Chapter 70.365 RCW

TOXIC POLLUTION

Sections

70.365.010Definitions.
70.365.020Report to the legislaturePriority chemicals.
70.365.030Identification of priority consumer productsReport to the legislatureExempt products.
70.365.040Regulatory actionsReport to the legislatureAuthority to restrict or prohibit priority chemicals.
70.365.050Identification of priority consumer productsRegulatory actionsRulesPublic notice.
70.365.060Confidentiality of information and records.
70.365.070Penalty.
70.365.080Adoption of rules.
70.365.900Short title2019 c 292.


Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Consumer product" means any item, including any component parts and packaging, sold for residential or commercial use.
(2) "Department" means the department of ecology.
(3) "Director" means the director of the department.
(4) "Electronic product" includes personal computers, audio and video equipment, calculators, wireless phones, game consoles, and handheld devices incorporating a video screen that are used to access interactive software, and the peripherals associated with such products.
(5) "Inaccessible electronic component" means a part or component of an electronic product that is located inside and entirely enclosed within another material and is not capable of coming out of the product or being accessed during any reasonably foreseeable use or abuse of the product.
(6) "Manufacturer" means any person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces a product or is an importer or domestic distributor of a product sold or offered for sale in or into the state.
(7) "Organohalogen" means a class of chemicals that includes any chemical containing one or more halogen elements bonded to carbon.
(8) "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS chemicals" means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
(9) "Phenolic compounds" means alkylphenol ethoxylates and bisphenols.
(10) "Phthalates" means synthetic chemical esters of phthalic acid.
(11) "Polychlorinated biphenyls" or "PCBs" means chemical forms that consist of two benzene rings joined together and containing one to ten chlorine atoms attached to the benzene rings.
(12) "Priority chemical" means a chemical or chemical class used as, used in, or put in a consumer product including:
(a) Perfluoroalkyl and polyfluoroalkyl substances;
(b) Phthalates;
(c) Organohalogen flame retardants;
(d) Flame retardants, as identified by the department under chapter 70.240 RCW;
(e) Phenolic compounds;
(f) Polychlorinated biphenyls; or
(g) A chemical identified by the department as a priority chemical under RCW 70.365.020.
(13) "Safer alternative" means an alternative that is less hazardous to humans or the environment than the existing chemical or chemical process. A safer alternative to a particular chemical may include a chemical substitute or a change in materials or design that eliminates the need for a chemical alternative.
(14) "Sensitive population" means a category of people that is identified by the department that may be or is disproportionately or more severely affected by priority chemicals, such as:
(a) Men and women of childbearing age;
(b) Infants and children;
(c) Pregnant women;
(d) Communities that are highly impacted by toxic chemicals;
(e) Persons with occupational exposure; and
(f) The elderly.
(15) "Sensitive species" means a species or grouping of animals that is identified by the department that may be or is disproportionately or more severely affected by priority chemicals, such as:
(a) Southern resident killer whales;
(b) Salmon; and
(c) Forage fish.

NOTES:

Reviser's note: The definitions in this section have been alphabetized pursuant to RCW 1.08.015(2)(k).



Report to the legislaturePriority chemicals.

Every five years, and consistent with the timeline established in RCW 70.365.050, the department, in consultation with the department of health, must report to the appropriate committees of the legislature its decision to designate at least five priority chemicals that meet at least one of the following:
(1) The chemical or a member of a class of chemicals are identified by the department as a:
(a) High priority chemical of high concern for children under chapter 70.240 RCW; or
(b) Persistent, bioaccumulative toxin under chapter 70.105 RCW;
(2) The chemical or members of a class of chemicals are regulated:
(a) In consumer products under chapter 70.240, 70.76, 70.95G, 70.280, 70.285, 70.95M, or 70.75A RCW; or
(b) As a hazardous substance under chapter 70.105 or 70.105D RCW; or
(3) The department determines the chemical or members of a class of chemicals are a concern for sensitive populations and sensitive species after considering the following factors:
(a) A chemical's or members of a class of chemicals' hazard traits or environmental or toxicological endpoints;
(b) A chemical's or members of a class of chemicals' aggregate effects;
(c) A chemical's or members of a class of chemicals' cumulative effects with other chemicals with the same or similar hazard traits or environmental or toxicological endpoints;
(d) A chemical's or members of a class of chemicals' environmental fate;
(e) The potential for a chemical or members of a class of chemicals to degrade, form reaction products, or metabolize into another chemical or a chemical that exhibits one or more hazard traits or environmental or toxicological endpoints, or both;
(f) The potential for the chemical or class of chemicals to contribute to or cause adverse health or environmental impacts;
(g) The chemical's or class of chemicals' potential impact on sensitive populations, sensitive species, or environmentally sensitive habitats;
(h) Potential exposures to the chemical or members of a class of chemicals based on:
(i) Reliable information regarding potential exposures to the chemical or members of a class of chemicals; and
(ii) Reliable information demonstrating occurrence, or potential occurrence, of multiple exposures to the chemical or members of a class of chemicals.



Identification of priority consumer productsReport to the legislatureExempt products.

(1) Every five years, and consistent with the timeline established in RCW 70.365.050, the department, in consultation with the department of health, shall identify priority consumer products that are a significant source of or use of priority chemicals. The department must submit a report to the appropriate committees of the legislature at the time that it identifies a priority consumer product.
(2) When identifying priority consumer products under this section, the department must consider, at a minimum, the following criteria:
(a) The estimated volume of a priority chemical or priority chemicals added to, used in, or present in the consumer product;
(b) The estimated volume or number of units of the consumer product sold or present in the state;
(c) The potential for exposure to priority chemicals by sensitive populations or sensitive species when the consumer product is used, disposed of, or has decomposed;
(d) The potential for priority chemicals to be found in the outdoor environment, with priority given to surface water, groundwater, marine waters, sediments, and other ecologically sensitive areas, when the consumer product is used, disposed of, or has decomposed;
(e) If another state or nation has identified or taken regulatory action to restrict or otherwise regulate the priority chemical in the consumer product;
(f) The availability and feasibility of safer alternatives; and
(g) Whether the department has already identified the consumer product in a chemical action plan completed under chapter 70.l05 RCW as a source of a priority chemical or other reports or information gathered under chapter 70.240, 70.76, 70.95G, 70.280, 70.285, 70.95M, or 70.75A RCW.
(3) The department is not required to give equal weight to each of the criteria in subsection (2)(a) through (g) of this section when identifying priority consumer products that use or are a significant source of priority chemicals.
(4) To assist with identifying priority consumer products under this section and making determinations as authorized under RCW 70.365.040, the department may request a manufacturer to submit a notice to the department that contains the information specified in RCW 70.240.040 (1) through (6) or other information relevant to subsection (2)(a) through (d) of this section. The manufacturer must provide the notice to the department no later than six months after receipt of such a demand by the department.
(5)(a) Except as provided in (b) of this subsection, the department may not identify the following as priority consumer products under this section:
(i) Plastic shipping pallets manufactured prior to 2012;
(ii) Food or beverages;
(iii) Tobacco products;
(iv) Drug or biological products regulated by the United States food and drug administration;
(v) Finished products certified or regulated by the federal aviation administration or the department of defense, or both, when used in a manner that was certified or regulated by such agencies, including parts, materials, and processes when used to manufacture or maintain such regulated or certified finished products;
(vi) Motorized vehicles, including on and off-highway vehicles, such as all-terrain vehicles, motorcycles, side-by-side vehicles, farm equipment, and personal assistive mobility devices; and
(vii) Chemical products used to produce an agricultural commodity, as defined in RCW 17.21.020.
(b) The department may identify the packaging of products listed in (a) of this subsection as priority consumer products.
(6) For an electronic product identified by the department as a priority consumer product under this section, the department may not make a regulatory determination under RCW 70.365.040 to restrict or require the disclosure of a priority chemical in an inaccessible electronic component of the electronic product.



Regulatory actionsReport to the legislatureAuthority to restrict or prohibit priority chemicals.

(1) Every five years, and consistent with the timeline established in RCW 70.365.050, the department, in consultation with the department of health, must determine regulatory actions to increase transparency and to reduce the use of priority chemicals in priority consumer products. The department must submit a report to the appropriate committees of the legislature at the time that it determines regulatory actions. The department may:
(a) Determine that no regulatory action is currently required;
(b) Require a manufacturer to provide notice of the use of a priority chemical or class of priority chemicals consistent with RCW 70.240.040; or
(c) Restrict or prohibit the manufacture, wholesale, distribution, sale, retail sale, or use, or any combination thereof, of a priority chemical or class of priority chemicals in a consumer product.
(2)(a) The department may order a manufacturer to submit information consistent with RCW 70.365.030(4).
(b) The department may require a manufacturer to provide:
(i) A list of products containing priority chemicals;
(ii) Product ingredients;
(iii) Information regarding exposure and chemical hazard; and
(iv) A description of the amount and the function of the high priority chemical in the product.
(3) The department may restrict or prohibit a priority chemical or members of a class of priority chemicals in a priority consumer product when it determines:
(a) Safer alternatives are feasible and available; and
(b)(i) The restriction will reduce a significant source of or use of a priority chemical; or
(ii) The restriction is necessary to protect the health of sensitive populations or sensitive species.
(4) When determining regulatory actions under this section, the department may consider, in addition to the criteria pertaining to the selection of priority chemicals and priority consumer products that are specified in RCW 70.365.020 and 70.365.030, whether:
(a) The priority chemical or members of a class of priority chemicals are functionally necessary in the priority consumer product; and
(b) A restriction would be consistent with regulatory actions taken by another state or nation on a priority chemical or members of a class of priority chemicals in a product.
(5) A restriction or prohibition on a priority chemical in a consumer product may include exemptions or exceptions, including exemptions to address existing stock of a product in commerce at the time that a restriction takes effect.



Identification of priority consumer productsRegulatory actionsRulesPublic notice.

(1)(a) By June 1, 2020, and consistent with RCW 70.365.030, the department shall identify priority consumer products that are a significant source of or use of priority chemicals specified in RCW 70.365.010(12) (a) through (f).
(b) By June 1, 2022, and consistent with RCW 70.365.040, the department must determine regulatory actions regarding the priority chemicals and priority consumer products identified in (a) of this subsection.
(c) By June 1, 2023, the department must adopt rules to implement regulatory actions determined under (b) of this subsection.
(2)(a) By June 1, 2024, and every five years thereafter, the department shall select at least five priority chemicals specified in RCW 70.365.010(12) (a) through (g) that are identified consistent with RCW 70.365.020.
(b) By June 1, 2025, and every five years thereafter, the department must identify priority consumer products that contain any new priority chemicals after notifying the appropriate committees of the legislature, consistent with RCW 70.365.030.
(c) By June 1, 2027, and every five years thereafter, the department must determine regulatory actions for any priority chemicals in priority consumer products identified under (b) of this subsection, consistent with RCW 70.365.040.
(d) By June 1, 2028, and every five years thereafter, the department must adopt rules to implement regulatory actions identified under (c) of this subsection.
(3)(a) The designation of priority chemicals by the department does not take effect until the adjournment of the regular legislative session immediately following the identification of chemicals, in order to allow an opportunity for the legislature to add to, limit, or otherwise amend the list of priority chemicals to be considered by the department.
(b) The designation of priority consumer products by the department does not take effect until the adjournment of the regular legislative session immediately following the identification of priority consumer products, in order to allow an opportunity for the legislature to add to, limit, or otherwise amend the list of priority consumer products to be considered by the department.
(c) The determination of regulatory actions by the department does not take effect until the adjournment of the regular legislative session immediately following the determination by the department, in order to allow an opportunity for the legislature to add to, limit, or otherwise amend the regulatory determinations by the department.
(d) Nothing in this subsection (3) limits the authority of the department to:
(i) Begin to identify priority consumer products for a priority chemical prior to the effective date of the designation of a priority chemical;
(ii) Begin to consider possible regulatory actions prior to the effective date of the designation of a priority consumer product; or
(iii) Initiate a rule-making process prior to the effective date of a determination of a regulatory action.
(4)(a) When identifying priority chemicals and priority consumer products under this chapter, the department must notify the public of the selection, including the identification of the peer-reviewed science and other sources of information that the department relied upon, the basis for the selection, and a draft schedule for making determinations. The notice must be published in the Washington State Register. The department shall provide the public with an opportunity for review and comment on the regulatory determinations.
(b)(i) By June 1, 2020, the department must create a stakeholder advisory process to provide expertise, input, and a review of the department's rationale for identifying priority chemicals and priority consumer products and proposed regulatory determinations. The input received from a stakeholder process must be considered and addressed when adopting rules.
(ii) The stakeholder process must include, but is not limited to, representatives from: Large and small business sectors; community, environmental, and public health advocacy groups; local governments; affected and interested businesses; an expert in scientific data analysis; and public health agencies.



Confidentiality of information and records.

(1) A manufacturer that submits information or records to the department under this chapter may request that the information or records be made available only for the confidential use of the department, the director, or the appropriate division of the department. The director shall give consideration to the request and if this action is not detrimental to the public interest and is otherwise within accord with the policies and purposes of chapter 43.21A RCW, the director must grant the request for the information to remain confidential as authorized in RCW 43.21A.160. Under the procedures established under RCW 43.21A.160, the director must keep confidential any records furnished by a manufacturer under this chapter that relate to proprietary manufacturing processes or chemical formulations used in products or processes.
(2) For records or other information furnished to the department by a federal agency on the condition that the information be afforded the same confidentiality protections as under federal law, the director may determine that the information or records be available only for the confidential use of the director, the department, or the appropriate division of the department. All such records and information are exempt from public disclosure. The director is authorized to enter into an agreement with the federal agency furnishing the records or information to ensure the confidentiality of the records or information.



Penalty.

(1) A manufacturer violating a requirement of this chapter, a rule adopted under this chapter, or an order issued under this chapter, is subject to a civil penalty not to exceed five thousand dollars for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty not to exceed ten thousand dollars for each repeat offense.
(2) Any penalty provided for in this section, and any order issued by the department under this chapter, may be appealed to the pollution control hearings board.
(3) All penalties collected under this chapter shall be deposited in the state toxics control account created in *RCW 70.105D.070.

NOTES:

*Reviser's note: RCW 70.105D.070 was amended by 2019 c 95 § 4 and repealed by 2019 c 422 § 415. For rules of construction, see RCW 1.12.025.



Adoption of rules.

(1) The department may adopt rules as necessary for the purpose of implementing, administering, and enforcing this chapter.
(2)(a) The department must adopt rules to implement the determinations of regulatory actions specified in RCW 70.365.040(1) (b) or (c). When proposing or adopting rules to implement regulatory determinations specified in this subsection, the department must identify the expected costs and benefits of the proposed or adopted rules to state agencies to administer and enforce the rules and to private persons or businesses, by category of type of person or business affected.
(b) A rule adopted to implement a regulatory determination involving a restriction on the manufacture, wholesale, distribution, sale, retail sale, or use of a priority consumer product containing a priority chemical may take effect no sooner than three hundred sixty-five days after the adoption of the rule.
(c) Each rule adopted to implement a determination of regulatory action specified in RCW 70.365.040(1) (b) or (c) is a significant legislative rule for purposes of RCW 34.05.328. The department must prepare a small business economic impact statement consistent with the requirements of RCW 19.85.040 for each rule to implement a determination of a regulatory action specified in RCW 70.365.040(1) (b) or (c).



Short title2019 c 292.

This act may be known and cited as the pollution prevention for healthy people and Puget Sound act.