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Minnesota Legislature

Office of the Revisor of Statutes

SF 651

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to the environment; restricting the manufacture and sale of certain
polybrominated diphenyl ethers; requiring a report; providing penalties;
proposing coding for new law in Minnesota Statutes, chapter 325E.

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

Section 1.

new text begin [325E.385] PRODUCTS CONTAINING POLYBROMINATED
DIPHENYL ETHER.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For the purposes of sections 325E.386 to 325E.388,
the terms in this section have the meanings given them.
new text end

new text begin Subd. 2. new text end

new text begin Commercial decabromodiphenyl ether. new text end

new text begin "Commercial
decabromodiphenyl ether" means the chemical mixture of decabromodiphenyl ether,
including associated polybrominated diphenyl ether impurities not intentionally added.
No single polybrominated diphenyl ether impurity shall exceed one percent by mass of the
mixture, and the combination of all polybrominated diphenyl ether impurities shall not
exceed four percent by mass of the mixture.
new text end

new text begin Subd. 3. new text end

new text begin Commissioner. new text end

new text begin "Commissioner" means the commissioner of the Pollution
Control Agency.
new text end

new text begin Subd. 4. new text end

new text begin Computer. new text end

new text begin "Computer" means an electronic, magnetic, optical,
electrochemical, or other high-speed data processing device performing logical, arithmetic,
or storage functions, but does not include an automated typewriter or typesetter, a portable
hand-held calculator or device, or other similar device.
new text end

new text begin Subd. 5. new text end

new text begin Electronic enclosure. new text end

new text begin "Electronic enclosure" means the plastic housing
that encloses the components of electronic products, including, but not limited to,
televisions and computers.
new text end

new text begin Subd. 6. new text end

new text begin Manufacturer. new text end

new text begin "Manufacturer" means any person, firm, association,
partnership, corporation, governmental entity, organization, or joint venture that produces
a product containing polybrominated diphenyl ethers or an importer or domestic
distributor of a noncomestible product containing polybrominated diphenyl ethers. A
manufacturer does not include a retailer:
new text end

new text begin (1) of a private label brand or cobranding; or
new text end

new text begin (2) who assembles components to create a single electronic product based on an
individual consumer preference.
new text end

new text begin Subd. 7. new text end

new text begin Polybrominated diphenyl ethers or PBDE's. new text end

new text begin "Polybrominated diphenyl
ethers" or "PBDE's" means chemical forms that consist of diphenyl ethers bound with
bromine atoms. Polybrominated diphenyl ethers include, but are not limited to, the
three primary forms of the commercial mixtures known as pentabromodiphenyl ether,
octabromodiphenyl ether, and decabromodiphenyl ether.
new text end

new text begin Subd. 8. new text end

new text begin Retailer. new text end

new text begin "Retailer" means a person who offers a product for sale at retail
through any means, including, but not limited to, remote offerings such as sales outlets,
catalogs, or the Internet, but does not include a sale that is a wholesale transaction with a
distributor or a retailer. A retailer does not include a person, firm, association, partnership,
corporation, governmental entity, organization, or joint venture that both manufactures
and sells a product for retail.
new text end

new text begin Subd. 9. new text end

new text begin Television. new text end

new text begin "Television" means an electronic device that is a cathode-ray
tube or flat panel display primarily intended to receive video programming via broadcast,
cable, or satellite transmission or video from surveillance or other similar cameras.
new text end

new text begin Subd. 10. new text end

new text begin Transportation vehicle. new text end

new text begin "Transportation vehicle" means any mechanized
vehicle that is used to transport goods or people, including, but not limited to, airplanes,
automobiles, motorcycles, trucks, buses, trains, boats, ships, streetcars, or monorail cars.
new text end

new text begin Subd. 11. new text end

new text begin Used product. new text end

new text begin "Used product" means any product that has been
previously owned, purchased, or sold in commerce. Used product does not include any
product manufactured after January 1, 2008.
new text end

Sec. 2.

new text begin [325E.386] PRODUCTS CONTAINING CERTAIN POLYBROMINATED
DIPHENYL ETHERS BANNED; EXEMPTIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Penta and octadiphenyl ethers. new text end

new text begin Except as provided in subdivision
3, beginning January 1, 2008, a person may not manufacture, process, or distribute in
commerce a product or flame-retardant part of a product containing more than one-tenth
of one percent of pentadiphenyl ether or octadiphenyl ether by mass.
new text end

new text begin Subd. 2. new text end

new text begin Decabromodiphenyl ether in electronics and textiles. new text end

new text begin Except as
provided in subdivision 3, beginning July 1, 2012, a person may not manufacture, process,
or distribute in commerce any of the following products:
new text end

new text begin (1) a television or computer with an electronic enclosure that contains commercial
decabromodiphenyl ether;
new text end

new text begin (2) upholstered furniture or textiles intended for indoor use in a home or other
residential occupancy that contain commercial decabromodiphenyl ether; or
new text end

new text begin (3) mattresses and mattress pads that contain commercial decabromodiphenyl ether.
new text end

new text begin Subd. 3. new text end

new text begin Exemptions. new text end

new text begin The following products containing polybrominated diphenyl
ethers are exempt from subdivisions 1 and 2:
new text end

new text begin (1) the sale or distribution of any used transportation vehicle with component parts
containing polybrominated diphenyl ethers;
new text end

new text begin (2) the sale or distribution of any used transportation vehicle parts or new
transportation vehicle parts manufactured before January 1, 2008, that contain
polybrominated diphenyl ethers;
new text end

new text begin (3) the manufacture, sale, repair, distribution, maintenance, refurbishment, or
modification of equipment containing polybrominated diphenyl ethers and used primarily
for military or federally funded space program applications. This exemption does not
cover consumer-based goods with broad applicability;
new text end

new text begin (4) the sale or distribution by a business, charity, public entity, or private party of
any used product containing polybrominated diphenyl ethers;
new text end

new text begin (5) the manufacture, sale, or distribution of new carpet cushion made from recycled
foam containing more than one-tenth of one percent penta polybrominated diphenyl
ether; or
new text end

new text begin (6) medical devices.
new text end

new text begin In-state retailers in possession of products on January 1, 2008, that are banned for
sale under subdivisions 1 and 2 may exhaust their stock through sales to the public.
new text end

new text begin Nothing in this section restricts the ability of a manufacturer, importer, or distributor
from transporting products containing polybrominated diphenyl ethers through the state,
or storing the products in the state for later distribution outside the state.
new text end

Sec. 3.

new text begin [325E.387] REVIEW OF DECABROMODIPHENYL ETHER.
new text end

new text begin Subdivision 1. new text end

new text begin Commissioner duties. new text end

new text begin At least every two years, the commissioner
and the commissioner of health shall review uses of commercial decabromodiphenyl
ether, availability of technically feasible alternatives, and any new evidence regarding
the potential harm to public health and the environment posed by commercial
decabromodiphenyl ether. The commissioners shall make recommendations to the
legislature on additional bans and restrictions to reduce and phase out the manufacture,
sale, or distribution of noncomestible products containing commercial decabromodiphenyl
ether. The commissioners shall report their findings and recommendations to the
appropriate committees of the legislature no later than January 1, 2008, and every two
years after that date.
new text end

new text begin Subd. 2. new text end

new text begin Participation in interstate clearinghouse. new text end

new text begin The commissioner is
authorized to participate in a regional or national multistate clearinghouse to assist in
carrying out the requirements of this section. The clearinghouse is authorized to maintain
information on behalf of Minnesota, including, but not limited to:
new text end

new text begin (1) a list of all products containing polybrominated diphenyl ethers; and
new text end

new text begin (2) information on all exemptions granted by the state.
new text end

new text begin Subd. 3. new text end

new text begin State procurement. new text end

new text begin By January 1, 2008, the commissioner of
administration shall make available for purchase and use by all state agencies only
equipment, supplies, and other products that do not contain polybrominated diphenyl
ethers, unless exempted under section 325E.386, subdivision 3, or section 325E.388,
subdivision 1.
new text end

Sec. 4.

new text begin [325E.388] EXEMPTIONS; FEES; PENALTIES.
new text end

new text begin Subdivision 1. new text end

new text begin Exemption process. new text end

new text begin (a) A manufacturer or user of a product
prohibited from manufacture, sale, or distribution under section 325E.386, subdivision 2,
who has not received an exemption under section 325E.386, subdivision 3, may apply
for an exemption for a specific use of commercial decabromodiphenyl ether under this
section by filing a written request with the commissioner. The commissioner may grant an
exemption for a term not to exceed three years. The exemption is renewable upon written
request. An initial or renewal request for exemption must include at least the following:
new text end

new text begin (1) a policy statement articulating upper management support for eliminating or
reducing to the maximum feasible extent the use of commercial decabromodiphenyl ether;
new text end

new text begin (2) a description of the product and the amount of commercial decabromodiphenyl
ether distributed for sale and use in the state on an annual basis;
new text end

new text begin (3) a description of the recycling and disposal system used for the product in the
state and an estimate of the amount of product and/or commercial decabromodiphenyl
ether recycled or disposed of in the state on an annual basis;
new text end

new text begin (4) a description of the manufacturer's or user's past and ongoing efforts to eliminate
or reduce the amount of commercial decabromodiphenyl ether used in the product;
new text end

new text begin (5) an assessment of options available to reduce or eliminate the use of commercial
decabromodiphenyl ether, including any alternatives that do not contain commercial
decabromodiphenyl ether, perform the same technical function, are commercially
available, and are economically practicable;
new text end

new text begin (6) a statement of objectives in numerical terms and a schedule for achieving the
elimination of commercial decabromodiphenyl ether and an environmental assessment of
alternative products, including, but not limited to, human health, solid waste, hazardous
waste, and waste water impacts associated with production, use, recycling, and disposal
of the alternatives;
new text end

new text begin (7) a listing of options considered not to be technically or economically practicable;
and
new text end

new text begin (8) certification of the accuracy of the information contained in the request, signed
and dated by an official of the manufacturer or user.
new text end

new text begin (b) The commissioner may grant an initial or renewal exemption for a specific use of
commercial decabromodiphenyl ether, with or without conditions, upon finding that the
applicant has demonstrated that there is no alternative that performs the same technical
function, is commercially available, is economically practicable, and provides net health
and environmental benefits to the state.
new text end

new text begin Subd. 2. new text end

new text begin Labeling and positive recognition. new text end

new text begin The commissioner may establish a
"PBDE-Free" product labeling program for products that do not contain polybrominated
diphenyl ethers. The commissioner may establish partnerships with manufacturers of
polybrominated diphenyl ethers to enhance the market for products that do not contain
polybrominated diphenyl ethers and reduce the use of polybrominated diphenyl ethers
in products. The commissioner may develop an awards program to recognize the
accomplishments of manufacturers who exceed the requirements of sections 325E.386 to
325E.388 and who excel at reducing or eliminating decabromodiphenyl ether in products
and the environment.
new text end

new text begin Subd. 3. new text end

new text begin Fees for exemption applicants. new text end

new text begin The commissioner shall establish an
application fee for an exemption under this section. Fees must be used to implement
and enforce this section.
new text end

new text begin Subd. 4. new text end

new text begin Penalties. new text end

new text begin A manufacturer who violates sections 325E.386 to 325E.388
is subject to a civil penalty not to exceed $1,000 for each violation in the case of a first
offense. A manufacturer is subject to a civil penalty not to exceed $5,000 for each repeat
offense. Penalties collected under this section must be used by the commissioner to
implement and enforce this section.
new text end