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115A.9651 LISTED METALS IN SPECIFIED PRODUCTS; ENFORCEMENT.
    Subdivision 1. Prohibition. After July 1, 1998, no person may distribute a listed product
for sale or use in this state.
    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. Certification of compliance. (a) 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.[Repealed, 2007 c 133 art 2 s 13]
    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. The fee is exempt from section 16A.1285.
(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 recommendation by the Toxics in Packaging
Clearinghouse, as administered by the Council of State Governments, 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.
    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.
History: 1991 c 337 s 51; 1993 c 249 s 25; 1993 c 366 s 7; 1994 c 585 s 30; 1995 c 247 art
1 s 28; 1996 c 455 art 3 s 1; 1996 c 470 s 16,27; 1997 c 221 s 1; 2000 c 370 s 3; 2003 c 128
art 2 s 6; 1Sp2005 c 1 art 2 s 161

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Revisor of Statutes