[Senate, January 29, 2008 - The text of the Senate Bill providing for a safer alternatives to toxic chemicals -- being the text of Senate, No. 2497, printed as amended]
[Senate, January 29, 2008 - The text of the Senate Bill providing for a safer alternatives to toxic chemicals -- being the text of Senate, No. 2497, printed as amended] |
Whereas, The deferred operation of this act would tend to defeat its purpose, which is forthwith to establish safer alternatives to toxic chemicals, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public health and safety
Be it enacted by the Senate and House of
Representatives in General Court assembled,
SECTION 1. To provide for certain unanticipated obligations of the commonwealth, to provide for an alteration of purpose for current appropriations and to meet certain requirements of law, the sum set forth in this section is hereby appropriated from the General Fund unless specifically designated otherwise in this act for the several purposes and subject to the conditions specified in this act and subject to the laws regulating the disbursement of public funds for the fiscal year ending June 30, 2008. Such sum shall be in addition to any amounts previously appropriated and made available for the purposes of said item.
SECTION 2. 2020-0200 The secretary of energy and environmental affairs shall expend for the purposes of carrying out this act, an amount not to exceed $11,500,000 from fees collected pursuant to this act; provided, that the first 30.5 per cent of the revenue collected, but not more than $3,500,000 per year, shall be expended for the Toxics Use Reduction Institute at the University of Massachusetts at Lowell, a portion of which shall be expended for the University of Massachusetts at Worcester and for the University of Massachusetts at Amherst, apportioned commensurate to each university’s involvement in assessment reports and toxics research; provided further, that the next 13 per cent of the revenue collected, but not more than $1,500,000 per year, shall be expended for retraining employees who lose their jobs due to the implementation of this act through the rapid response set aside program; provided further, that the next 13 per cent of the revenue collected, but not more than $1,500,000 per year, shall be expended for business transitions assistance programs and innovative business leaders programs established under this act; provided further, that the final 43.5 per cent of revenue collected, but not more than $5,000,000 per year, may be expended by the secretary to carry out this act; and provided further, that the department of environmental protection shall annually file a report with the house and senate committees on ways and means detailing the expenditures under this item in the preceding fiscal year………………………………….$11,500,000.
SECTION 3. Section 2 of chapter 21I of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the definition of “Agency” the following definition:-
“Alternative”, an activity, technology, material or method of equivalent function which can be substituted for the use of a particular chemical.
SECTION 4. Said section 2 of said chapter 21I, as so appearing, is hereby further amended by inserting after the definition of “Manufacture” the following definition:-
“Material substitution”, the direct replacement of 1 substance for a higher hazard substance in a simple drop-in process, without otherwise changing the formula or process.
SECTION 5. Said section 2 of said chapter 21I, as so appearing, is hereby further amended by inserting after the definition of ““POTW (publicly-owned treatment works) operators” the following 2 definitions:-
“Priority toxic substance”, a higher hazard substance designated by the council for the development of a chemical action plan, based on its potential to harm human health or the environment and the availability of: (a) safer alternatives that can be feasibly substituted for specific uses of such substances; or (b) other actions that can reduce human exposure to the substance.
“Priority toxic substance use”, a use of a priority toxic substance designated as such by the council pursuant to section 25.
SECTION 6. Said section 2 of said chapter 21I, as so appearing, is hereby further amended by inserting after the definition of “”Resource conservation” the following 2 definitions:-
“Safer alternative”, an option, including a change in toxic substance, material, product, process, function, system or other action, to replace a toxic substance currently in use and which would be effective in reducing the overall potential for harm to human health or the environment.
“Safer alternatives assessment report”, the alternatives assessment completed for each higher hazard substance by the Institute.
SECTION 7. Said section 2 of said chapter 21I, as so appearing, is hereby further amended by inserting after the definition of “State agency” the following definition:-
“Substitution”, the replacement or reduction of a hazardous substances by selecting a less hazardous or nonhazardous substance or by changing a production process, product function or design.
SECTION 8. Said section 2 of said chapter 21I, as so appearing, is hereby further amended by striking out the definition of “Toxic or hazardous substance” and inserting in place thereof the following definition:-
Toxic or hazardous substance”, a substance in any form which is identified on the toxic or hazardous substance list established pursuant to section 9; provided, however, that a toxic or hazardous substance shall not be subject to sections 1 to 23, inclusive, 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 food, 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 noncontact 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 fuels used in combustion to produce electricity, steam or heat, except when production of electricity, steam or heat is the primary business of a facility; and provided further, that a toxic or hazardous substance shall not be subject to sections 24 to 27, inclusive, when it is: (1) present in fuel oils or petroleum materials being held for direct wholesale or retail sale; (2) present in fuels used in combustion to produce electricity, steam or heat; or (3) present as a naturally-occurring substance in fuels and in emissions or byproducts as a result of the combustion of fuels.
SECTION 9. Section 3 of said chapter 21I, as so appearing, is hereby amended by inserting after the word “reduction”, in line 61, the following words:- , substitution of safer alternatives.
SECTION 10. Said section 3 of said chapter 21I, as so appearing, is hereby further amended by striking out paragraph (J) and inserting in place thereof the following paragraph:-
(J) The department may establish technical assistance grants to organizations of consumers or workers focused on the impact of substitutions of safer alternatives in specific sections. The grants may include assistance in securing information on technologies and their impact on workers, consumers and the environment; hiring independent technical support regarding technologies, processes and work organization; and paying for training programs to assist affected groups in analyzing the changes.
SECTION 11. Section 4 said chapter 21I, as so appearing, is hereby amended by adding the following paragraph:-
(H) The council shall submit a report to the clerks of the senate and house of representatives and the house and senate chairs of the joint committee on environment, natural resources and agriculture, outlining recommendations for improvements to the safer alternatives provisions of this chapter including, but not limited to, further provisions for products manufactured outside the commonwealth and products sold on the internet.
SECTION 12. Said chapter 21I is hereby further amended by inserting after section 6 the following section:-
Section 6A. (a) In addition to any other requirements of this chapter, the institute shall seek to reduce the presence of toxic or hazard substances in products manufactured for use and sale in the commonwealth by promoting safer alternatives to such substances. The institute may develop recognition programs to promote the priority toxic substance reduction achievements of industry and communities. The institute may establish fees for its safer alternatives programs. When feasible, the institute shall coordinate the programs and responsibilities relative to the substitution of safer alternatives for priority toxic substances with those programs and responsibilities described in this chapter.
(b) Through such programs, the institute shall:
(1) 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, which shall include, but not be limited to, providing information about public health, environmental and economic issues associated with toxics use and toxics use reduction;
(2) establish courses, seminars, conferences and other events and provide reports, updates, guides and other publications and other means of providing technical information for consumers and, as appropriate, work in coordination with the office;
(3) develop and provide curriculum and training for higher education students and faculty on priority toxic substances and potential safer alternatives;
(4) sponsor or engage in research to identify potential priority toxic substances and potential safer alternatives to such substances;
(5) sponsor research or pilot projects to develop and demonstrate innovative technologies for implementing safer alternatives to priority toxic substances;
(6) subject to appropriation, develop in consultation with the department and office, a safer alternatives curriculum and training program to supplement the toxics use reduction planner training program; and
(7) subject to appropriation, provide safer alternatives implementation training and assistance to citizens, community groups, nonprofit organizations and institutions, workers, labor representatives, businesses, product supply chains and state and local government boards and officials; provided, however, that such training and assistance shall provide such individuals and groups with an understanding of 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 chapter.
SECTION 13. Section 7 of said chapter 21I, as appearing in the 2006 Official Edition, is hereby amended by adding the following 2 paragraphs:-
(K) The office shall work with the institute, in consultation with the implementing agencies to establish an innovative business leaders program to encourage early substitution of high hazard and priority toxic substances. The program shall assist users of high hazard and priority toxic substances to complete substitution plans. The program may include priority targeted financial and technical assistance and support for research, information gathering and implementation.
(L) The office shall provide business transition assistance for developing and implementing safer alternatives consistent with this chapter which may include, but shall not be limited to, direct grants and loans to businesses for costs required to implement safer alternatives.
SECTION 14. Said chapter 21I is hereby amended by adding the following 5 sections:-
Section 24. (a) Annually, the council shall select, on the basis of available funds, available institute resources, and the anticipated public policy implications of report publication, 1 to 5 higher hazard substances, which may include any substance recommended by the department of public health, and direct the institute to prepare and publish a safer alternatives assessment report that evaluates the availability of safer alternatives for each selected substance. The council, in consultation with the institute, shall establish a schedule for the development of each safer alternatives assessment report.
(b) For each safer alternatives assessment report, the institute shall:
(1) identify the uses and functions of the higher hazard substance and select a subset of uses and functions for further study based on uses in products and facilities and other relevant factors; provided, however, that priority shall be given to uses of greatest volume or dispersion into indoor and outdoor environments, high exposure scenarios and other sources of concern;
(2) identify whether alternatives are available for the selected uses and functions of the higher hazard substance;
(3) identify whether any of the existing uses of the substance are of a clearly unnecessary nature;
(4) research and study relevant factors to characterize feasible alternatives;
(5) provide a qualitative discussion of the economic feasibility, opportunities or costs associated with adopting and implementing any safer alternatives; provided, however, that such discussion may include a qualitative characterization of the economic impacts of substitution and the extent of human exposure to thehigher hazard substance that could be eliminated through substitution or other actions;
(6) identify uses of substances that do not currently have a feasible safer alternative available and make recommendations for promoting research and development of such alternatives; and
(7) be authorized to use published chemical categorizations, including government lists of substances used in industry or in consumer products, in order to identify potential safer alternatives.
(c) The institute shall seek comments from the science advisory board, the advisory committee and members of the public, including all regions of the commonwealth, in developing each safer alternatives assessment report.
(d) The institute shall publish the results of the safer alternatives assessment report for each substance assessed.
(e) Following publication of a safer alternatives assessment report for a selected higher hazard substance, the institute shall review its provisions with the advisory committee and the council on a periodic basis, but not less than once every 5 years, and shall revise such report as necessary to update it and to address new recommendations. Revised reports shall be made available to the public for comment, and final revised reports shall be published.
(f) In the event that a substance to be assessed is a pesticide, the institute shall contract with resources at the University of Massachusetts at Amherst, including the Cooperative Extension Service, for assistance and guidance in assessing agricultural uses of such substance.
(g) In the event that a substance to be assessed is used for medical purposes, the institute shallcontract with resources at the University of Massachusetts at Worcester for assistance and guidance in assessing medical uses of such substance.
Section 25. (a) Based upon each completed safer alternatives assessment report, the council shall designate assessed substances as priority toxic substances and identify priority toxic substance uses of highest concern if the safer alternatives assessment report concludes that an assessed substance poses a significant risk of harm to human health or the environment and that safer alternatives can be feasibly substituted for specific uses of such substance.
(b) Not later than 1 year after the council identifies a priority toxic substance, the department, in consultation with the institute and the advisory committee, shall develop a chemical action plan for that substance, focusing on priority uses, including uses in products. The goal of the chemical action plan shall be to coordinate state agency activities and to require users of priority toxic substances to act as expeditiously as possible to ensure substitution of the priority toxic substances with a safer alternatives, while acting to minimize job loss and mitigate any other potential unintended negative impacts. The chemical action plan shall identify specific actions that users of priority toxic substances shall be required to implement, on a schedule to be established in the plan, to: (i) substitute a safer alternative for the priority toxic substance in specific uses when feasible; and (ii) reduce human exposure to and environmental contamination from such substance.
Substitution of a safer alternative shall be required whenever the department determines that there are appropriate safer alternatives that arefeasible for specific uses of a priority toxic substance. Efforts to reduce human exposure and environmental contamination shall be required only where the department determines that appropriate safer alternatives are not available.
(c) In preparing the chemical action plan, the department shall consider the potential impacts to human health and the environment of the continued use of the priority toxic substance. The chemical action plan shall include:
(1) schedules and timelines for achieving substitution of the priority toxic substance with safer alternatives, for specified uses;
(2) identification of other state agency actions that should be implemented to reduce human exposure to the priority toxic substance in a particular use and to reduce the potential for environmental contamination from such substance; provided, however, that such actions may include, but shall not be limited to:
(i) technical assistance to product manufacturers and users;
(ii) substitution plans;
(iii) research and development into safer alternatives to the use of a priority toxic substance;
(iv) product labeling and other notification to users that a product contains a priority toxic substance and advice on the proper handling and disposal to minimize human exposure to the priority toxic substance;
(v) registering the use of a priority toxic substance with the department;
(vi) limitations on certain continued uses of the priority toxic substance to specific applications; and
(vii) incorporation of reduction measures in toxic use reduction plans submitted to the department pursuant to section 11; and
(3) identification of department and other state agency regulations that shall be required to ensure substitution of the priority toxic substance in products and used by toxics users, and to implement other agency actions identified in the chemical action plan.
(d) After the department has developed a chemical action plan, it shall be presented to the council for adoption; provided, however, that the council shall seek public comment on each plan and, within 6 months, adopt a plan. Upon adoption of a chemical action plan by the council, all state agencies shall take any required implementing actions as set forth in the chemical action plan and this chapter.
Section 26. (a) Based on a chemical action plan as adopted by the council, the department may promulgate regulations to restrict the use of priority toxic substances for specified uses and within consumer products. Such regulations may establish substitution deadlines and substitution planning requirementsfor specific uses of each priority toxic substance and may specify acceptable alternatives.
(b) The regulations may:
(1) require toxics users and other persons to file with the department a certification of compliance with any substitution or other requirement promulgated by the department;
(2) authorize the filing with the department of an application to use an alternative substance that has not been identified as an acceptable alternative, documenting with toxicity and exposure data how the proposed alternative substance would ensure protection of health and the environment and, in response to such request, the department shall determine whether such alternative is acceptable;
(3) authorize the filing with the department of an application for a waiver of a substitution deadline, certifying that there is no safer alternative that is technically or economically feasible for a particular use of the substance; provided, however, that such waiver application shall include:
(i) identification of the specific use of the priority toxic substance for which a waiver is sought;
(ii) identification of all alternatives considered and their cost and feasibility considerations;
(iii) the basis for finding that there is no feasible safer alternative;
(iv) documentation of any efforts to be taken to minimize the use of the priority toxic substance and of human and environmental exposures to such substance until safer alternatives are found and implemented; and
(v) the steps the applicant shall take to identify safer alternatives in the following 3 years;
(c) In deciding whether to accept a waiver application, the department shall, in consultation with the department of public health and the department of economic development, consider whether: (i) there is a need for the use of the substance; (ii) there is no safer alternative feasibly available, and (iii) the use of the product would cause human exposure to the priority toxic substance or environmental contamination from handling the substance in manufacturing or the use or disposal of a product containing such substance. Waivers shall not be granted for more than 3 years.
(d) This section shall apply to a person who manufactures, sells, offers for sale or distributes products containing a priority toxic substance in the commonwealth.
(e) Within the time of a substitution deadline established by the department, the department shall require any regulated entity to certify that substitution of the substance has been completed.
Section 27. Certain functions provided for in this chapter may be transferred to or carried out in cooperation with an interstate entity. The interstate entity may, among other functions: compile and categorize chemical lists, produce alternatives assessment reports; develop model chemical action plans and house product or chemical use registries. The department may promulgate regulations to carry out this section.
Section 28. (a) Except as otherwise provided in subsection (b), violations of sections 24 to 26, inclusive, may be punished by a fine of not more than $25,000 per day for each day a violation exits. In addition, the department may prohibit the sale or distribution of products when a distributor or manufacturer has failed to comply with this chapter.
(b) End users of consumer products shall not be subject to enforcement action under subsection (a).
SECTION 15. Notwithstanding any general or special law to the contrary, an employer who terminates an employee as a result of the implementation of this act shall notify the department of workforce development at the time of such termination. The local workforce investment board shall work with the rapid response team set aside program within the department of workforce development to determine an individual’s eligibility for retraining benefits under the set aside program. The rapid response team shall establish criteria to determine eligibility. An individual deemed eligible under this section may receive up to 1 year of training-based assistance.
SECTION 16. The department shall, in consultation with the executive office of administration and finance, revise its existing fee structure under Chapter 21I of the General Laws to encompass, in addition to current filers, the wholesale sellers or distributors of products or services to retail establishments where such products or services have been determined to be priority toxic substance uses whether or not such wholesale sellers or distributors are located within or without the commonwealth.
SECTION 17. The report required to be submitted by the administrative council on toxics use reduction to the clerks of the senate and house of representatives and the house and senate chairs of the joint committee on environment, natural resources and agriculture pursuant to Paragraph (H) of section 4 of chapter 21I of the General Laws shall be filed not later than January 1, 2011.
SECTION 18. The safer alternatives curriculum and training program required to be established pursuant to clause (6) of subsection (b) of section 6A of chapter 21I of the General Laws shall be established not later than July 1, 2009.
SECTION 19. Nothing in this act shall require actions which are preempted by federal law. Nothing in this act shall require the adoption of occupational safety and health standards or the issuance of orders on an occupational safety and health matter on which the federal Occupational Safety and Health Administration has established a standard. Nothing in this chapter shall convey rights to discharge priority toxic substances into the environment, to cause potential harm to individuals or the environment or to create a nuisance. Nothing in this chapter shall limit the authority of local governments to restrict or prohibit the use or discharge of toxic substances. Any product containing a priority toxic substance for which federal law governs notice in a manner that affects state authority to act with respect to that product shall be exempt from the requirements of this act to the extent required to satisfy the limits imposed by the federal law with respect to state action regarding the product.
