SF 1099

3rd Engrossment - 89th Legislature (2015 - 2016) Posted on 09/02/2015 03:53pm

A bill for an act
relating to environment; regulating chemicals of high concern in children's
products; amending Minnesota Statutes 2014, sections 13.7411, subdivision 8;
116.9401; 116.9402; 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 2014, section 13.7411, subdivision 8, is amended to read:

Subd. 8.

Pollution Control Agency.

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

new text begin (b) Priority chemicals. Trade secret information and other information submitted
to the Pollution Control Agency related to priority chemicals in children's products are
governed by section 116.9408.
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 2014, 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 116.9411 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) new text begin "Contaminant" means a trace amount of a chemical that is incidental to
manufacturing and serves no intended function in the product component. Contaminant
includes, but is not limited to, unintended by-products of chemical reactions that
occur during the manufacture of the product component, trace impurities in feedstock,
incompletely reacted chemical mixtures, and degradation products.
new text end

new text begin (j) new text end "Department" means the Department of Health.

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

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

deleted text begin (l) deleted text end new text begin (m) 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 presence in the United States.

new text begin (n) "Practical quantification limit" means the lowest concentration of a chemical that
can be reliably measured within specified limits of precision, accuracy, representativeness,
completeness, and comparability under routine laboratory operating conditions, the value
of which:
new text end

new text begin (1) is based on scientifically defensible, standard analytical methods;
new text end

new text begin (2) may vary depending on the matrix and analytical method used; and
new text end

new text begin (3) will be determined jointly by the agency and the department, taking into
consideration practical quantification limits established by federal or state agencies.
new text end

deleted text begin (m) deleted text end new text begin (o) 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 (p) "Product category" means the brick level of the GS1 Global Product
Classification (GPC) standard, which identifies products that serve a common purpose, are
of a similar form and material, and share the same set of category attributes.
new text end

new text begin (q) 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 EFFECTIVE DATE. new text end

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

Sec. 3.

Minnesota Statutes 2014, section 116.9402, is amended to read:

116.9402 IDENTIFICATION OF 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 periodically 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). new text begin Any
changes to the list of chemicals of high concern must be published on the department's
Web site and in the State Register when a change is made.
new text end

(c) The department shall consider chemicals listed 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. 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. 4.

Minnesota Statutes 2014, section 116.9403, is amended to read:

116.9403 IDENTIFICATION OF 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) 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 Any proposed changes to the list of
priority chemicals must be published on the department's Web site and in the State Register
and is subject to a minimum 60-day public comment period. After the department's
review and consideration of public comments, a final list of changes to the list of priority
chemicals must be published on the department's Web site and in the State Register.
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. 5.

Minnesota Statutes 2014, 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 116.9411 new text end do not apply to:

(1) chemicals in used 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 new text begin , except if a retailer is also the producer, manufacturer, importer, or
domestic distributor of a children's product containing a priority chemical or the retailer's
brand name is affixed to a children's product containing a priority chemical 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; deleted text begin or
deleted text end

(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 new text begin ;
new text end

new text begin (12) a manufacturer or distributor of a children's product whose annual aggregate
gross sales, both within and outside this state, as reported in the manufacturer's or
distributor's most recently filed federal tax return, is below $100,000; or
new text end

new text begin (13) a children's product if the annual production of the children's product is less
than 3,000 units 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.

Minnesota Statutes 2014, 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 116.9411 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 116.9411 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 [116.9408] CHILDREN'S PRODUCTS; REPORTING INFORMATION
ON PRIORITY CHEMICALS.
new text end

new text begin Subdivision 1. new text end

new text begin Reporting; content. new text end

new text begin A manufacturer or distributor of a children's
product offered for sale in this state that contains one or more priority chemicals
designated under section 116.9403 must, unless the children's product is exempt under
section 116.9405, provide the following information to the agency, on a form developed by
the agency, for each priority chemical that is intentionally added to the children's product
and present at or above the practical quantification limit or that is a contaminant present in
a component of the children's product at a concentration above 100 parts per million:
new text end

new text begin (1) the name of the priority chemical;
new text end

new text begin (2) the Chemical Abstracts Service Registry number of the priority chemical;
new text end

new text begin (3) the concentration of each priority chemical contained in a children's product, a
description of how the concentration was determined, and an evaluation of the accuracy
of the determination. Concentrations at or above the practical quantification limit must
be reported, but may be reported in the following ranges:
new text end

new text begin (i) greater than or equal to the practical quantification limit but less than 100 parts
per million (ppm);
new text end

new text begin (ii) greater than or equal to 100 ppm but less than 500 ppm;
new text end

new text begin (iii) greater than or equal to 500 ppm but less than 1,000 ppm;
new text end

new text begin (iv) greater than or equal to 1,000 ppm but less than 5,000 ppm;
new text end

new text begin (v) greater than or equal to 5,000 ppm but less than 10,000 ppm; and
new text end

new text begin (vi) greater than or equal to 10,000 ppm;
new text end

new text begin (4) the product category of the children's product;
new text end

new text begin (5) the number of units of the children's product sold in Minnesota or nationally in
the most recently completed calendar year;
new text end

new text begin (6) information that the agency determines is necessary to determine the extent to
which a child is likely to be exposed to the priority chemical through normal use of the
product;
new text end

new text begin (7) any assessment conducted by the manufacturer or distributor of the children's
product or others regarding the use of safer alternatives to the priority chemical contained
in the children's product; and
new text end

new text begin (8) any additional information requested by the agency.
new text end

new text begin Subd. 2. new text end

new text begin Report timing. new text end

new text begin (a) A manufacturer or distributor subject to this section
must report the information required under this section to the agency no later than one
year after a priority chemical has been designated under section 116.9403 or, for a priority
chemical designated under section 116.9403 before July 1, 2011, on the following
schedule based on the manufacturer's or distributor's annual aggregate gross sales, both
within and outside the state, as reported in the manufacturer's or distributor's most recently
filed federal tax return:
new text end

new text begin (1) for a manufacturer or distributor with gross sales exceeding $1,000,000,000, by
July 1, 2017;
new text end

new text begin (2) for a manufacturer or distributor with gross sales exceeding $250,000,000 but
less than or equal to $1,000,000,000, by January 1, 2018;
new text end

new text begin (3) for a manufacturer or distributor with gross sales exceeding $100,000,000 but
less than or equal to $250,000,000, by July 1, 2018;
new text end

new text begin (4) for a manufacturer or distributor with gross sales exceeding $5,000,000 but less
than or equal to $100,000,000, by July 1, 2019; and
new text end

new text begin (5) for a manufacturer or distributor with gross sales exceeding $100,000 but less
than or equal to $5,000,000, by July 1, 2020.
new text end

new text begin (b) Two years after submitting an initial report to the agency under this section,
a manufacturer or distributor of a children's product offered for sale in this state that
continues to contain one or more priority chemicals must submit an updated report
containing the information required under subdivision 1 and the 12-digit Universal
Product Code for the children's product. If the children's product continues to be offered
for sale in this state and to contain the priority chemical, the information required under
this paragraph must be submitted to the agency every two years.
new text end

new text begin Subd. 3. new text end

new text begin Public data. new text end

new text begin Notwithstanding section 13.37, subdivision 2, the presence
and concentration of a priority chemical in a specific children's product reported to the
agency under this section are classified as public data.
new text end

new text begin Subd. 4. new text end

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

new text begin Notwithstanding section 325C.01,
subdivision 3, publication by the agency of the presence and concentration of a priority
chemical in a specific children's product reported to the agency under this section is not
misappropriation of a trade secret.
new text end

new text begin Subd. 5. new text end

new text begin Removal of priority chemical; reporting. new text end

new text begin A manufacturer or distributor
who removes a priority chemical from a children's product reported under this section
must notify the agency of the removal at the earliest possible date. If the priority
chemical removed is replaced by a safer alternative, the manufacturer or distributor
must provide, on a form developed by the agency, the name of the safer alternative
and its Chemical Abstracts Service Registry number or, if not replaced by a chemical
alternative, a description of the techniques or design changes implemented. The safer
alternative or nonchemical techniques or design changes may be designated as trade
secrets. Upon verification that all priority chemicals in the product have been replaced by
safer alternatives, the commissioner must promptly remove from state agency Web sites
any reference to the relevant children's product of the manufacturer, and the manufacturer
will no longer report or pay fees on that children's product.
new text end

new text begin Subd. 6. new text end

new text begin Failure to report. new text end

new text begin If the information required in this section 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 specified under section 116.9409.
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 [116.9409] FEES.
new text end

new text begin (a) The agency shall collect a fee of $1,000 for each priority chemical initially
reported under section 116.9408. The fee increases by $1,000 for each report subsequently
filed with the agency under section 116.9408 for the same chemical contained in the
same children's product category.
new text end

new text begin (b) The agency shall collect 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 116.9408, subdivision 6.
new text end

new text begin (c) The commissioner shall deposit all fees received under this section in an account
in the special revenue fund.
new text end

new text begin (d) Fees collected under this section are exempt from section 16A.1285.
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 [116.9410] ENFORCEMENT.
new text end

new text begin The agency shall enforce sections 116.9401 to 116.9409 in the manner provided by
section 115.071, subdivisions 1, 3, 4, 5, and 6. Section 115.071, subdivision 2, does not
apply to violations of sections 116.9401 to 116.9409.
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 [116.9411] STATE AGENCY DUTIES.
new text end

new text begin Subdivision 1. new text end

new text begin Safer alternative grants. new text end

new text begin If there is fee revenue collected under
section 116.9409, paragraph (a), in excess of program implementation costs, the
commissioner, in consultation with the commissioners of commerce and health, may
use that fee revenue to offer grants awarded competitively to manufacturers or other
researchers to develop safer alternatives to priority chemicals in children's products,
to establish alternatives as safer alternatives, or to accelerate the commercialization of
safer alternatives.
new text end

new text begin Subd. 2. new text end

new text begin Education and outreach. new text end

new text begin The commissioners of health and commerce
shall develop and implement an education and outreach effort regarding priority chemicals
in children's products.
new text end

new text begin Subd. 3. new text end

new text begin Report. new text end

new text begin By January 15, 2018, and every three years thereafter, the
commissioners of the Pollution Control Agency, health, and commerce shall report to
the legislative committees with jurisdiction over environment and natural resources,
commerce, and public health on the implementation of sections 116.9401 to 116.9411.
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