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The committee on Environment, Natural Resources and Agriculture to whom was referred the bill (accompanied by bill, Senate, No. 558 ), relative for a healthy Massachusetts safer alternatives to toxic chemicals, reported, recommending that the same ought to pass, with an amendment substituting a new draft of the same title (Senate, No. 2406). Pamela P. Resor, |
Be it enacted by the Senate and House of
Representatives in General Court assembled,
SECTION 1. Paragraph (F) of section 4 of chapter 21I of the General Laws, as
appearing in the 2006 Official Edition, is hereby amended by inserting at the
end thereof the following:--
“The Advisory Committee shall
establish a permanent subcommittee to direct the Advisory Committee on its
responsibilities under sections 24 through 35 of this chapter. Members of that subcommittee shall include,
but shall not be limited to, 1 person selected from a list of three individuals
submitted by the president of the
SECTION 2. Section 4 of chapter 21I of
the General Laws, as appearing in the 2006 Official Edition, is hereby amended
by inserting at the end thereof the following subsection:--
“(G). The Science Advisory Board shall categorize
chemicals according to the provisions of section 24 of this chapter, and shall
fulfill the various other duties and responsibilities outlined in sections
24-35, inclusive, for the purposes of the safer alternatives program.”
SECTION 3. Section 6 of Chapter 21I of
the General Laws, as appearing in the 2006 Official Edition, shall be amended
by inserting after section 6 the following section:--
“Section 6A. TURI and Safer
Alternatives.
In addition to any other
requirements of this chapter, the institute shall seek to reduce the presence
of toxic or hazardous substances in products manufactured for use in the
Commonwealth by promoting safer alternatives to these priority substances. The institute may develop recognition
programs to promote the toxic or hazardous substances reduction achievements of
industry and communities. The institute
may establish fees, tuitions, or other financial charges for its safer
alternatives programs. All monies
appropriated to the institute for this purpose, or received for said purposes
by the institute through additional grants, gifts, bequests, or contracts shall
be administered through the
Through such programs, the
Institute shall:
A) Provide
general information about toxic or hazardous substances and actively publicize
the advantages of and developments in safer alternatives and the requirements
of this chapter. This shall include, but
not be limited to, providing information about public health, environmental,
and economic issues associated with toxics use and toxics use reduction.
B) Establish
courses, seminars, conferences and other events, and reports, updates, guides
and other publications, and other means of providing technical information for
consumers, and may as appropriate work in coordination with the office.
C) Develop
and provide curriculum and training for higher education students and faculty
on priority toxic substances and potential safer alternatives.
D) Sponsor
or engage in research to identify potential priority toxic substances and to
identify potential safer alternatives to such hazardous substances.
E) Subject
to the availability of funding, by
F) Sponsor
research or pilot projects to develop and demonstrate innovative technologies
for implementing safer alternatives to priority toxic substances.
G) Provide
safer alternative implementation training and assistance to citizens, community
groups, non-profit organizations and institutions, workers, labor
representatives, businesses, product supply chains, and state and local
government boards and officials. The
program shall assist these individuals and groups in understanding the public
health and environmental impacts of the presence of toxic or hazardous
substances, the methods and strategies for substituting safer alternatives for
priority toxic substances, and the requirements of this act.”
A policy goal of the Commonwealth
and its implementing agencies shall be to ensure the substitution in the use,
manufacture, emission and distribution of priority toxic substances, and in
consumer products containing the substances, with the safest feasible
alternatives, in coordination with the environmental and economic agencies of
the commonwealth.
SECTION 4. Section 7 of Chapter 21I of
the General Laws, as appearing in the 2006 Official Edition, is hereby amended
by inserting, after paragraph “(J)”, the following paragraph:
“(K) The office shall develop an
Innovative Business Leaders Program according to the description of section 31
of this chapter.”
“Section 2. In this chapter, the following words shall
have the following meanings, unless specifically stated otherwise:
“Administrative Council”, the
council created in section 4 of this chapter.
“Advisory Committee to the Administrative Council”, the advisory committee to the administrative council created in paragraph (F) of section 4 of this chapter.
For the purposes of sections 24 through 35 of
this chapter, the term “advisory committee” shall be construed as the
sub-committee of the advisory committee created in paragraph (F) of section 4
of this chapter.
“Agency”, state
agency.
“Alternative” means activities,
technologies, materials or methods of equivalent function, which can be substituted
for the use of a particular chemical.
“Board”, the science
advisory board of the Toxics Use Reduction Institute at the
“CERCLA,” the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. S9601 et. seq. (Public Law 92-500).
“Chemical” means any element,
chemical compound or mixture of elements and/or compounds.
“Commissioner”,
the commissioner of the department of environmental protection.
“Council,” the administrative
council on toxics use reduction as established by
section four of this chapter.
“Department”, the
department of environmental protection.
“Emission,” a
release of a toxic or hazardous substance to the environment or a transfer of a
toxic or hazardous substance in waste to an off-site location.
"EOEEA" means the
executive office of energy and environmental affairs.
“EPCRA,” the Emergency Planning and
Community Right-to-Know Act, 42 U.S.C. S11001 et. seq. (Public Law 99-499).
"Feasible" means capable
of being accomplished within a reasonable period of time with proven
technologies.
“Further study alternative” means
an alternative for which the institute lacks sufficient data to characterize it
either as a “safer alternative” or an “unacceptable alternative.”
“Higher hazard substance”, a
substance designated as a higher hazard substance pursuant to section 9.
“Institute”, the Toxics Use
Reduction Institute at the University of Massachusetts Lowell.
"Impact on existing jobs"
means need for employee retraining to do a different job in the same workplace,
changes in job descriptions or tasks, changes in working conditions such as
health and safety, or reduction in employee wages or hours occurring in the
Commonwealth of Massachusetts.
"Job loss" means the loss of
employment within the Commonwealth of Massachusetts.
"Just and fair transition" means reemployment assistance or vocational retraining or other support or arrangements sufficient to ensure that any employee displaced in the Commonwealth as a result of toxic substance substitution will be eligible for an available job with at least equivalent wages and benefits, skill level, and working conditions.
“Lower hazard substance”, a substance
designated as a lower hazard substance pursuant to section 9.
“Manufacture,” to produce, prepare, import or compound a toxic or hazardous substance. Manufacture shall also mean to produce a toxic or hazardous substance coincidentally during the manufacture, processing, use, or disposal of another substance or mixture of substances, including a toxic substance that is separated from that other substance or mixture of substances as a byproduct, and a toxic substance that remains in that other substance or mixture of substances as an impurity.
"Material substitution"
means the direct replacement of one substance for a priority toxic substance in
a simple drop-in process, without otherwise changing the formula or process.
“Mixture,” means any combination of two or
more chemicals, if the combination is not, in whole or in part, the result of a
chemical reaction. However, if the combination was produced by a chemical
reaction but could have been produced without a chemical reaction, it is also
treated as a mixture. A mixture also includes any combination which consists of a chemical and associated impurities.
“Multi-media,”
having to do with all environmental media including, but not limited to, water,
land and air and workplaces within facilities.
“Office”, office
of technical assistance and technology within the executive office of
environmental affairs.
“Person,” any individual, trust, firm, joint stock company, corporation, partnership, or association engaged in business or in providing service, excluding the Commonwealth of Massachusetts, and any authority, district, municipality or political subdivision of the Commonwealth of Massachusetts.
“POTW (publicly-owned treatment
works) operators,” holders of discharge permits for any devices and systems
owned by the commonwealth or any of its political subdivisions and used in the
storage, treatment, recycling and reclamation of municipal sewage or industrial
wastes of a liquid nature to implement 33 U.S.C. S1281, or necessary to recycle
or reuse water at the most economical cost under the estimated life of the
works, including intercepting sewers, outfall sewers, sewage collection
systems, pumping, power, and other equipment, and the appurtenances;
extensions, improvements, remodeling, additions, and alterations thereof;
elements essential to provide a reliable recycled supply such as standby
treatment units and clear well facilities; any works, including the land that
will be an integral part of the treatment process (including land used for the
storage of treated wastewater in land treatment systems prior to land
application) or is used for ultimate disposal of residues resulting from such
treatment; any other method or system for preventing, abating, reducing,
storing, treating, separating, or disposing of municipal waste, including storm
water runoff, or industrial waste, including waste in combined storm water and
sanitary sewer systems.
"Priority toxic
substance" means any substance designated as such by the Administrative
Council pursuant to section 26 of this chapter, and recorded in the Second
List.
“Priority toxic substance use”
means any use of a priority toxic substance designated as such by the
Administrative Council pursuant to section 26A of this chapter, and recorded in
the Third List.
“Process,” the preparation of a toxic or
hazardous substance, after its manufacture, for distribution in commerce:
(a) in the
same form or physical state, or in a different form or physical state from,
that in which it was received by the toxics user so preparing such substance;
or
(b) as part of an article containing the toxic or hazardous substance.
“Product,” a
product, a family of products, an intermediate product, a family of
intermediate products, or a desired result or a family of results.
“Production unit,” a process, line,
method, activity, or technique, or a combination or series thereof, used to
produce a product.
“Proven technologies”, technologies
in use by some users within similar firms in a user sector within or outside of
the Commonwealth.
“Resource conservation”, an action
that decreases the use or consumption of a natural asset such as water, energy,
or raw materials, or increases the efficiency of the use of the asset, without
increasing the risk to the public, including workers and consumers, or the
environment and without increasing the amount of waste generated.
“Safer Alternatives Assessment
Report”, the alternatives assessment completed for each priority toxic
substance by the Toxics Use Reduction Institute; provided that this shall also
mean any assessment conducted according to line item 7100-0350 of section 2 of
Chapter 45 of the Acts of 2005.
“Safer alternative”, an option or
options – including a change in chemical, material, product, process, function,
system, or any other action – whose adoption to replace a chemical currently in
use would be effective in reducing overall potential for harm to human health
or the environment.
“SIC code,” the identification code
assigned to facilities by the United States Department of Commerce.
“Second List,” means the list
created and maintained by the department according to the provisions of section
26 of this chapter. This List is the
record of substances which have been designated as priority toxic substances.
“Small quantity
toxics user,” any toxics user who is not a large quantity toxics user.
“State agency,” any agency or
authority of the commonwealth as defined in section one of chapter thirty A of
the General Laws.
“Substitution”, the replacement or reduction
of hazardous substances by selecting less hazardous or non-hazardous
substances, or by changing production processes, product function or design.
“Third List,” means the list
created and maintained by the department according to the provisions of section
26A of this chapter. This list is the
record of priority toxic substance uses.
“Threshold amounts”, the thresholds for toxics
or hazardous substances as established in section 9A.
“Toxics user”, a person who owns or
operates a facility that manufactures, processes or otherwise uses any toxic or
hazardous substance that is classified in SIC Codes 10 to 14, inclusive, 20 to
40, inclusive, 44 to 51, inclusive, 72, 73, 75, 76, 80 or 82, or the
corresponding NAICS code.
“Toxic,” toxic or
hazardous.
“Toxic or hazardous substance”, for
sections 24 through 35, inclusive, of this chapter, shall mean a substance in a
gaseous, liquid, solid or other form which is identified as a substance of
concern or high concern according to the First List for the Safer Alternatives
Program, but which will not include any substance when it is (1) present in
crude, lubricating or fuel oils or other petroleum materials being held for
direct wholesale or retail sale; (2) present in crude or fuel oils used in
combustion to produce electricity, steam or heat except when production of
electricity, steam or heat is the primary business of a facility; or (3)
present as a naturally occurring substance in fossil fuels, and in emissions or
byproducts as a result of the combustion of fossil fuels.
“Toxic or hazardous substance”, for
sections 1-23, inclusive, of this chapter, shall mean a substance in a gaseous,
liquid, solid or other form which is identified on the toxic or hazardous
substance list established pursuant to section 9, but which will not include
any substance when it is (1) present in an article; (2) used as a structural
component of a facility; (3) present in a product used for routine janitorial
or facility grounds maintenance; (4) present in foods, drugs, cosmetics or
other personal items used by employees or other persons at a facility; (5)
present in a product used for the purpose of maintaining motor vehicles
operated by a facility; (6) present in process water or non-contact cooling
water as drawn from the environment or from municipal sources, or present in
air used either as compressed air or as part of combustion; (7) present in a
pesticide or herbicide when used in agricultural applications; (8) present in
crude, lubricating or fuel oils or other petroleum materials being held for
direct wholesale or retail sale; or (9) present in crude or fuel oils used in
combustion to produce electricity, steam or heat except when production of
electricity, steam or heat is the primary business of a facility.
“Toxic or
hazardous substance list,” the list of toxic or hazardous substances
established pursuant to section nine of this chapter.
“Toxics,” toxic
or hazardous substances.
“Toxics use reduction,” in-plant
changes in production processes or raw materials that reduce, avoid, or
eliminate the use of toxic or hazardous substances or generation of hazardous
byproducts per unit of product, so as to reduce risks to the health of workers,
consumers, or the environment, without shifting risks between workers,
consumers, or parts of the environment. Toxics use reduction shall be achieved
through any of the following techniques:
1. Input substitution, which refers
to replacing a toxic or hazardous substance or raw material used in a
production unit with a non-toxic or less toxic substance;
2. Product reformulation, which
refers to substituting for an existing end-product an end-product which is
non-toxic or less toxic upon use, release or disposal;
3. Production unit redesign or
modification, which refers to developing and using production units of a
different design than those currently used;
4. Production unit modernization,
which refers to upgrading or replacing existing production unit equipment and
methods with other equipment and methods based on the same production unit;
5. Improved operation and
maintenance of production unit equipment and methods which refers to modifying
or adding to existing equipment or methods including, but not limited to, such
techniques as improved housekeeping practices, system adjustments, product and
process inspections, or production unit control equipment or methods; or
6. Recycling, reuse, or extended
use of toxics by using equipment or methods which become an integral part of
the production unit of concern, including but not limited to filtration and
other closed loop methods.
However, toxics use reduction shall
not include or in any way be inferred to promote or require incineration, transfer from one medium of release or discharge to other media, off-site or
out-of-production unit waste recycling, or methods of end-of-pipe treatment of
toxics as waste.
“Toxics Use Reduction Institute,”
or “Institute,” the Toxics Use Reduction Institute established pursuant to
section six of this chapter.
“Trade secret,” any formula, plan, pattern,
process, production data, device, information, or compilation of information
which is used in a toxics user’s business, and which gives said toxics user an
opportunity to obtain an advantage over competitors who do not know or use it.
“TURA”, the toxics use reduction
act.
“Unacceptable alternative,” means
an alternative which contains, or whose use would result in exposure of humans
or the environment to, a chemical of high concern or other chemical used in
dangerous and dispersive ways.
"Usage" means the
presence of a priority toxic substance in manufacturing, products or services
delivered or conducted within the Commonwealth.
“User segment,” a set of no fewer
than five toxics users who employ a similar production unit, as classified by
the department pursuant to section three of this chapter.
"User sector" means a
logical grouping of users of a priority toxic substance within the
Commonwealth.”
SECTION 6. Section 4 of Chapter 21I of the General Laws, as appearing in the
2006 Official Edition, is hereby amended by inserting after paragraph (G) the
following new paragraph: -
“(H) The Advisory Committee to the
council shall participate, from conceptualization and scoping through drafts
and finalization, in the development of each of the institute’s Safer
Alternatives Assessment Reports, the development of each of EOEEA’s Chemical Action Plans, and the development of implementing policies and
regulations by the department. The
Advisory Committee’s safer alternative program duties include:
1. Reviewing and providing comments
to the Institute during the preparation of each Safer Alternatives Assessment
Report. The institute shall seek
comments from the advisory committee and provide a summary of said comments in
each report.
2. Reviewing and providing comments to EOEEA during the preparation of each
Chemical Action Plan. EOEEA shall seek
comment from the advisory committee and include a summary of said comments in
each plan.
3. Reviewing and making recommendations to EOEEA on the performance of
Chemical Action Plans. Every two years
EOEEA shall present a review of performance on the implementation of each
Chemical Action Plan to the advisory committee and shall seek comment from the
advisory committee.”
SECTION 7. Chapter 21I of the General
Laws is hereby amended by inserting at the end thereof the following fourteen
sections:
“Section 24. First List for the Safer Alternatives Program
(A) No later than one year following the receipt of funding, the Institute
shall publish the first list for the safer alternatives program. This first list shall be a categorized record
of all chemicals commonly used in
Therefore the institute shall rely on the
Science Advisory Board to categorize chemicals on the list into one of four
categories: substances of high concern, substances of concern, substances of
unknown concern, and substances of low concern. The institute may create subcategories within those four
categories.
These categories may be
adjusted to take account of additional information, including on emerging
materials. In defining the universe of
chemicals and preparing this categorization, the Science Advisory Board will
rely on published government lists of chemical categorizations including, but
not limited to, the Canadian
Domestic Substances List Categorization, the
European Commission’s list of substances of very high concern, Washington
State’s list of persistent, bioaccumulative and toxic
chemicals, International Agency for Research on Cancer’s list of carcinogens,
the Oslo-Paris Convention for the Protection of the Marine Environment of the
North East Atlantic list of chemicals for priority action. The substances of high concern category shall
include those chemicals recognized as carcinogens, mutagens and reproductive
toxins; chemicals recognized as persistent, bioaccumulative and toxic chemicals; chemicals recognized as very persistent and very bioaccumulative chemicals; endocrine disruptors; and other
chemicals of equivalent concern. The
Science Advisory Board and the Institute shall also ensure that the First List
for the Safer Alternatives Program is consistent with existing categories that
have been established for chemicals on the TURA list. If the Science Advisory Board and the
Institute identify chemicals that are considered priority chemicals or
chemicals of concern on published government lists, and if these chemicals are
used in manufacturing but are not on the TURA list, the Institute may recommend
these for listing under TURA.
(B) Refined First List. Following
the publication of the First List for the Safer Alternatives Program, the
institute and the Science Advisory Board shall conduct an ongoing review of
scientific information regarding substances found on the First List. At periodic points, but at least every 4
years, and within 4 years after publication of the First List, the institute
and the Science Advisory Board shall refine the list to incorporate new
scientific information and data, and publish a refined version of the list.
(C) Prioritized First List for the Safer Alternatives Program.
The administrative council, in
consultation with the institute and the advisory committee, shall prioritize
the chemicals contained within the substances of high concern category,
according to criteria which it shall publish and make known to the public. This criteria shall
include, but not be limited to, inherent toxicity, use, including uses that
expose sensitive populations, the public policy implications of a reduction in
its use, and opportunities for substitution. The administrative council shall provide this prioritized list, known as
the Prioritized First List for the Safer Alternatives Program, to the
institute. The list shall be a matter of
public record pursuant to Section 10 of Chapter 66 of the General Laws. The administrative council shall seek
comments from the institute as well as the public regarding this prioritization
of the list. The administrative council
may, in consultation with the institute and the advisory committee, choose to
include substances of concern in the Prioritized First List if there are uses
for that substance that pose a perceived danger to sensitive populations,
particularly in the case of young children.
Section 25. Safer Alternatives Assessment Reports.
(A) Within 180 days following the publication of the First List, and
annually thereafter, the administrative council shall select toxic substances
from the Prioritized First List for the Safer Alternatives Program, and direct
the Institute to conduct and publish a Safer Alternatives Assessment Report for
each substance which evaluates the availability of safer alternatives to these
substances.
For each Safer Alternatives
Assessment Report the institute shall:
a. Identify the uses and functions
of the priority toxic substance and select a subset of uses and functions for
further study based on uses in
b. Identify whether alternatives
are available for the selected uses and functions of the priority toxic
substance;
c. Identify whether any of the
existing uses of the substance are of a trivial, clearly unnecessary nature;
d. Use the Prioritized First List
for the Safer Alternatives Program in Section 24 and other relevant factors to
characterize feasible alternatives as one of the following mutually exclusive
categories: unacceptable alternatives, further study alternatives, or safer
alternatives. The institute and the
Science Advisory Board may develop subcategories within these categories;
e. Provide a qualitative discussion
of the economic feasibility, opportunities, or costs associated with adopting
and implementing any safer alternatives. This assessment may include a qualitative characterization of the
economic impacts of substitution on the Massachusetts economy, including any
impacts on the workforce or quality of work life, potential costs or benefits
to existing business, potential impact on the cost of providing health care if
the product is a medical product, and the extent of human exposure to the
priority toxic substance that could be eliminated through substitution;
f. Each assessment shall also
identify uses of chemicals that do not currently have a feasible safer
alternative available, and make recommendations for promoting research and
development of such alternatives.
(B) The Institute shall work with
the Science Advisory Board to develop criteria for determining what
alternatives are unacceptable alternatives, further study alternatives, or
safer alternatives for priority toxic substances. The Institute and the Science Advisory Board
may also develop criteria for subcategories within these categories.
(C) The Institute shall seek
comment from affected businesses, affected workers, the Board, the Advisory
Committee to the Administrative Council and members of the public in developing
each Safer Alternatives Assessment Report. The Institute shall convene seminars and public meetings, and solicit
comments through the internet and other means to inform the development of the
Safer Alternatives Assessment Reports.
(D) The Institute shall publish and
make available to the EOEEA, the department and the general public the results
of the Safer Alternatives Assessment Report for substance assessed and compile
a general list of alternatives deemed as unacceptable, further study, or safer
for all of the priority toxic substances.
(E) In the event that one of the
substances assessed is a pesticide, the Institute shall contract with resources
at the
(F) In the event that one of the substance uses assessed is meant for a
medical purpose, the Institute shall contract with resources at the
(G) Following completion of a Safer Alternatives Assessment Report, the
institute shall consult with stakeholders and policymakers and review the
provisions of the report on a periodic basis, but at least once every five
years.
(H) The administrative council shall consult with the advisory committee and
the institute, and recommend annually the number of safer alternatives
assessment reports to be published. This
recommendation shall be made on the basis of available funds, available
institute resources, and the anticipated public policy implications of report
publication. Provided, however, that the
administrative council shall annually recommend a minimum of three substances
for assessment review by the institute.
(I) The administrative council shall annually, no later than December 31st
of every year, submit a report to the house and senate committees on ways and
means, the joint committee on environment, natural resources, and agriculture,
and the joint committee on public health, that details the reasoning behind the
recommendation of clause (H). The report
shall discuss the availability of funds and resources, as well as public policy
considerations. This report shall be a
public record under section 10 of Chapter 66 of the general laws.
Section 26. Second List for the Safer Alternatives
Program
The department shall, on behalf of
the Administrative Council, create and maintain a document which shall be known
as the Second List for the Safer Alternatives Program.
Within thirty days of the
completion of a Safer Alternatives Assessment Report, the Administrative
Council shall designate assessed substances as priority toxic substances if
this is in accordance with the results of the assessment, and shall recommend
the addition of the substances so designated to the Second List for the Safer
Alternatives Program. Whether or not a
Safer Alternative Assessment Report has been completed, the Administrative
Council may add substances to the Second List, provided they are chemicals that
are persistent, bio-accumulative and toxic; are other chemicals of high
concern; or are chemicals of concern that are widely used within
Massachusetts.
In addition, the Administrative
Council shall add the substances studied in the assessment published by the
Institute and conducted according to line item 7100-0350 of section 2 of
chapter 45 of the acts of 2005 to the Second List for the Safer Alternatives
Program. These substances shall be
designated by the Council as priority toxic substances. Within 60 days of the addition of a substance
studied according to said item 7100-0350 to the Second List for the Safer
Alternatives Program, the Administrative Council shall designate priority
substance uses and proceed with the development of Chemical Action Plans for
these substances. The Administrative
Council shall consult with the Advisory Committee to the Administrative Council
on these issues.
Any group of ten residents of the
Commonwealth may petition the Administrative Council to add new substances to
the Second List for the Safer Alternatives Program. A copy of the petition shall be provided by the
petitioners to the Institute and the Science Advisory Board. The Institute and the Science Advisory board
may provide an opinion on the substance of the petition to the administrative
council within 90 days of its receipt by said council. Petitioned substances may be added to the
list by the Administrative Council provided that they are found to merit high
priority status based on the criteria for high concern chemicals described in
section 26 of this chapter. If a
petitioned substance is a substance of concern, and is perceived to pose a
significant danger to sensitive populations such as young children, the
Administrative Council may add the substance to the list. Such a petition shall include the name and address
of each petitioner, a statement of the basis for believing that the named
substance should be added to the Second List for the Safer Alternatives
Program, a statement describing in detail the particular uses of the chemical
which are of concern to the petitioners, and such other information or
documentation as the petitioner chooses to include.
The Advisory Committee to the
Administrative Council, upon agreement via majority vote, may petition the
Administrative Council to add new substances to the Second List for the Safer
Alternatives Program, provided that substances which do not merit high priority
based on the criteria for substances of high concern, as developed according to
section 24 of this chapter, and are not perceived to pose a significant danger
to sensitive populations such as young children, may not be added in this
manner.
Substances added to the Second List
through the mechanisms described in this section shall be considered priority
toxic substances, and designated as such by the Administrative Council.
Section 26A. Third List for the Safer
Alternatives Program.
The department, on behalf of the
Administrative Council, shall create and maintain the Third List for the Safer
Alternatives Program. The Third List for
the Safer Alternatives Program shall be a matter of public record according to
section 10 of chapter 66. The
department, in consultation with the Toxics Use Reduction Institute, shall
publicly advertise the contents of the list, and maintain a publicly available
website detailing the substance uses on the list. The Third List shall record priority toxic
substance uses.
The Administrative Council, in
consultation with the Advisory Committee, shall, following the addition of a
substance to the Second List for the Safer Alternatives Program, and within 90
days, identify uses of those substances which are of highest concern, designate
these uses as priority toxic substance uses, and transmit these designations to
the department. The department shall add
these uses to the Third List for the Safer Alternatives Program. This designation by the Council shall be
based upon the practical implications of so designating a substance use as well
as the inherent toxicity of the substance, the quantity and variety of its use,
including uses that expose sensitive populations, and safety exhibited by the
use. The administrative council shall,
in this designation, pay particular attention to public health and safety
dangers posed to children and infants by the use, and may employ the age of the
end user as a means to demarcate similar uses.
The department shall consult with
the institute and with the advisory council to the administrative council to
determine additional means and methods by which the Third List for the Safer
Alternatives Program may be best disseminated to the public, and this list
shall be a public record pursuant to section 10 of chapter 66.
Section 27. Registry of Uses of
Priority Toxic Substances.
(A) Notices. No later than 120 days following the designation of a priority
toxic substance use, any person or legal entity that manufactures or
distributes a product in the Commonwealth which the manufacturer knows or has
reason to suspect contains a substance usage described in the Third List for
the Safer Alternatives Program shall file a notice with the department
identifying the product, the approximate number of units distributed in the
Commonwealth, an estimate of the amount or concentration of the priority toxic
substance contained in each unit, if known, the purpose for including the
priority toxic substance in the product, the name and address of the
manufacturer, and the name, address, and phone number of a contact person. The department shall prescribe a notification
form for such notices to be filed, and a means of filing such notices
electronically.
(B) Distribution of information.
The notices shall be provided by the department to the institute for use in
preparing its Safer Alternatives Assessment Reports, and shall be a public
record pursuant to section 10 of chapter 66 of the General Laws. Public disclosure of confidential business
information submitted to the department pursuant to this section shall be
governed by the requirements of section 10 of chapter 66 of the general
laws. Notwithstanding the requirements
of said act, the state may provide the copies of such information, and the
department may compile or publish analyses or summaries of such information
provided that the analyses or summaries do not identify any manufacturer or
reveal any confidential business information. Information may be considered
confidential business information if it meets the criteria for Trade Secret
Protection described in Section 20 of Chapter 21I.
(C) Preemption. Any product
containing a priority toxic substance for which federal law governs notice in a
manner that preempts state authority shall be exempt from the requirements of
this section.
(D) With the approval of the
department, a manufacturer, distributor or trade group may supply the
information required above for a product category rather than an individual
product. The submitter shall update and
revise the information in the notification whenever there is a significant
change in the information or when requested by the department. The department may promulgate regulations
pursuant to chapter 30A of the general laws for the content and submission of
the required notification.
Section 28. State Chemical Action Plans.
(A) No
later than one year after the Administrative Council identifies a new priority
toxic substance use, EOEEA shall utilize the Safer Alternatives Assessment
report to establish a Chemical Action Plan for that substance use. The goal of the Chemical Action Plan shall be
to coordinate state agency activities and to require users of priority toxic substance
uses to act as expeditiously as possible to ensure substitution of the priority
toxic substance with a safer alternative, while acting to minimize job loss and
mitigate any other potential unintended negative impacts. In preparing the Chemical Action Plan, EOEEA
shall consider the potential impacts to human health and the environment of the
continued use of the priority toxic substance.
(B) Each Chemical Action Plan shall
set forth:
1) Timetables, schedules and
deadlines for achieving substitution of priority toxic substances with safer
alternatives, for specified uses;
2) Requirements for all
manufacturers of products containing the priority toxic substance in
Massachusetts to create a Substitution Plan which demonstrates how that entity
will substitute all uses of the chemical with safer alternatives. Firms required to prepare Toxics Use
Reduction Plans shall include the Substitution Plan in their Toxics Use
Reduction Plan.
A Substitution Plan shall include:
a) identification of all uses of a priority toxic
substance for specified uses,
b) identification of all alternatives considered, including cost and feasibility considerations,
c) selection of preferred alternatives that will achieve the objectives and schedules set
out in the relevant Chemical Action
Plan,
d) timetables, schedules and deadlines for implementing
the preferred alternatives,
e) metrics for
assuring the full substitution of the priority toxic substance.
Each completed Substitution Plan
must be certified by a Toxics Use Reduction Planner, as defined in Section 12
of Chapter 21I, as complete and reasonable and capable of meeting the
objectives and schedules of the relevant Chemical Action Plan.
3) Priorities for state agency
action based on the Safer Alternatives Assessment Report.
4) Specific tasks assigned to the
department relative to regulation deadlines and enforcement regarding business
and institutional use of toxic chemicals in facilities, and regarding
regulation of consumer products containing the priority toxic substances.
5) A set of implementation measures
based on the following criteria:
a) If the Safer Alternatives Assessment Report indicates that
safer alternatives are feasible and of comparable cost, the department
shall be required to set and enforce regulations requiring the substitution to
a safer alternative. If the department
determines the implementation of the chemical action plan for the substitution
of a substance use will take longer than 5 years, the department may require
the clear labeling of products to identify the toxic substance present in the
product, and the impact of the toxic substance on the public health. The department may exempt from labeling those
products which are too small to be labeled or on which a label would not be
visible in the final product.
b) If the Safer Alternatives Assessment
Report finds that safer alternatives are feasible, but require extensive
capital expenditure or training, EOEEA shall implement a business assistance or
employee transition program, as set forth in section 30 of this chapter. EOEEA will set a timetable for completing
substitutions as expeditiously as possible.
c) If the Safer Alternatives Assessment
Report determines that safer alternatives are not feasible, the Chemical Action Plan shall designate
research and development activities to be pursued, including a priority of
encouraging and supporting research by private entities and academic
institutions;.
6) Recommendations on opportunities
and needs for investment in Massachusetts businesses and research and
development institutions to promote the implementation of safer alternatives to
toxic chemicals that could bring the most benefit to the Massachusetts economy
through safe jobs and economic growth.
(C) After EOEEA has established a
Chemical Action Plan, all other state agencies shall take any required
implementing actions as set forth in the Chemicals Action Plan and this
chapter.
(D) In preparing each Chemical
Action Plan, EOEEA shall hold public hearings in each of the five regions of
the state to receive feedback on the contents of the plan.
(E) In preparing each Chemical Action Plan, EOEEA shall require the
Department to release an estimated timetable for the substitution of a
substance for the substance use.
Section 29. Innovative Business Leaders
Program.
The Office of Technical Assistance,
in consultation with the implementing agencies, shall create a program to
encourage rapid substitution of priority toxic substances, called the
“Innovative Business Leaders Program”. This program shall encourage users of priority toxic substances or
chemicals of high concern to complete Substitution Plans prior to completion of
Safer Alternatives Assessment Reports, as defined in section 25 of this
chapter, or Chemical Action Plans, as defined in section 28 of this
chapter. Those entities participating in
the Innovative Business Leaders Program shall submit the results of
Substitution Plans to the department. This program may include priority targeted financial and technical
assistance and support for research, information gathering, and
implementation. EOEEA shall develop
criteria for firms that participate in said program.
Section 29A.Certain functions
provided for in sections 25, 26, 27, and 29 may be transferred to, or carried
out in cooperation with, an interstate entity. Such interstate entity may, among other functions: compile and
categorize chemical lists; produce alternatives assessment reports; develop
model Chemical Action Plans; and house one or more product or chemical use
registries.
Section 30. Business and Employee Transitions Programs.
Business
Transitions Assistance Program.
The Executive Office of Energy and
Environmental Affairs shall, in consultation with the Executive Office of
Housing and Economic Development, work with the institute and the office to
oversee a Business Transitions Assistance Program (BTAP) facilitating business
transitions to safer alternatives to toxic chemicals in the Commonwealth. In
developing the program, the EOEEA shall determine where business assistance and
financial investment can be most effectively used to protect public health by
focusing on application and promotion of safer alternatives.
The office of technical assistance shall
provide technical assistance to businesses for developing and implementing
safer alternatives consistent with section seven of this chapter. The Business Transition Assistance Program
shall be principally operated through private consortia, public-private
partnerships, and state universities.
The Business Transitions Assistance
Program shall include:
1. programs to evaluate technologies, encourage university researchers to
pursue projects, link researchers with industry partners, and attract funding
and additional support through federal and private grant and financial
assistance resources;
2. direct grants and loans to businesses for costs
required to implement safer alternatives
3. technical support focused on individual
companies or user sectors;
4. technical assistance in assessing safer
alternatives and assistance with forming consortiums to assess and develop
safer alternatives
5. research and development of safer alternatives,
including demonstration projects;
6. market development programs to create demand
for safer alternatives;
7. conferences, seminars, and workshops focused on
joint problem solving and evaluation of technology development opportunities
for particular user sectors;
8. publications focused on particular user
sectors.
The Business Transition Assistance
Program shall be developed with assistance from and collaboration with the
department of labor and industries, department of economic development, the
office of technical assistance of the executive office of environmental
affairs, department of labor and workforce development, and other agencies.
(B) Employee Transitions. The department of labor and workforce
development shall cooperate with the EOEEA and the department in developing the
employee transition assistance programs. These agencies shall jointly develop a
plan to provide that in the event that substantial job losses are anticipated
as a result of implementation, just and fair transition services shall ensure
reemployment assistance or vocational retraining or other support or
arrangements sufficient to ensure that any employee displaced in the
Commonwealth as a result of toxic substance substitution will be eligible for
an available job with at least equivalent wages and benefits, and working
conditions.
In the event that any employee is
terminated after the enactment of this law, through no fault of his own, as a
result of the transition from priority toxics, and is otherwise eligible for
unemployment benefits, he or she shall receive reemployment assistance benefits
and health insurance benefits through the department of labor and workforce
development. Such benefits shall be in
addition to any benefits any employee may receive pursuant to the provisions of
an agreement resulting from collective bargaining.
In the event there is projected to
be significant job loss in the Commonwealth as a result of the shift to safer
alternatives, the department of labor and workforce development shall establish
requirements to ensure a just and fair transition of any affected workers. In the event there would be other substantial
impacts on existing jobs, transition plans should also address these issues.
Section 31. Implementation
–Manufacturers and Users of Priority Toxic Substances.
(A) In conformance with the
Chemical Action Plan, the department is authorized to promulgate regulations to
restrict the use of priority toxic substances for specified uses in the
Commonwealth. Such regulations may establish substitution deadlines and
substitution planning requirements for business or institutional uses for each
priority toxic substance. The
regulations shall specify enforcement mechanisms. The department may choose to
adopt a set of stricter regulations regarding the use of priority toxic
substances in products intended for use by children. The department shall set, within 3 months of
the Chemical Action Plan, a clear deadline by which time the substitution shall
have been completed.
(B) No later than 365 days after
the release of the chemical action plan, each regulated entity shall:
1) Have completed a substitution
plan as defined in Section 29; and
2) File with the department a
certification of compliance that good faith efforts to implement substitution
of a safer alternative as designated by a Safer Alternatives Assessment Report
have been implemented, including identification of the name of the alternative,
and documentation of employee participation consistent with this section; or
3) File an application with the
department to use an alternative substance that has neither been designated by
the institute as a safer alternative, nor designated unacceptable, documenting
that the alternative does not involve chemicals of high concern, and
documenting with toxicity and exposure data how the substance would comply with
the safer alternatives criteria developed by the institute. In response to such request the department
shall evaluate whether such alternative is acceptable; or
4) File with the department an
application for a waiver of the substitution deadline, certifying that there is
no safer alternative that is technically or economically feasible for their
particular use of the substance. Such
waiver applications shall include:
a) identification of all uses of a priority toxic substance,
b) identification of all alternatives considered and their cost and feasibility considerations,
c) the basis for finding that there is no feasible safer alternative
d) documentation of efforts to be taken to minimize the use of the priority toxic substance and
human and environmental exposures to such substance until safer alternatives
are found and implemented,
e) the steps the applicant will take to identify safer alternatives in the coming
year.
The department shall reject or
accept such waiver application within 60 days of receipt of an application, and
may grant the waiver where the department finds there is a need for the use of
the substance, there was no safer alternative, and the use of the product would
not cause human exposure or environmental contamination. Waivers are time limited to one year, after
which time a new waiver application must be submitted.
(C) All regulated entities
evaluating the substitution of safer alternatives shall undertake measures to
involve employees. At a minimum, each firm shall provide employees a thirty-day
period to provide comments. The firm shall maintain documentation of its
employee input and how it is utilized, shall solicit employee comments
regarding the use of alternatives, allow for anonymous employee comments, and
ensure an analysis of the impact the substitution may have on all aspects of
the quality of work life.
(D) The department and the
institute shall cooperate in revising training requirements for toxics use
reduction planners to ensure that the planners are prepared to assist in
fulfilling the substitution planning requirements of this section. In addition, the department and institute may
develop an additional curriculum to enable toxics use reduction planners to aid
manufacturers and distributors in fulfilling the requirements of section 31 of
this act.
(E) The department shall publish a set of lists, for use by retailers and
members of the public, of:
(1) all products that have been
certified by manufacturers or distributors as containing only those chemicals
identified in an Safer Alternatives Assessment Report as safer alternatives, (2)
all products that are being sold under a valid waiver, and
(3) products that should have a proper label identifying the use of a priority toxic
substance.
(F) The requirements of this
section shall apply to manufacturers and distributors that sell or distribute
products to persons or legal entities in the Commonwealth, regardless of
whether such manufacturers or distributors are physically located in the
Commonwealth.
(G) Within the time of the deadline set by the Department, the regulated
entity shall certify that substitution of the substance has been completed.
Section 32. General requirements and authorities.
(A) Businesses and legal entities
of any size may develop collaborative submissions to meet any of the
certification or waiver application requirements of sections 30 and 31 of this
chapter. The executive office of environmental affairs shall assist in
facilitating the formation and collaboration of groups of businesses in
fulfilling the filing and documentation requirements.
(B) Certifications pursuant to
section 30 and 31 shall be by independent laboratories known to and approved by
the department.
(C) The department shall have all
of the powers and authorities necessary to prohibit or limit the use, sale or
distribution of a product containing a priority toxic substance in the
Commonwealth.
(D) A manufacturer shall have a
duty to take back from retailers and compensate them for the full price paid,
for any products sold after the effective date of substance use-specific
regulations of the department, for products requiring proper labeling and for
which no waiver has been obtained for continued distribution of the product if
the product does not contain the proper label.
(E) Technical Assistance. The
Institute shall work with the Office of Technical Assistance to develop an
innovative business leaders program to encourage rapid substitution of priority
toxics.
Section 33. Enforcement and Appeals
(A) Penalties for Noncompliance.
Except as otherwise provided in paragraph B of this section, violations of
sections 24 to 31 of this chapter by any person or legal entity, shall subject
the violator to penalties of up to $25,000 per day of violation. In addition,
the department shall have the authority to exclude products from the state when
a distributor or manufacturer has failed to comply with the provisions of this
Act.
(B) Exemptions for end users of
consumer products. End users of consumer products shall not be subject to
enforcement action under paragraph (a) of this section.
(C) Petition for Appeal. No later than 60 days following the
publication of a final Chemical Action Plan by the EOEEA, any ten residents of
the Commonwealth may file a petition of appeal of any provisions of the plan with the Secretary of Environmental Affairs. Such a petition may
be filed if the petitioners assert that the plan mischaracterizes uses of the
priority toxic substance; fails to include feasible alternatives, or
mischaracterizes alternatives; fails to result in substitution of the safest
available alternatives as expeditiously as possible; fails to adequately
address job loss or impacts on existing jobs; or otherwise fails to meet the
criteria of this act. A petition of
appeal shall state the grounds of objection. The EOEEA shall have 60 days from
the date of filing to reply with its determination to (a) deny the appeal, or
(b) grant the appeal and revise the plan.
(D) Citizen enforcement.
1) The superior court shall have
jurisdiction to enforce the requirements of this chapter in an action brought
by any ten residents of the Commonwealth against:
(i) any manufacturer, user or distributor alleged to have been
be in violation of such requirements; or
(ii) an official of the Commonwealth when there is alleged a failure of that official
to perform any act or duty under this chapter which is not discretionary with
that official.
2) No action may be commenced under
this section against any manufacturer, user or distributor alleged to have been
in violation of the requirements of this chapter prior to twenty one days after
the date on which the plaintiff gives notice of the alleged violation to the
department and the alleged violator. No action may be commenced under this
subsection against any manufacturer, user or distributor alleged to have been
in violation of such requirements if the department has commenced and is
diligently pursuing an administrative order or civil action to enforce the
requirement concerned and to impose a civil penalty under this chapter with
respect to the violation of such requirement. No action may be commenced under
this subsection against an official of the Commonwealth prior to twenty-one
days after the date on which the plaintiff gives notice to said official that
the plaintiff will commence the action. Notice under this subsection shall be
given in a manner as the department shall prescribe by regulation.
3) The court, in issuing any final
order for civil penalties or injunctive relief in any action brought pursuant
to this subsection, may award costs of litigation, including reasonable
attorney and expert witness fees, to the prevailing or substantially prevailing
party other than the Commonwealth who advances the purposes of this
chapter.
(E) In an action for judicial
review, or review of a departmental decision by an administrative law judge,
the court shall overturn a decision of the department which is contrary to the
recommendations of the Assessment Report unless it finds based on clear and
compelling evidence that the findings or recommendations of the Report were in
error.
Nothing in this section shall
restrict or expand any right that anyone may have under any other federal or
state statute or common law to seek enforcement of any requirement or to seek
any other relief.
Section 34. Scope of Law and Relationship to Existing Law.
(A) Relationship to Federal Law.
Nothing in this Act shall be construed to require actions which are preempted
by federal law. No provision of this Act shall be construed to require the
adoption of Occupational Safety and Health standards or the issuance of orders
on any Occupational Safety and Health matter on which the federal Occupational
Safety and Health Administration has established a standard.
(B) Relationship to Existing
laws. Existing environmental, land use,
public health and conservation laws and regulations of the Commonwealth shall
be interpreted and enforced consistent with this Act. Nothing in this Act shall be interpreted so
as to contravene federal law, or the Constitutions of the Commonwealth or of
the
(C) Severability. The provisions of this Act shall be
severable. In the event that any provision of this Act is invalidated by a
court of competent jurisdiction, the remaining provisions shall remain in full
force and effect.
Section 35. Technical Assistance Grants.
For purposes of ensuring public
involvement regarding the provisions of sections 24 through 35 of this chapter,
the department shall establish technical assistance grants to organizations of
consumers and/or workers focused on the impact of changes in specific
sectors. Such grants shall assist in meeting the following needs:
1) securing full information on technologies and their impacts on workers, consumers and
the environment;
2) hiring independent technical support regarding technologies, processes, and work
organization; and;
3) paying for training programs to assist affected groups in analyzing the changes.
SECTION 8. Section 12 of Chapter 21I
of the General Laws, as appearing in the 2006 Official Edition, is hereby
amended by inserting at the end thereof the following:--
“(G) The department, through
consultation with the advisory committee and with the office, shall amend its
regulations relative to this section in order to incorporate the provisions of
sections 24 through 35 of this chapter, namely, the creation of the safer
alternatives program.”
SECTION 9. The department of
environmental protection shall, in consultation with the executive office of administration
and finance, revise its existing fee structure under the Toxics Use Reduction
Act to encompass, in addition to current filers, the wholesale sellers or
distributors of products or services to retail establishments in the
Commonwealth where such products or services utilize or contain priority toxic
substances, regardless of whether such wholesale sellers or distributors are
located within or outside of the Commonwealth. Where retail establishments buy
products directly from manufacturers, the fee shall be assessed on the
manufacturer. The fee shall be set at a level sufficient to raise $18 million
per year. 75% of the fee shall be collected from larger distributors and 25%
from smaller distributors, based on criteria the department shall establish. In addition the department shall establish a
de minimis threshold for products, services and toxic
substances below which no fee shall be assessed. Amounts collected by the department according
to this section shall be credited to the fund governed by Section 2OOO of
Chapter 29 of the General Laws.
SECTION 10. Chapter 29 of the
General Laws is amended by adding the following section:--
“Section 2OOO. There shall be established and set up upon
the books of the commonwealth, a separate fund to be known as the Innovation
for Safer Alternatives Fund. There shall be credited to such fund any amounts
collected by the department as fees or penalties pursuant to chapter 21I; any
appropriation, grant, gift, or other contribution explicitly made to such fund;
and any interest earned on monies within the fund. Amounts credited to such
fund shall be used, subject to appropriation, solely for the purposes of
carrying out chapter 21I including the Act for a Healthy Massachusetts: Safe
Alternatives to Toxic Chemicals. Such
funds shall be divided with at least six million dollars per year for the
executive office of environmental affairs and its office of toxics use
reduction assistance and technology; six million dollars per year for the
Toxics Use Reduction Institute; a portion of which shall be earmarked for the
University of Massachusetts-Worcester and for the University of
Massachusetts-Amherst, apportioned commensurate to their involvement in
assessment reports and toxics research; two million dollars per year for the
department of environmental protection; and four million dollars for the
business transitions assistance program and the employee transition assistance
program established by
