senate Bill S3628A

Restricts the use of decabromodiphenyl ether in certain products

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 28 / Feb / 2011
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 04 / Jan / 2012
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 23 / Jan / 2012
    • AMEND AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
  • 23 / Jan / 2012
    • PRINT NUMBER 3628A

Summary

Restricts the use of decabromodiphenyl ether in certain products.

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Bill Details

Versions:
S3628
S3628A
Legislative Cycle:
2011-2012
Current Committee:
Senate Environmental Conservation
Law Section:
Environmental Conservation Law
Laws Affected:
Amd §37-0101, add §37-0115, En Con L
Versions Introduced in 2009-2010 Legislative Cycle:
S177

Sponsor Memo

BILL NUMBER:S3628A

TITLE OF BILL:
An act
to amend the environmental conservation law, in relation to restricting
the use of certain ethers in certain products

PURPOSE OR GENERAL IDEA OF BILL:
To protect the environment and public health by prohibiting the
manufacture, process or distribution of the brominated flame
retardant decabrominated diphenyl ether (decaBDE).

SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill defines "covered electronic device" and
"Decabromodiphenyl ether." section two of the bill adds a new section
37-0113 to prohibit, after July 2, 2010, the manufacture, process or
distribution of the following products containing commercial decaBDE:

* covered electronic devices;

* upholstered furniture or textiles for indoor residential use;

* mattresses and mattress pads

Exemptions would be provided for the following products:

* transportation vehicles

* military or federally funded space program equipment

* used products sold or distributed by a business, charity or private
party;

* medical devices.

Section two would also require the Commissioner of the Department of
Environmental conservation (DEC) and the Commissioner of Health to
review the availability of alternatives to decaBDE and make
recommendations to the Legislature no later than January 1, 2010. In
addition, the DEC commissioner would be authorized to grant an
exemption to the decaBDE prohibition upon a finding that there is no
other technically feasible alternative or that the potential harm to
public health and the environment posed by an alternative is greater
than the potential, harm posed by decaBDE.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
This legislation adds subdivisions (7) and (8) to §37-0101 as well as
a new §37-0115 to the Environmental Conservation Law.

JUSTIFICATION:

Chapter 387 of 2004 prohibited the manufacture, process, or
distribution of two forms of brominated flame retardants known as
pentabrominated diphenyl ether (pentaBDE) and octabrominated diphenyl
ether (octaBDE) due to their prevalence in the environment and
research suggesting that they cause permanent neurological and
developmental damage including deficits in learning, memory and
hearing, changes in behavior, and delays in sensory-motor
development. A third form of PBDE, decabrominated diphenyl
ether{decaBDE), has been the most widely used of the three
formulations, exceeding 60,000 metric tons worldwide with 40 percent
of the use occurring here in North America, It has widespread
persistence in the environment and our homes, accumulating in dust,
food, and our bodies, as shown in samples of blood and breast milk.
DecaBDE has been shown to pose the same public health dangers as its
banned counterparts. DecaBDE also breaks down, either by natural
environmental processes or when metabilized, into PBDE congeners that
are predominantly found in the now prohibited pentaBDE and octaBDE.

PRIOR LEGISLATIVE HISTORY:
2010: S.177-A Held in Environmental Conservation
A.7977-A (Sweeney) - Passed Assembly.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
This act shall take effect July 1, 2013.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3628--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 28, 2011
                               ___________

Introduced by Sens. ADAMS, AVELLA -- read twice and ordered printed, and
  when printed to be committed to the Committee on Environmental Conser-
  vation  --  recommitted to the Committee on Environmental Conservation
  in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  restricting the use of certain ethers in certain products

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  37-0101 of the environmental conservation law is
amended by adding two new subdivisions 7 and 8 to read as follows:
  7. "COVERED ELECTRONIC DEVICE" MEANS A DESKTOP OR  PERSONAL  COMPUTER,
COMPUTER  MONITOR,  PORTABLE COMPUTER, CATHODE RAY TUBE BASED TELEVISION
OR A TELEVISION THAT IS NOT CATHODE RAY TUBE BASED.
  8. "DECABROMODIPHENYL ETHER" MEANS THE CHEMICAL MIXTURE  PREDOMINATELY
COMPRISED  OF DECABROMODIPHENYL ETHER, AND INCLUDING ASSOCIATED POLYBRO-
MINATED DIPHENYL ETHER IMPURITIES NOT INTENTIONALLY ADDED.
  S 2. The environmental conservation law is amended  by  adding  a  new
section 37-0115 to read as follows:
S 37-0115. RESTRICTION  OF  DECABROMODIPHENYL  ETHER  IN ELECTRONICS AND
             TEXTILES.
  1. LEGISLATIVE INTENT. THE LEGISLATURE FINDS AND DECLARES ALL  OF  THE
FOLLOWING:  POLYBROMINATED DIPHENYL ETHERS (PBDES) HAVE BEEN USED EXTEN-
SIVELY AS FLAME  RETARDANTS  IN  A  LARGE  NUMBER  OF  COMMON  HOUSEHOLD
PRODUCTS  FOR  THE PAST THIRTY YEARS. STUDIES ON ANIMALS SHOW THAT PBDES
CAN IMPACT THE DEVELOPING BRAIN, AFFECTING BEHAVIOR AND  LEARNING  AFTER
BIRTH  AND  INTO  ADULTHOOD,  MAKING  EXPOSURE TO FETUSES AND CHILDREN A
PARTICULAR CONCERN. LEVELS OF PBDES ARE INCREASING IN PEOPLE, AND IN THE
ENVIRONMENT, PARTICULARLY  IN  NORTH  AMERICA.  BECAUSE  PEOPLE  CAN  BE
EXPOSED  TO THESE CHEMICALS THROUGH HOUSE DUST AND INDOOR AIR AS WELL AS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07519-02-1

S. 3628--A                          2

THROUGH FOOD, IT IS IMPORTANT TO PHASE OUT THEIR USE IN COMMON HOUSEHOLD
PRODUCTS, PROVIDED THAT EFFECTIVE FLAME RETARDANTS THAT  ARE  SAFER  AND
TECHNICALLY FEASIBLE ARE AVAILABLE AT A REASONABLE COST.
  2.  PROHIBITION.  EXCEPT  AS  PROVIDED  IN  SUBDIVISION  THREE OF THIS
SECTION, ON AND AFTER JULY FIRST, TWO THOUSAND FOURTEEN,  A  PERSON  MAY
NOT MANUFACTURE, PROCESS, OR DISTRIBUTE IN COMMERCE ANY OF THE FOLLOWING
PRODUCTS IF THEY CONTAIN COMMERCIAL DECABROMODIPHENYL ETHER:
  A. COVERED ELECTRONIC DEVICES;
  B. UPHOLSTERED FURNITURE OR TEXTILES INTENDED FOR INDOOR USE IN A HOME
OR OTHER RESIDENTIAL OCCUPANCY; OR
  C. MATTRESSES AND MATTRESS PADS.
  3.  EXEMPTION. THE FOLLOWING PRODUCTS CONTAINING POLYBROMINATED DIPHE-
NYL ETHERS ARE EXEMPT FROM THE PROVISIONS OF  SUBDIVISION  TWO  OF  THIS
SECTION:
  A.  ANY  USED  TRANSPORTATION  VEHICLE WITH COMPONENT PARTS CONTAINING
POLYBROMINATED DIPHENYL ETHERS;
  B. ANY USED TRANSPORTATION VEHICLE PARTS OR NEW TRANSPORTATION VEHICLE
PARTS MANUFACTURED BEFORE JANUARY FIRST, TWO THOUSAND THIRTEEN;
  C. EQUIPMENT USED PRIMARILY FOR MILITARY  OR  FEDERALLY  FUNDED  SPACE
PROGRAM APPLICATIONS. THIS EXEMPTION DOES NOT COVER CONSUMER-BASED GOODS
WITH BROAD APPLICABILITY;
  D.  ANY  USED  PRODUCT  SOLD OR DISTRIBUTED BY A BUSINESS, CHARITY, OR
PRIVATE PARTY; AND
  E. MEDICAL DEVICES.
  4. RETAILERS IN POSSESSION.    IN-STATE  RETAILERS  IN  POSSESSION  OF
PRODUCTS  ON  JULY FIRST, TWO THOUSAND FOURTEEN THAT ARE BANNED FOR SALE
UNDER SUBDIVISION TWO OF THIS SECTION MAY EXHAUST  THEIR  STOCK  THROUGH
SALES  TO THE PUBLIC. NOTHING IN THIS SECTION SHALL RESTRICT THE ABILITY
OF A MANUFACTURER, IMPORTER, OR DISTRIBUTOR FROM  TRANSPORTING  PRODUCTS
CONTAINING POLYBROMINATED DIPHENYL ETHERS THROUGHOUT THE STATE, OR STOR-
ING SUCH PRODUCTS IN THE STATE FOR LATER DISTRIBUTION OUTSIDE THE STATE.
  5. ONGOING REVIEW OF AVAILABILITY OF ALTERNATIVES TO DECABROMODIPHENYL
ETHER.  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.  SUCH COMMISSIONERS SHALL MAKE
RECOMMENDATIONS TO THE LEGISLATURE ON ADDITIONAL BANS  AND  RESTRICTIONS
TO  REDUCE  AND  PHASE  OUT  THE  MANUFACTURE,  SALE, OR DISTRIBUTION OF
NONCOMBUSTIBLE PRODUCTS CONTAINING COMMERCIAL  DECABROMODIPHENYL  ETHER.
THE COMMISSIONERS SHALL REPORT THEIR FINDINGS AND RECOMMENDATIONS TO THE
APPROPRIATE  COMMITTEES  OF THE LEGISLATURE NO LATER THAN JANUARY FIRST,
TWO THOUSAND FOURTEEN, AND EVERY TWO YEARS AFTER SUCH DATE.
  A. THE COMMISSIONER IS AUTHORIZED TO  PARTICIPATE  IN  A  REGIONAL  OR
NATIONAL MULTISTATE CLEARINGHOUSE TO ASSIST IN CARRYING OUT THE REQUIRE-
MENTS  OF  THIS  SECTION.  THE  CLEARINGHOUSE  IS AUTHORIZED TO MAINTAIN
INFORMATION ON BEHALF OF NEW YORK, INCLUDING, BUT NOT LIMITED TO:
  (1) A LIST OF ALL PRODUCTS CONTAINING POLYBROMINATED DIPHENYL  ETHERS;
AND
  (2) INFORMATION ON ALL EXEMPTIONS GRANTED BY THE STATE.
  B.  BY  JULY  FIRST,  TWO  THOUSAND  FOURTEEN, THE COMMISSIONER OF THE
OFFICE OF GENERAL SERVICES SHALL GIVE PRIORITY  AND  PREFERENCE  TO  THE
PURCHASE  OF EQUIPMENT, SUPPLIES, AND OTHER PRODUCTS THAT DO NOT CONTAIN
DECABROMODIPHENYL ETHERS.
  6. ADDITIONAL EXEMPTIONS. IN ADDITION TO THE SPECIFIC EXEMPTIONS UNDER
SUBDIVISION THREE OF THIS SECTION, A MANUFACTURER OR USER OF  A  PRODUCT

S. 3628--A                          3

PROHIBITED  FROM  MANUFACTURE, SALE, OR DISTRIBUTION UNDER SUCH SUBDIVI-
SION MAY APPLY FOR AN EXEMPTION FOR A SPECIFIC USE OF  COMMERCIAL  DECA-
BROMODIPHENYL  ETHER BY FILING A WRITTEN PETITION WITH THE COMMISSIONER.
THE  COMMISSIONER  MAY  GRANT  AN EXEMPTION FOR A TERM NOT TO EXCEED TWO
YEARS. THE EXEMPTION SHALL BE RENEWABLE UPON WRITTEN APPLICATION IF  THE
SPECIFIC USE OF COMMERCIAL DECABROMODIPHENYL ETHER CONTINUES TO MEET THE
CRITERIA  OF  THIS  SECTION AND THE MANUFACTURER OR OTHER PERSONS COMPLY
WITH THE CONDITIONS OF ITS ORIGINAL APPROVAL. THE COMMISSIONER MAY GRANT
AN EXEMPTION FOR A SPECIFIC USE OF COMMERCIAL  DECABROMODIPHENYL  ETHER,
WITH  OR  WITHOUT CONDITIONS, UPON FINDING THAT THE APPLICANT HAS DEMON-
STRATED:
  A. A TECHNICALLY FEASIBLE ALTERNATIVE IS NOT AVAILABLE  AT  REASONABLE
COST; OR
  B.  THE  POTENTIAL  HARM TO PUBLIC HEALTH AND THE ENVIRONMENT DIRECTLY
POSED BY A TECHNICALLY FEASIBLE AND  AVAILABLE  ALTERNATIVE  IS  GREATER
THAN THE POTENTIAL HARM POSED BY COMMERCIAL DECABROMODIPHENYL ETHER.
  7. LABELING AND POSITIVE RECOGNITION. THE COMMISSIONER MAY ESTABLISH A
"PBDE-FREE"  PRODUCT  LABELING  PROGRAM FOR PRODUCTS THAT DO NOT CONTAIN
POLYBROMINATED DIPHENYL ETHERS. THE COMMISSIONER MAY ESTABLISH  PARTNER-
SHIPS  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 ACCOM-
PLISHMENTS OF MANUFACTURERS WHO EXCEED THE REQUIREMENTS OF THIS  SECTION
AND  WHO  EXCEL  AT  REDUCING  OR ELIMINATING DECABROMODIPHENYL ETHER IN
PRODUCTS AND THE ENVIRONMENT.
  8. PENALTIES. A MANUFACTURER WHO VIOLATES THIS SECTION IS SUBJECT TO A
CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS FOR EACH  VIOLATION  IN
THE CASE OF A FIRST OFFENSE. A MANUFACTURER IS SUBJECT TO A CIVIL PENAL-
TY  NOT  TO EXCEED FIVE THOUSAND DOLLARS FOR EACH REPEAT OFFENSE. PENAL-
TIES COLLECTED UNDER THIS SECTION SHALL BE USED BY THE  COMMISSIONER  TO
IMPLEMENT AND ENFORCE THIS SECTION.
  S 3. This act shall take effect July 1, 2013.

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