3rd Engrossment - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to the environment; modifying requirements 1.3 relating to toxics in products; amending Minnesota 1.4 Statutes 1996, section 115A.9651. 1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.6 Section 1. Minnesota Statutes 1996, section 115A.9651, is 1.7 amended to read: 1.8 115A.9651 [TOXICSLISTED METALS IN SPECIFIED PRODUCTS; 1.9 ENFORCEMENT.] 1.10 Subdivision 1. [PROHIBITION.](a) Except as provided in1.11paragraphs (d) and (e), no person may distribute for sale or use1.12in this state any ink, dye, pigment, paint, or fungicide1.13manufactured after September 1, 1994, into which lead, cadmium,1.14mercury, or hexavalent chromium has been intentionally1.15introduced.1.16(b) For the purposes of this subdivision, "intentionally1.17introduce" means to deliberately use a metal listed in paragraph1.18(a) as an element during manufacture or distribution of an item1.19listed in paragraph (a). Intentional introduction does not1.20include the incidental presence of any of the prohibited1.21elements.1.22(c) The concentration of a listed metal in an item listed1.23in paragraph (a) may not exceed 100 parts per million.1.24(d) The prohibition on the use of lead in substances1.25utilized in marking road, street, highway, and bridge pavements2.1does not take effect until July 1, 1998.2.2(e) The use of lead in substances utilized in marking road,2.3street, highway, and bridge pavements is exempt from this2.4subdivision until July 1, 1998.After July 1, 1998, no person 2.5 may distribute a listed product for sale or use in this state. 2.6Subd. 2. [TEMPORARY EXEMPTION.] (a) An item listed in2.7subdivision 1 is exempt from this section until July 1, 1998, if2.8the manufacturer of the item submitted to the commissioner a2.9written request for an exemption by August 1, 1994. The request2.10must include at least:2.11(1) an explanation of why compliance is not technically2.12feasible at the time of the request;2.13(2) how the manufacturer will comply by July 1, 1997; and2.14(3) the name, address, and telephone number of a person the2.15commissioner can contact for further information.2.16(b) By September 1, 1994, a person who uses an item listed2.17in subdivision 1, into which one of the listed metals has been2.18intentionally introduced, may submit, on behalf of the2.19manufacturer, a request for temporary exemption only if the2.20manufacturer fails to submit an exemption request as provided in2.21paragraph (a). The request must include:2.22(1) an explanation of why the person must continue to use2.23the item and a discussion of potential alternatives;2.24(2) an explanation of why it is not technically feasible at2.25the time of the request to formulate or manufacture the item2.26without intentionally introducing a listed metal;2.27(3) that the person will seek alternatives to using the2.28item by July 1, 1997, if it still contains an intentionally2.29introduced listed metal; and2.30(4) the name, address, and telephone number of a person the2.31commissioner can contact for further information.2.32(c) A person who submits a request for temporary exemption2.33under paragraph (b) may submit a request for a temporary2.34exemption after September 1, 1994, for an item that the person2.35will use as an alternative to the item for which the request was2.36originally made as long as the new item has a total3.1concentration level of all the listed metals that is3.2significantly less than in the original item. An exemption3.3under this paragraph expires July 1, 1998, and the person who3.4requests it must submit the progress description required in3.5paragraph (e).3.6(d) By October 1, 1994, and annually thereafter if requests3.7are received under paragraph (c), the commissioner shall submit3.8to the environment and natural resources committees of the3.9senate and house of representatives, the finance division of the3.10senate committee on environment and natural resources, and the3.11house of representatives committee on environment and natural3.12resources finance a list of manufacturers and persons that have3.13requested an exemption under this subdivision and the items for3.14which exemptions were sought, along with copies of the requests.3.15(e) By July 1, 1996, each manufacturer on the list shall3.16submit to the commissioner a description of the progress the3.17manufacturer has made toward compliance with subdivision 1, and3.18the date compliance has been achieved or the date on or before3.19July 1, 1998, by which the manufacturer anticipates achieving3.20compliance. By July 1, 1996, each person who has requested an3.21exemption under paragraph (b) or (c) shall submit to the3.22commissioner:3.23(1) a description of progress made to eliminate the listed3.24metal or metals from the item or progress made by the person to3.25find a replacement item that does not contain an intentionally3.26introduced listed metal; and3.27(2) the date or anticipated date the item is or will be3.28free of intentionally introduced metals or the date the person3.29has stopped or will stop using the item.3.30By October 1, 1996, the commissioner shall submit to the3.31environment and natural resources committees of the senate and3.32house of representatives, the finance division of the senate3.33committee on environment and natural resources, and the house of3.34representatives committee on environment and natural resources3.35finance a summary of the progress made by the manufacturers and3.36other persons and any recommendations for appropriate4.1legislative or other action to ensure that products are not4.2distributed in the state after July 1, 1998, that violate4.3subdivision 1.4.4 Subd. 2. [DEFINITIONS.] (a) For the purposes of this 4.5 section, the following terms have the meanings given them. 4.6 (b) "Council" means the council established under 4.7 subdivision 5. 4.8 (c) "Essential product" means a specified product into 4.9 which the introduction of a listed metal is required under 4.10 military specifications or to ensure the integrity of a product 4.11 essential for aviation or railroad safety, and which is being 4.12 used only in that application. 4.13 (d) "Intentionally introduce" means to deliberately use a 4.14 listed metal as an element during manufacture or distribution of 4.15 a specified product. Intentional introduction does not include 4.16 the incidental presence of a listed metal. 4.17 (e) "Listed metal" means lead, cadmium, mercury, or 4.18 hexavalent chromium. 4.19 (f) "Listed product" means a specified product that is 4.20 included on the prohibited products list published under 4.21 subdivision 4. 4.22 (g) "New product" means a specified product which was not 4.23 used, sold, or distributed in the state before July 2, 1998, or 4.24 which has been reformulated so that it contains more of a listed 4.25 metal. 4.26 (h) "Official" means an officer of a corporation, a general 4.27 partner of a partnership or limited partnership, a sole 4.28 proprietor, or, in the case of any other entity, a person with 4.29 high level management responsibilities. 4.30 (i) "Specified product" means an ink, dye, pigment, paint, 4.31 or fungicide into which a listed metal has been intentionally 4.32 introduced or in which the incidental presence of a listed metal 4.33 exceeds a concentration of 100 parts per million. 4.34 Subd. 3. [APPLICATION; ENFORCEMENTCERTIFICATION OF 4.35 COMPLIANCE.] (a)This section does not apply to art supplies.4.36(b) This section may be enforced under sections 115.071 and5.1116.072. The attorney general or the commissioner of the agency5.2shall coordinate enforcement of this section with the director5.3of the office.By July 1, 1998, each person who has filed the 5.4 progress report specified in Laws 1994, chapter 585, section 30, 5.5 subdivision 2, paragraph (e), indicating compliance would be 5.6 achieved by July 1, 1998, shall certify to the commissioner that 5.7 the products referenced in that report have been reformulated 5.8 and no longer meet the definition of a specified product. The 5.9 certification must be in writing and signed by an official of 5.10 the company. If, due to significant change in circumstances, 5.11 the person cannot so certify by July 1, 1998, a product review 5.12 report and fee shall be submitted as provided under subdivision 5.13 6. 5.14 (b) The person submitting the certification shall keep a 5.15 copy on file and make copies available to the commissioner or 5.16 the attorney general upon request or to any member of the public 5.17 within 60 days of receipt of a written request that specifies 5.18 the type of product for which the information is requested. 5.19 Subd. 4. [PROHIBITED PRODUCTS LIST.] By October 1, 1998, 5.20 the commissioner shall publish in the State Register a list of 5.21 specified products for which the commissioner has received 5.22 certifications as provided under subdivision 3. 5.23 Subd. 5. [LISTED METALS ADVISORY COUNCIL.] (a) The purpose 5.24 of the listed metals advisory council is to promote sustainable 5.25 development, as defined in section 4A.07, the public health and 5.26 welfare and protect the environment and the state's economy by 5.27 removing listed metals from specified products so that the 5.28 listed metals do not contribute to bioaccumulation and burden 5.29 taxpayers with unnecessary disposal costs. 5.30 (b) By July 1, 1997, the commissioner shall appoint a 5.31 listed metals advisory council consisting of the following five 5.32 permanent members: a chair, a representative of government, a 5.33 representative of business, a representative of a citizens' 5.34 organization, and a representative from a relevant field of 5.35 academia. Temporary members of the council shall be appointed 5.36 by the commissioner under paragraph (f). No permanent or 6.1 temporary member of the council who is an employee of a 6.2 manufacturer or user of a specified product may sit in 6.3 consideration of that product. 6.4 (c) The council shall have the following duties: 6.5 (1) review reports submitted under subdivisions 6, 7, and 8 6.6 and provide advice to the commissioner pursuant to paragraph 6.7 (d); and 6.8 (2) report to the commissioner on October 1, 2000, and 6.9 October 1, 2005, on any reasonable measures that would allow the 6.10 criteria in paragraph (d) to be met with regard to products 6.11 reviewed based on information obtained during the review of 6.12 products. 6.13 (d) The council's advice to the commissioner under 6.14 paragraph (c), clause (1), shall be based on an evaluation of 6.15 the environmental impact of the product and the ability of the 6.16 manufacturer or user to reduce or eliminate the listed metal. 6.17 Before making a recommendation that the commissioner take action 6.18 under subdivision 9, the council must conclude that: 6.19 (1) there is an alternative to the specified product that 6.20 does not contain the listed metal that performs the same 6.21 technical function, is commercially available, and is 6.22 economically practicable; and 6.23 (2) replacement of the product with the alternative will 6.24 result in an environmental benefit in the state. 6.25 (e) A recommendation that the commissioner take action 6.26 under subdivision 9 shall include the information required by 6.27 section 14.131 to the extent the council, through reasonable 6.28 effort, can ascertain this information. 6.29 (f) Before the council evaluates a specific product or 6.30 group of products, the commissioner shall appoint temporary 6.31 council members in an even number up to six. The commissioner 6.32 shall seek to appoint as temporary members persons having 6.33 expertise on the product or group of products under review as 6.34 well as persons representing community interests. The temporary 6.35 members shall be voting members of the council on all matters 6.36 related to consideration of the product or group of products. 7.1 The terms of the temporary members shall expire when the council 7.2 has completed its review of the product or group of products and 7.3 has submitted its recommendation to the commissioner pursuant to 7.4 this subdivision. 7.5 (g) The permanent members of the council must prioritize 7.6 the council's review of a specific product or group of products 7.7 by publishing a notice in the State Register by October 1, 1998, 7.8 identifying those specified products, or groups of products, 7.9 which will be reviewed by July 1, 2000. By October 1, 2000, the 7.10 council shall publish a notice in the State Register identifying 7.11 those specified products, or groups of products, which will be 7.12 reviewed by July 1, 2005. The council shall consider potential 7.13 environmental impacts in prioritizing its review. The council 7.14 shall notify manufacturers and users who have submitted product 7.15 review reports of the appropriate review schedule. A 7.16 manufacturer who has submitted a product review report may 7.17 request an expedited review by the council. 7.18 (h) The commissioner shall provide staff and administrative 7.19 services to the council. Compensation and removal of council 7.20 members shall be as provided in section 15.059, subdivisions 3 7.21 and 4. The council shall dissolve on June 30, 2006. 7.22 Subd. 6. [PRODUCT REVIEW REPORTS.] (a) Except as provided 7.23 under subdivision 7, the manufacturer, or an association of 7.24 manufacturers, of any specified product distributed for sale or 7.25 use in this state that is not listed pursuant to subdivision 4 7.26 shall submit a product review report and fee as provided in 7.27 paragraph (c) to the commissioner for each product by July 1, 7.28 1998. Each product review report shall contain at least the 7.29 following: 7.30 (1) a policy statement articulating upper management 7.31 support for eliminating or reducing intentional introduction of 7.32 listed metals into its products; 7.33 (2) a description of the product and the amount of each 7.34 listed metal distributed for use in this state; 7.35 (3) a description of past and ongoing efforts to eliminate 7.36 or reduce the listed metal in the product; 8.1 (4) an assessment of options available to reduce or 8.2 eliminate the intentional introduction of the listed metal 8.3 including any alternatives to the specified product that do not 8.4 contain the listed metal, perform the same technical function, 8.5 are commercially available, and are economically practicable; 8.6 (5) a statement of objectives in numerical terms and a 8.7 schedule for achieving the elimination of the listed metals and 8.8 an environmental assessment of alternative products; 8.9 (6) a listing of options considered not to be technically 8.10 or economically practicable; and 8.11 (7) certification attesting to the accuracy of the 8.12 information in the report signed and dated by an official of the 8.13 manufacturer or user. 8.14 If the manufacturer fails to submit a product review report, a 8.15 user of a specified product may submit a report and fee which 8.16 comply with this subdivision by August 15, 1998. 8.17 (b) By July 1, 1999, and annually thereafter until the 8.18 commissioner takes action under subdivision 9, the manufacturer 8.19 or user must submit a progress report and fee as provided in 8.20 paragraph (c) updating the information presented under paragraph 8.21 (a). 8.22 (c) The fee shall be $295 for each report. The fee shall 8.23 be deposited in the state treasury and credited to the 8.24 environmental fund. 8.25 (d) Where it cannot be determined from a progress report 8.26 submitted by a person pursuant to Laws 1994, chapter 585, 8.27 section 30, subdivision 2, paragraph (e), the number of products 8.28 for which product review reports are due under this subdivision, 8.29 the commissioner shall have the authority to determine, after 8.30 consultation with that person, the number of products for which 8.31 product review reports are required. 8.32 (e) The commissioner shall summarize, aggregate, and 8.33 publish data reported under paragraphs (a) and (b) annually. 8.34 (f) A product that is the subject of a decision under 8.35 section 115A.965 is exempt from this section. 8.36 Subd. 7. [ESSENTIAL PRODUCTS; PUBLISHED LIST.] (a) By 9.1 January 1, 1998, a manufacturer or user of an essential product 9.2 must submit a certification to the commissioner that the product 9.3 meets the definition in subdivision 2, paragraph (c). By July 9.4 1, 2002, each manufacturer or user of an essential product shall 9.5 submit a report to the commissioner which includes the 9.6 information required in subdivision 6, paragraph (a), and a 9.7 statement of whether the product continues to meet the 9.8 definition in subdivision 2, paragraph (c). 9.9 (b) By October 1, 1998, the commissioner shall publish in 9.10 the State Register a list of essential products for which the 9.11 commissioner has received certification pursuant to this 9.12 subdivision. By October 1, 2002, the commissioner shall publish 9.13 in the State Register a list of essential products based on 9.14 reports submitted by July 1, 2002, as provided in paragraph (a). 9.15 Subd. 8. [NEW PRODUCTS; CRITERIA FOR REVIEW.] (a) After 9.16 July 1, 1998, but before July 1, 2005, no person shall sell, 9.17 distribute, or offer for sale in this state a new product prior 9.18 to the manufacturer or user submitting a product review report 9.19 and fee specified in subdivision 6. 9.20 (b) The council shall review reports submitted under this 9.21 subdivision and provide advice to the commissioner. The 9.22 council's advice to the commissioner under this subdivision 9.23 shall be based on an evaluation of the environmental impact of 9.24 the product and the ability of the manufacturer or user to 9.25 reduce or eliminate the listed metal. Before making a 9.26 recommendation that the commissioner take action under 9.27 subdivision 9, the council must conclude that: 9.28 (1) there is an alternative to the specified product that 9.29 does not contain the listed metal that performs the same 9.30 technical function, is commercially available, and is 9.31 economically practicable, and replacement of the product with 9.32 the alternative will result in an environmental benefit in the 9.33 state; or 9.34 (2) if there is no alternative to the new product, that the 9.35 use of the listed metal in the new product presents a 9.36 significant threat to the safe and efficient operation of waste 10.1 facilities, or use of the listed metal does not increase the 10.2 useful life span of the new product, reduce the overall toxicity 10.3 of the final product or of material used in production of the 10.4 final product, or otherwise provide a net environmental benefit 10.5 to the state. 10.6 (c) Notwithstanding subdivision 5, paragraph (f), where the 10.7 commissioner determines that a new product subject to paragraph 10.8 (a) is sufficiently similar to a product or products previously 10.9 reviewed by the council, the commissioner may authorize the 10.10 permanent members of the council to perform the duties 10.11 established in paragraph (b) without the appointment of 10.12 temporary members. In performing those duties, the council 10.13 shall utilize information gathered in any previous review of a 10.14 similar product or products. 10.15 (d) Beginning July 1, 2005, no person shall sell, 10.16 distribute, or offer for sale in this state a new product 10.17 without the commissioner's approval. A person seeking approval 10.18 of a new product shall submit a product review report including 10.19 the information and fee specified in subdivision 6. The 10.20 commissioner shall not approve the new product unless the 10.21 commissioner determines that it meets the criteria in paragraph 10.22 (b). The commissioner shall make a determination within six 10.23 months of receipt of a complete request. 10.24 Subd. 9. [AUTHORITY OF COMMISSIONER.] (a) The commissioner 10.25 may, upon the recommendation of the council, prohibit the 10.26 distribution for sale or use in this state of a specified 10.27 product that is not an essential product. 10.28 (b) Before taking action under this subdivision, the 10.29 commissioner must conclude that: 10.30 (1) there is an alternative to the specified product that 10.31 does not contain the listed metal that performs the same 10.32 technical function, is commercially available, and is 10.33 economically practicable, and replacement of the product with 10.34 the alternative will result in an environmental benefit to the 10.35 state; or 10.36 (2) if there is no alternative to the new product, that the 11.1 use of the listed metal in the new product presents a 11.2 significant threat to the safe and efficient operation of waste 11.3 facilities, or use of the listed metal does not increase the 11.4 useful life span of the new product, reduce the overall toxicity 11.5 of the final product or of material used in production of the 11.6 final product, or otherwise provide a net environmental benefit 11.7 to the state. 11.8 (c) If the commissioner fails to take action under this 11.9 subdivision as recommended by the council, the commissioner 11.10 shall submit a report to the legislature explaining the reasons 11.11 for not taking such action. 11.12 (d) The commissioner shall provide the legislature a report 11.13 and recommendations based on any report prepared by the council 11.14 under subdivision 5, paragraph (c), clause (2). 11.15 Subd. 10. [APPLICATION; ENFORCEMENT.] (a) This section 11.16 does not apply to art supplies. 11.17 (b) This section may be enforced under sections 115.071 and 11.18 116.072. The attorney general or the commissioner of the agency 11.19 shall coordinate enforcement of this section with the director 11.20 of the office. 11.21 Subd. 11. [RULEMAKING AUTHORITY.] (a) The pollution 11.22 control agency may adopt, amend, suspend, and repeal rules to 11.23 implement this section. 11.24 (b) Publication of notice under subdivision 5, paragraph 11.25 (g), shall be deemed to satisfy the requirements of section 11.26 14.101. 11.27 (c) The commissioner may adopt a council recommendation 11.28 under subdivision 5 as the agency's statement of need and 11.29 reasonableness. A recommendation adopted in this manner shall 11.30 be deemed to satisfy any content requirements for a statement of 11.31 need and reasonableness imposed by law. 11.32 (d) Any hearings on rules adopted under this section shall 11.33 be conducted in accordance with sections 14.14 to 14.20 and 11.34 address whether the rule meets the standards for review under 11.35 which the judge is required to approve or disapprove the rule. 11.36 (e) Section 14.125 does not apply to the agency's 12.1 rulemaking authority under this section. 12.2 (f) A rule adopted under this section is effective until 12.3 repealed by the agency. 12.4 Sec. 2. [EFFECTIVE DATE.] 12.5 Section 1 is effective the day following final enactment.