnesota
or nationally;
new text end

new text begin (6) any assessment of the use of safer alternatives to the priority chemical contained
in the children's product;
new text end

new text begin (7) any other information the manufacturer deems relevant; and
new text end

new text begin (8) any other information requested by the commissioner.
new text end

new text begin (b) If the information required in paragraph (a) is not submitted in a timely fashion
or is incomplete or otherwise unacceptable as determined by the agency, the agency may
contract with an independent third party of the agency's choice to provide the information
and may assess a fee on the manufacturer or distributor to pay the costs as specified
under section 116.9419. If the priority chemical in question is claimed as a trade secret
under section 325C.01, subdivision 5, any contract between the agency and a third party
for information required under this section must stipulate that the trade secret status of
the information be maintained.
new text end

new text begin (c) Following the initial submission of the information required under paragraph
(a), a manufacturer or distributor of a children's product offered for sale in the state that
continues to contain a priority chemical must submit the information required under
paragraph (a) to the agency every two years.
new text end

Sec. 7.

new text begin [116.9411] CHILDREN'S PRODUCTS; MANUFACTURER'S OR
DISTRIBUTOR'S OPTIONS.
new text end

new text begin A manufacturer or distributor of a children's product containing a priority chemical
must:
new text end

new text begin (1) obtain a determination from the commissioner under section 116.9413 that a
child using the children's product is unlikely to be exposed to the priority chemical;
new text end

new text begin (2) remove the priority chemical from the children's product;
new text end

new text begin (3) discontinue offering the children's product for sale in the state; or
new text end

new text begin (4) obtain a waiver from the commissioner under section 116.9417.
new text end

Sec. 8.

new text begin [116.9413] CHILDREN'S PRODUCTS; EXPOSURE DETERMINATION.
new text end

new text begin Subdivision 1. new text end

new text begin Agency determination. new text end

new text begin Within 180 days following receipt of the
information provided under section 116.9409, the agency shall determine whether a child
is likely to be exposed to the priority chemical through normal use of the children's
product. If the agency determines that exposure is likely to occur, the children's product
must be prohibited from sale according to section 116.9415, unless the commissioner has
approved a waiver under section 116.9417. In making the determination, the agency may
request additional information regarding potential exposure to the priority chemical from
the manufacturer or distributor of the children's product.
new text end

new text begin Subd. 2. new text end

new text begin Notice. new text end

new text begin Within 30 days of a determination of exposure under subdivision
1, the agency shall provide written notice of the determination to the manufacturer or
distributor of the children's product containing a priority chemical.
new text end

new text begin Subd. 3. new text end

new text begin Inadequate response; contract option. new text end

new text begin If the additional information
requested under subdivision 1 is not submitted by the manufacturer or distributor to the
agency in a timely fashion or is incomplete or otherwise unacceptable, as determined by
the agency, the agency may contract with an independent third party of the agency's choice
to provide the information and may assess a fee on the manufacturer or distributor to pay
the costs of providing the information, as specified in section 116.9419. If the priority
chemical in question is claimed as a trade secret under section 325C.01, subdivision 5, any
contract between the agency and a third party for information required under this section
must stipulate that the trade secret status of the information be maintained.
new text end

Sec. 9.

new text begin [116.9415] CHILDREN'S PRODUCTS; SALE PROHIBITION.
new text end

new text begin Subdivision 1. new text end

new text begin Notice of intention. new text end

new text begin Within 30 days of receiving the agency's
notice of determination of exposure issued under section 116.9413, a manufacturer or
distributor intending to seek a safer alternative to replace a priority chemical in a children's
product must provide written notice of that fact to the commissioner. The notice must
include an estimated timeline and outline of the stages of the safer alternative research
and development process. The manufacturer or distributor must file a written report to
the agency every three months, documenting activities in researching and developing a
safer alternative. Material filed by a manufacturer or distributor under this subdivision is
nonpublic data as defined in section 13.02, subdivision 9.
new text end

new text begin Subd. 2. new text end

new text begin Agency determination. new text end

new text begin (a) No later than 90 days after making a
determination that a user of a children's product is likely to be exposed to a priority chemical
through normal use of the children's product, the commissioner shall, after considering the
information provided by the manufacturer or distributor under subdivision 1, if applicable,
specify a date, no less than 18 months after, but not exceeding four years after, issuing a
notice of prohibition of sale under subdivision 3, after which the children's product may
no longer be sold or offered for sale in the state if it contains a priority chemical.
new text end

new text begin (b) The commissioner may, based on the reports filed under subdivision 1, advance or
set back the initial effective date of prohibition of sale, but may not extend it beyond four
years after the date of issuing the initial notice of prohibition of sale under subdivision 3.
new text end

new text begin (c) The commissioner may prohibit the sale in the state of a children's product
containing a priority chemical if the manufacturer or distributor fails to provide the
information required under section 116.9409 in a timely fashion or if the information is
incomplete or otherwise unacceptable, as determined by the agency.
new text end

new text begin Subd. 3. new text end

new text begin Notice of prohibition of sale. new text end

new text begin Within 30 days of a determination under
subdivision 2, the agency shall provide written notice to the manufacturer or distributor of
the children's product containing a priority chemical of the agency's decision to prohibit
offering the children's product for sale in the state and the effective date of the prohibition.
new text end

new text begin Subd. 4. new text end

new text begin Compliance plan. new text end

new text begin (a) No later than 180 days prior to the effective date of a
prohibition established under subdivision 2, the manufacturer or distributor of a children's
product that contains a priority chemical that is subject to a prohibition of sale under this
section shall file a compliance plan with the commissioner. A compliance plan must:
new text end

new text begin (1) identify the children's 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
children's product in the state or by removing the priority chemical from the children's
product; and
new text end

new text begin (3) if compliance is achieved through substitution of a safer alternative for the
priority chemical:
new text end

new text begin (i) identify the safer alternative;
new text end

new text begin (ii) evaluate the likelihood of a child using the children's product to be exposed to
the safer alternative through normal use; and
new text end

new text begin (iii) evaluate the potential harm to the health of a child exposed to the safer
alternative; and
new text end

new text begin (4) contain a certificate of compliance certifying that after the effective date of the
prohibition of sale, the manufacturer or distributor will not offer the product containing
the priority chemical for sale in the state.
new text end

new text begin (b) The agency must approve, reject, or modify a compliance plan and provide
written notice of the agency's decision to the manufacturer or distributor within 120 days
after the compliance plan is filed.
new text end

new text begin Subd. 5. new text end

new text begin Retailer notification. new text end

new text begin A manufacturer or distributor of a children's product
issued a notice of prohibition of sale under subdivision 3 shall notify, in writing, persons
that offer the product for sale or distribution in the state of the requirements of sections
116.9401 to 116.9423, and the effective date of the prohibition of sale. Notice under this
subdivision must be issued within 30 days of the agency's approval of the manufacturer's
or distributor's compliance plan, unless the manufacturer or distributor has applied for and
been denied a waiver under section 116.9417, in which case the notice must be issued
within 30 days of denial of a waiver by the commissioner.
new text end

new text begin Subd. 6. new text end

new text begin Sale of inventory. new text end

new text begin A retailer selling a children's product containing a
priority chemical that is the subject of a prohibition of sale issued under this section may
not offer the children's product for sale in the state after the effective date of the prohibition,
except that a retailer may exhaust stocks present on the retailer's premises 90 days prior to
the effective date of the prohibition, after providing evidence of that fact to the agency.
new text end

Sec. 10.

new text begin [116.9417] CHILDREN'S PRODUCTS; WAIVER FROM SALE
PROHIBITION.
new text end

new text begin Subdivision 1. new text end

new text begin Waiver application. new text end

new text begin No later than one year prior to the date of
prohibition of sale established under section 116.9415, a manufacturer or distributor of a
children's product that is subject to the prohibition may file an application for a waiver
from the prohibition with the commissioner. The waiver application must:
new text end

new text begin (1) identify the specific children's product and the function of the priority chemical
for which the waiver is sought;
new text end

new text begin (2) identify alternatives considered as substitutions for the priority chemical;
new text end

new text begin (3) contain evidence supporting the conclusion that the use of a safer alternative is
not technically or economically feasible;
new text end

new text begin (4) identify steps that have been and will be taken to minimize the use of the priority
chemical in the children's product, if any; and
new text end

new text begin (5) contain evidence demonstrating that the lack of availability of the children's
product containing the priority chemical may pose an unreasonable risk to public health,
safety, or welfare.
new text end

new text begin Subd. 2. new text end

new text begin Waiver determination. new text end

new text begin (a) The commissioner may grant a waiver with or
without conditions upon determining that:
new text end

new text begin (1) there is no technically or economically feasible safer alternative for the use of the
priority chemical in the children's product; and
new text end

new text begin (2) the lack of availability of the children's product containing the priority chemical
may pose an unreasonable risk to public health, safety, or welfare.
new text end

new text begin (b) The commissioner shall grant or deny a waiver request within 90 days of
receiving a completed waiver application.
new text end

new text begin (c) In making a determination under this section, the commissioner may contract
with an independent third party of the agency's choice to provide additional information
and may assess a fee on the manufacturer or distributor to pay the costs of providing the
information, as specified in section 116.9419. If a priority chemical that is the subject of a
waiver application is claimed as a trade secret under section 325C.01, subdivision 5, any
contract between the commissioner and a third party for information required under this
section must stipulate that the trade secret status of the information be maintained.
new text end

new text begin Subd. 3. new text end

new text begin Notice of waiver determination. new text end

new text begin Within 30 days of a determination under
subdivision 2, the agency shall provide written notice of the decision to the manufacturer
or distributor of the children's product containing the priority chemical.
new text end

new text begin Subd. 4. new text end

new text begin Term of waiver. new text end

new text begin A waiver may be granted for a term not to exceed two
years. A waiver may be renewed for one additional two-year term upon approval by the
commissioner, following the commissioner's receipt of a written application from the
manufacturer or distributor containing the information required under subdivision 1.
new text end

new text begin Subd. 5. new text end

new text begin Waiver application not public information. new text end

new text begin A waiver application
is nonpublic data, as defined in section 13.02, subdivision 9. The fact that a waiver
application has been filed with the agency is public data that may be accessed according to
section 13.03.
new text end

Sec. 11.

new text begin [116.9419] FEES.
new text end

new text begin (a) The agency shall, if applicable, collect the following fees from manufacturers
and distributors of children's products offered for sale in the state:
new text end

new text begin (1) a fee of $....... for each report filed under section 116.9409;
new text end

new text begin (2) a fee equal to the costs billed by the independent contractor plus the agency's
actual incurred costs to bid and administer the contract for each contract issued under
section 116.9409, paragraph (b), 116.9413, subdivision 3, or 116.9417, subdivision 2;
new text end

new text begin (3) a fee of $....... for each compliance plan filed under section 116.9415; and
new text end

new text begin (4) a fee of $....... for each waiver application filed under section 116.9417,
subdivision 1.
new text end

new text begin (b) The commissioner shall deposit all fees collected under this section in the
environmental fund. All fees collected under this section are exempt from section
16A.1285.
new text end

Sec. 12.

new text begin [116.9423] ENFORCEMENT.
new text end

new text begin The agency shall enforce sections 116.9401 to 116.9419 in the manner provided
by section 115.071, subdivisions 1 to 6.
new text end

Sec. 13. new text begin REPORT.
new text end

new text begin By January 15, 2015, the commissioner of the Pollution Control Agency shall
report to the legislative committees with jurisdiction over environment and natural
resources, commerce, and public health regarding the agency's plans for implementing the
requirements of sections 116.9401 to 116.9419.
new text end

Sec. 14. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 13 are effective the day following final enactment.
new text end