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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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