Office of the Revisor of Statutes
Minnesota Session Laws - 1997, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 221-S.F.No. 184
An act relating to the environment; modifying
requirements relating to toxics in products; amending
Minnesota Statutes 1996, section 115A.9651.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1996, section 115A.9651, is
amended to read:
115A.9651 [TOXICS LISTED METALS IN SPECIFIED PRODUCTS;
ENFORCEMENT.]
Subdivision 1. [PROHIBITION.] (a) Except as provided in
paragraphs (d) and (e), no person may distribute for sale or use
in this state any ink, dye, pigment, paint, or fungicide
manufactured after September 1, 1994, into which lead, cadmium,
mercury, or hexavalent chromium has been intentionally
introduced.
(b) For the purposes of this subdivision, "intentionally
introduce" means to deliberately use a metal listed in paragraph
(a) as an element during manufacture or distribution of an item
listed in paragraph (a). Intentional introduction does not
include the incidental presence of any of the prohibited
elements.
(c) The concentration of a listed metal in an item listed
in paragraph (a) may not exceed 100 parts per million.
(d) The prohibition on the use of lead in substances
utilized in marking road, street, highway, and bridge pavements
does not take effect until July 1, 1998.
(e) The use of lead in substances utilized in marking road,
street, highway, and bridge pavements is exempt from this
subdivision until July 1, 1998. After July 1, 1998, no person
may distribute a listed product for sale or use in this state.
Subd. 2. [TEMPORARY EXEMPTION.] (a) An item listed in
subdivision 1 is exempt from this section until July 1, 1998, if
the manufacturer of the item submitted to the commissioner a
written request for an exemption by August 1, 1994. The request
must include at least:
(1) an explanation of why compliance is not technically
feasible at the time of the request;
(2) how the manufacturer will comply by July 1, 1997; and
(3) the name, address, and telephone number of a person the
commissioner can contact for further information.
(b) By September 1, 1994, a person who uses an item listed
in subdivision 1, into which one of the listed metals has been
intentionally introduced, may submit, on behalf of the
manufacturer, a request for temporary exemption only if the
manufacturer fails to submit an exemption request as provided in
paragraph (a). The request must include:
(1) an explanation of why the person must continue to use
the item and a discussion of potential alternatives;
(2) an explanation of why it is not technically feasible at
the time of the request to formulate or manufacture the item
without intentionally introducing a listed metal;
(3) that the person will seek alternatives to using the
item by July 1, 1997, if it still contains an intentionally
introduced listed metal; and
(4) the name, address, and telephone number of a person the
commissioner can contact for further information.
(c) A person who submits a request for temporary exemption
under paragraph (b) may submit a request for a temporary
exemption after September 1, 1994, for an item that the person
will use as an alternative to the item for which the request was
originally made as long as the new item has a total
concentration level of all the listed metals that is
significantly less than in the original item. An exemption
under this paragraph expires July 1, 1998, and the person who
requests it must submit the progress description required in
paragraph (e).
(d) By October 1, 1994, and annually thereafter if requests
are received under paragraph (c), the commissioner shall submit
to the environment and natural resources committees of the
senate and house of representatives, the finance division of the
senate committee on environment and natural resources, and the
house of representatives committee on environment and natural
resources finance a list of manufacturers and persons that have
requested an exemption under this subdivision and the items for
which exemptions were sought, along with copies of the requests.
(e) By July 1, 1996, each manufacturer on the list shall
submit to the commissioner a description of the progress the
manufacturer has made toward compliance with subdivision 1, and
the date compliance has been achieved or the date on or before
July 1, 1998, by which the manufacturer anticipates achieving
compliance. By July 1, 1996, each person who has requested an
exemption under paragraph (b) or (c) shall submit to the
commissioner:
(1) a description of progress made to eliminate the listed
metal or metals from the item or progress made by the person to
find a replacement item that does not contain an intentionally
introduced listed metal; and
(2) the date or anticipated date the item is or will be
free of intentionally introduced metals or the date the person
has stopped or will stop using the item.
By October 1, 1996, the commissioner shall submit to the
environment and natural resources committees of the senate and
house of representatives, the finance division of the senate
committee on environment and natural resources, and the house of
representatives committee on environment and natural resources
finance a summary of the progress made by the manufacturers and
other persons and any recommendations for appropriate
legislative or other action to ensure that products are not
distributed in the state after July 1, 1998, that violate
subdivision 1.
Subd. 2. [DEFINITIONS.] (a) For the purposes of this
section, the following terms have the meanings given them.
(b) "Council" means the council established under
subdivision 5.
(c) "Essential product" means a specified product into
which the introduction of a listed metal is required under
military specifications or to ensure the integrity of a product
essential for aviation or railroad safety, and which is being
used only in that application.
(d) "Intentionally introduce" means to deliberately use a
listed metal as an element during manufacture or distribution of
a specified product. Intentional introduction does not include
the incidental presence of a listed metal.
(e) "Listed metal" means lead, cadmium, mercury, or
hexavalent chromium.
(f) "Listed product" means a specified product that is
included on the prohibited products list published under
subdivision 4.
(g) "New product" means a specified product which was not
used, sold, or distributed in the state before July 2, 1998, or
which has been reformulated so that it contains more of a listed
metal.
(h) "Official" means an officer of a corporation, a general
partner of a partnership or limited partnership, a sole
proprietor, or, in the case of any other entity, a person with
high level management responsibilities.
(i) "Specified product" means an ink, dye, pigment, paint,
or fungicide into which a listed metal has been intentionally
introduced or in which the incidental presence of a listed metal
exceeds a concentration of 100 parts per million.
Subd. 3. [APPLICATION; ENFORCEMENT CERTIFICATION OF
COMPLIANCE.] (a) This section does not apply to art supplies.
(b) This section may be enforced under sections 115.071 and
116.072. The attorney general or the commissioner of the agency
shall coordinate enforcement of this section with the director
of the office. By July 1, 1998, each person who has filed the
progress report specified in Laws 1994, chapter 585, section 30,
subdivision 2, paragraph (e), indicating compliance would be
achieved by July 1, 1998, shall certify to the commissioner that
the products referenced in that report have been reformulated
and no longer meet the definition of a specified product. The
certification must be in writing and signed by an official of
the company. If, due to significant change in circumstances,
the person cannot so certify by July 1, 1998, a product review
report and fee shall be submitted as provided under subdivision
6.
(b) The person submitting the certification shall keep a
copy on file and make copies available to the commissioner or
the attorney general upon request or to any member of the public
within 60 days of receipt of a written request that specifies
the type of product for which the information is requested.
Subd. 4. [PROHIBITED PRODUCTS LIST.] By October 1, 1998,
the commissioner shall publish in the State Register a list of
specified products for which the commissioner has received
certifications as provided under subdivision 3.
Subd. 5. [LISTED METALS ADVISORY COUNCIL.] (a) The purpose
of the listed metals advisory council is to promote sustainable
development, as defined in section 4A.07, the public health and
welfare and protect the environment and the state's economy by
removing listed metals from specified products so that the
listed metals do not contribute to bioaccumulation and burden
taxpayers with unnecessary disposal costs.
(b) By July 1, 1997, the commissioner shall appoint a
listed metals advisory council consisting of the following five
permanent members: a chair, a representative of government, a
representative of business, a representative of a citizens'
organization, and a representative from a relevant field of
academia. Temporary members of the council shall be appointed
by the commissioner under paragraph (f). No permanent or
temporary member of the council who is an employee of a
manufacturer or user of a specified product may sit in
consideration of that product.
(c) The council shall have the following duties:
(1) review reports submitted under subdivisions 6, 7, and 8
and provide advice to the commissioner pursuant to paragraph
(d); and
(2) report to the commissioner on October 1, 2000, and
October 1, 2005, on any reasonable measures that would allow the
criteria in paragraph (d) to be met with regard to products
reviewed based on information obtained during the review of
products.
(d) The council's advice to the commissioner under
paragraph (c), clause (1), shall be based on an evaluation of
the environmental impact of the product and the ability of the
manufacturer or user to reduce or eliminate the listed metal.
Before making a recommendation that the commissioner take action
under subdivision 9, the council must conclude that:
(1) there is an alternative to the specified product that
does not contain the listed metal that performs the same
technical function, is commercially available, and is
economically practicable; and
(2) replacement of the product with the alternative will
result in an environmental benefit in the state.
(e) A recommendation that the commissioner take action
under subdivision 9 shall include the information required by
section 14.131 to the extent the council, through reasonable
effort, can ascertain this information.
(f) Before the council evaluates a specific product or
group of products, the commissioner shall appoint temporary
council members in an even number up to six. The commissioner
shall seek to appoint as temporary members persons having
expertise on the product or group of products under review as
well as persons representing community interests. The temporary
members shall be voting members of the council on all matters
related to consideration of the product or group of products.
The terms of the temporary members shall expire when the council
has completed its review of the product or group of products and
has submitted its recommendation to the commissioner pursuant to
this subdivision.
(g) The permanent members of the council must prioritize
the council's review of a specific product or group of products
by publishing a notice in the State Register by October 1, 1998,
identifying those specified products, or groups of products,
which will be reviewed by July 1, 2000. By October 1, 2000, the
council shall publish a notice in the State Register identifying
those specified products, or groups of products, which will be
reviewed by July 1, 2005. The council shall consider potential
environmental impacts in prioritizing its review. The council
shall notify manufacturers and users who have submitted product
review reports of the appropriate review schedule. A
manufacturer who has submitted a product review report may
request an expedited review by the council.
(h) The commissioner shall provide staff and administrative
services to the council. Compensation and removal of council
members shall be as provided in section 15.059, subdivisions 3
and 4. The council shall dissolve on June 30, 2006.
Subd. 6. [PRODUCT REVIEW REPORTS.] (a) Except as provided
under subdivision 7, the manufacturer, or an association of
manufacturers, of any specified product distributed for sale or
use in this state that is not listed pursuant to subdivision 4
shall submit a product review report and fee as provided in
paragraph (c) to the commissioner for each product by July 1,
1998. Each product review report shall contain at least the
following:
(1) a policy statement articulating upper management
support for eliminating or reducing intentional introduction of
listed metals into its products;
(2) a description of the product and the amount of each
listed metal distributed for use in this state;
(3) a description of past and ongoing efforts to eliminate
or reduce the listed metal in the product;
(4) an assessment of options available to reduce or
eliminate the intentional introduction of the listed metal
including any alternatives to the specified product that do not
contain the listed metal, perform the same technical function,
are commercially available, and are economically practicable;
(5) a statement of objectives in numerical terms and a
schedule for achieving the elimination of the listed metals and
an environmental assessment of alternative products;
(6) a listing of options considered not to be technically
or economically practicable; and
(7) certification attesting to the accuracy of the
information in the report signed and dated by an official of the
manufacturer or user.
If the manufacturer fails to submit a product review report, a
user of a specified product may submit a report and fee which
comply with this subdivision by August 15, 1998.
(b) By July 1, 1999, and annually thereafter until the
commissioner takes action under subdivision 9, the manufacturer
or user must submit a progress report and fee as provided in
paragraph (c) updating the information presented under paragraph
(a).
(c) The fee shall be $295 for each report. The fee shall
be deposited in the state treasury and credited to the
environmental fund.
(d) Where it cannot be determined from a progress report
submitted by a person pursuant to Laws 1994, chapter 585,
section 30, subdivision 2, paragraph (e), the number of products
for which product review reports are due under this subdivision,
the commissioner shall have the authority to determine, after
consultation with that person, the number of products for which
product review reports are required.
(e) The commissioner shall summarize, aggregate, and
publish data reported under paragraphs (a) and (b) annually.
(f) A product that is the subject of a decision under
section 115A.965 is exempt from this section.
Subd. 7. [ESSENTIAL PRODUCTS; PUBLISHED LIST.] (a) By
January 1, 1998, a manufacturer or user of an essential product
must submit a certification to the commissioner that the product
meets the definition in subdivision 2, paragraph (c). By July
1, 2002, each manufacturer or user of an essential product shall
submit a report to the commissioner which includes the
information required in subdivision 6, paragraph (a), and a
statement of whether the product continues to meet the
definition in subdivision 2, paragraph (c).
(b) By October 1, 1998, the commissioner shall publish in
the State Register a list of essential products for which the
commissioner has received certification pursuant to this
subdivision. By October 1, 2002, the commissioner shall publish
in the State Register a list of essential products based on
reports submitted by July 1, 2002, as provided in paragraph (a).
Subd. 8. [NEW PRODUCTS; CRITERIA FOR REVIEW.] (a) After
July 1, 1998, but before July 1, 2005, no person shall sell,
distribute, or offer for sale in this state a new product prior
to the manufacturer or user submitting a product review report
and fee specified in subdivision 6.
(b) The council shall review reports submitted under this
subdivision and provide advice to the commissioner. The
council's advice to the commissioner under this subdivision
shall be based on an evaluation of the environmental impact of
the product and the ability of the manufacturer or user to
reduce or eliminate the listed metal. Before making a
recommendation that the commissioner take action under
subdivision 9, the council must conclude that:
(1) there is an alternative to the specified product that
does not contain the listed metal that performs the same
technical function, is commercially available, and is
economically practicable, and replacement of the product with
the alternative will result in an environmental benefit in the
state; or
(2) if there is no alternative to the new product, that the
use of the listed metal in the new product presents a
significant threat to the safe and efficient operation of waste
facilities, or use of the listed metal does not increase the
useful life span of the new product, reduce the overall toxicity
of the final product or of material used in production of the
final product, or otherwise provide a net environmental benefit
to the state.
(c) Notwithstanding subdivision 5, paragraph (f), where the
commissioner determines that a new product subject to paragraph
(a) is sufficiently similar to a product or products previously
reviewed by the council, the commissioner may authorize the
permanent members of the council to perform the duties
established in paragraph (b) without the appointment of
temporary members. In performing those duties, the council
shall utilize information gathered in any previous review of a
similar product or products.
(d) Beginning July 1, 2005, no person shall sell,
distribute, or offer for sale in this state a new product
without the commissioner's approval. A person seeking approval
of a new product shall submit a product review report including
the information and fee specified in subdivision 6. The
commissioner shall not approve the new product unless the
commissioner determines that it meets the criteria in paragraph
(b). The commissioner shall make a determination within six
months of receipt of a complete request.
Subd. 9. [AUTHORITY OF COMMISSIONER.] (a) The commissioner
may, upon the recommendation of the council, prohibit the
distribution for sale or use in this state of a specified
product that is not an essential product.
(b) Before taking action under this subdivision, the
commissioner must conclude that:
(1) there is an alternative to the specified product that
does not contain the listed metal that performs the same
technical function, is commercially available, and is
economically practicable, and replacement of the product with
the alternative will result in an environmental benefit to the
state; or
(2) if there is no alternative to the new product, that the
use of the listed metal in the new product presents a
significant threat to the safe and efficient operation of waste
facilities, or use of the listed metal does not increase the
useful life span of the new product, reduce the overall toxicity
of the final product or of material used in production of the
final product, or otherwise provide a net environmental benefit
to the state.
(c) If the commissioner fails to take action under this
subdivision as recommended by the council, the commissioner
shall submit a report to the legislature explaining the reasons
for not taking such action.
(d) The commissioner shall provide the legislature a report
and recommendations based on any report prepared by the council
under subdivision 5, paragraph (c), clause (2).
Subd. 10. [APPLICATION; ENFORCEMENT.] (a) This section
does not apply to art supplies.
(b) This section may be enforced under sections 115.071 and
116.072. The attorney general or the commissioner of the agency
shall coordinate enforcement of this section with the director
of the office.
Subd. 11. [RULEMAKING AUTHORITY.] (a) The pollution
control agency may adopt, amend, suspend, and repeal rules to
implement this section.
(b) Publication of notice under subdivision 5, paragraph
(g), shall be deemed to satisfy the requirements of section
14.101.
(c) The commissioner may adopt a council recommendation
under subdivision 5 as the agency's statement of need and
reasonableness. A recommendation adopted in this manner shall
be deemed to satisfy any content requirements for a statement of
need and reasonableness imposed by law.
(d) Any hearings on rules adopted under this section shall
be conducted in accordance with sections 14.14 to 14.20 and
address whether the rule meets the standards for review under
which the judge is required to approve or disapprove the rule.
(e) Section 14.125 does not apply to the agency's
rulemaking authority under this section.
(f) A rule adopted under this section is effective until
repealed by the agency.
Sec. 2. [EFFECTIVE DATE.]
Section 1 is effective the day following final enactment.
Presented to the governor May 27, 1997
Signed by the governor May 30, 1997, 1:12 p.m.
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Revisor of Statutes