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BILL AS INTRODUCED 2007-2008

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S.292

Introduced by   Senator Lyons of Chittenden District

Referred to Committee on

Date:

Subject:  Conservation and development; toxic substances

Statement of purpose:  This bill proposes to establish a toxic substance identification program within the agency of natural resources.  Manufacturers and distributors of products containing priority toxic substances would be required to notify the agency of natural resources and provide the public with information regarding the potential health effects of the priority toxic substance.  An advisory council on toxic substances would also be established to propose safer alternatives to priority toxic substances and to review the efficacy of the state’s toxic use reduction and hazardous waste reduction programs.  If the advisory council recommends a safer alternative to a priority toxic substance, the secretary of natural resources shall adopt by rule a chemical action plan for replacing the priority toxic substance with the safer alternative.  If a chemical action plan requires substitution of a safer alternative for a priority toxic substance, manufacturers and distributors of the product would have a duty to reclaim from consumers products containing the priority toxic substance.

AN ACT RELATING TO ESTABLISHING THE TOXIC SUBSTANCES IDENTIFICATION PROGRAM

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Increasingly, scientific evidence links many chronic diseases, such as asthma, Parkinson’s disease, autoimmune diseases, and certain cancers, with repeated and increased exposure to toxic substances.

(2)  Over 80,000 synthetic chemicals have been produced in the United States over the past 50 years, but little is known about how such chemicals ultimately impact human health and the environment.

(3)  The toxic substances and hazardous waste reduction programs within the agency of natural resources have helped reduce the amount of toxic substances and hazardous waste used or generated in Vermont, but as more and more consumer products are recalled from the market due to the presence of dangerous toxic and hazardous substances, Vermont must do more to protect its children, human health, and the environment from the effects of toxic and hazardous substances.

(4)  Other countries have already adopted policies - such as the European Union Directive on General Product Safety and the European Union Scientific Committee on Consumer Products - that are focused on consumer health and safety and that are more restrictive regarding the use of toxic chemicals.

(5)  There are safer alternatives available for many toxic substances in use today by Vermont businesses and those that sell products within Vermont.

(6)  Therefore, Vermont should strive to reduce the use of priority toxic substances in goods manufactured and distributed in the state and should strive to require safer alternatives to toxic substances to be used in consumer products manufactured in the state when such substitution is feasible.

Sec. 2.  10 V.S.A. § 6624 is amended to read:

§ 6624.  DEFINITIONS

For purposes of this subchapter, in addition to the provisions of section 6602 of this title, the following definitions apply:

(1)  “Class A generator” means a generator who generates 1000 kg (2,200 lbs) or more of hazardous waste in one calendar month.

(2)  “Class B generator” means a generator who generates more than

100 kg (220 lbs) but less than 1000 kg (2,200 lbs) of hazardous waste in one calendar month and generates more than 1200 kg (2,640 lbs) of hazardous waste in one calendar year.

(3)  “Exempt small quantity generator” means a generator, as defined by 40 CFR Section 261.5, who generates less than 100 kg (220 lbs) of hazardous waste or who generates less than 1 kg (2.2 lbs) of acute hazardous waste in one calendar month.

(4)  “Large user” means a facility with ten or more full-time employees that is in the Standard Industrial Classification (SIC) Code required by the secretary to report and that:

(A)  Manufactures, processes or otherwise uses, exclusive of sales or distribution, more than 4545.5 kg (10,000 lbs) of a toxic substance per year; or

(B)  Manufactures, processes or otherwise uses, exclusive of sales or distribution, more than 454.4 kg (1,000 lbs) but less than 4545.5 kg (10,000 lbs) of a toxic substance per year if that substance accounts for more than ten percent of the total of toxic substances used at the facility during the year.

(5)(A)  “Hazardous waste reduction” means any recycling or other activity applied after hazardous waste is generated that is consistent with the general goal of reducing present and future threats to public health, safety, and the environment. Reduction may be proportionate to the increase or decrease in production or other business changes. The recycling or other activity shall result in:

(i)  the reduction of total volume or quantity of hazardous waste generated that would otherwise be treated, stored, or disposed of; or

(ii)  the reduction of toxicity of hazardous waste that would otherwise be treated, stored, or disposed of; or

(iii)  both the reduction of total volume or quantity and the reduction of toxicity of hazardous waste.

(B)  “Hazardous waste reduction” shall not:

(i)  result in the significant transfer of hazardous constituents from one environmental medium to another;

(ii)  include concentrating waste solely for the purposes of reducing volume;

(iii)  use dilution as a means of reducing toxicity; or

(iv)  include incineration.

(C)  “Hazardous waste reduction” may include on-site and off-site treatment where it can be shown that such treatment confers a higher degree of protection of the public health, safety and the environment than other technically and economically practicable waste reduction alternatives.

(6)  “Risk reduction” means a reduction in volume or toxicity, or both, of a hazardous or toxic substance by a method that does not merely shift the risk to another environmental medium, or create a new environmental risk to human health or the environment.

(7)  "Toxic substance" or "toxics" mean any substance in a gaseous, liquid or solid state listed pursuant to Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986.  This list of substances may be altered as specified in subsection 6625(d) of this title.  "Toxic substance" or "toxics" does not include constituents of fuels used to provide energy, unless those fuels include hazardous wastes from a generator's process.

(8)(A)  “Toxics use reduction” means in-plant changes in production or other processes or operations, products or raw materials that reduce, avoid or eliminate the use or production of toxic substances or raw materials that result in generation of hazardous wastes, without creating substantial new risks to public health, safety and the environment, through the application of any of the following techniques:

(i)  input substitution, meaning to replace a toxic substance, or a raw material that results in the generation of hazardous waste, used in a production or other process or operation with a nontoxic or less toxic substance;

(ii)  product reformulation, meaning to modify an existing end product in order to reduce toxic substance inputs or raw materials that result in the generation of hazardous wastes;

(iii)  production or other process or operation redesign or modifications;

(iv)  production or other process or operation modernization, including upgrading or replacing existing equipment and methods with other equipment and methods;

(v)  improved operation and maintenance controls of production or other process or operation equipment and methods, by modifying or adding to existing equipment or methods, including techniques such as improved housekeeping practices, system adjustments, product and process inspections or production or other process or operation control equipment or methods; or

(vi)  recycling, reuse, or extended use of toxics, or raw materials that result in the generation of hazardous waste, by using equipment or methods that become an integral part of the production or other process or operation of concern, including filtration and other methods.

(B)  “Toxics use reduction” includes proportionate changes in the usage of a particular toxic substance, or a raw material that results in the generation of hazardous waste, by any of the methods set forth in subdivision (8)(A) of this section as the usage of that toxic substance or raw material changes as a result of production changes or other business changes.

(9)  “Toxics use” means use or production of a toxic substance, exclusive of sales or distribution.

(10)  “Distributor” means any person who distributes products through a retail establishment or on a wholesale basis, including a person who owns a retail establishment and distributes products to other retail establishments.  Distribution includes transactions conducted through the mail, sales outlets, catalogues, and the Internet.

(11)  “Manufacturer” means any person that produces a product containing a priority toxic substance or manufactures a product through a process that utilizes a priority toxic chemical.

(12)  “Person” means any natural person, corporation, firm, association, partnership, corporation, governmental entity, organization, combination, joint venture, municipality, the state of Vermont, or any department, agency, or subdivision of the state, or other legal entity.

(13)  “Priority toxic substance” means any of the following substances:

(A)  Di (2-ethylhexyl) phthalate;

(B)  Dioxins;

(C)  Dichloropehenoxyacetic acid;

(D)  Formaldehyde;

(E)  Furans;

(F)  Hexavalent chromium;

(G)  Lead;

(H)  Organophosphate pesticides;

(I)  Perchloroethylene;

(J)  Polybrominated diphenyl ethers; and

(K)  Any other substance designated as a priority toxic substance by the secretary of natural resources under subsection 6625(d) of this title.


Sec. 3.  10 V.S.A. § 6625 is amended to read:

§ 6625.  TOXICS USE REDUCTION AND, HAZARDOUS WASTE

               REDUCTION, AND TOXIC SUBSTANCE IDENTIFICATION

               PROGRAM

(a)  The secretary shall establish a program for toxics use reduction and, hazardous waste reduction, and toxic substance identification pursuant to this subchapter.

(b)  The secretary shall coordinate the activities of all state agencies with responsibilities and duties relating to toxics use and hazardous waste and shall promote coordinated efforts to encourage toxics use reduction and hazardous waste reduction, with emphasis on the merits of use reduction as a means of reducing the amount of hazardous waste generated or hazardous material released into the environment.  Coordination between the program and other relevant state agencies and programs shall, to the fullest extent possible, include joint planning processes and joint research and studies.

(c)  The planning and reporting requirements of this subchapter shall apply only to generators who routinely generate, through ongoing process and operation, more than 1,200 kg (2640 lbs) of hazardous waste per year or more than 12 kg (26.4 lbs) of acutely hazardous waste per year, and to large users.

(d)  The secretary shall adopt rules to carry out this subchapter.  The rules shall include a provision for exempting from the requirements of this subchapter generators for whom the secretary determines no source reduction opportunities exist.  The secretary may, by rule, add or remove any toxic substance or hazardous waste from the provisions of this subchapter.  In order to add or remove any toxic substance or hazardous waste from the provisions of this subchapter, the secretary shall make findings with respect to toxicity, potential impact on public health and the environment and the potential for use reduction or waste reduction of the toxic substance or hazardous waste.  The secretary may, in his or her own discretion or at the recommendation of the advisory council on toxic substances, adopt by rule priority toxic substances in addition to those listed under subdivision 6624(13) of this title.

(e)  The secretary shall adopt, by rule, a list of SIC codes that identifies those facilities that are subject to this subchapter as a large user.  The list initially must include SIC codes 20 through 39. In adding additional SIC codes, the secretary shall make findings with respect to chemical use within the SIC category, and shall find:

(1)  that the potential impact on public health and the environment is significant, and

(2)  that the potential for use reduction and waste reduction within the category is significant.

(f)  This subchapter shall not apply to farmers, dealers or applicators regulated under chapters 81 and 87 of Title 6, or any other persons to the extent they are regulated under any other chapters of Title 6.

Sec. 4.  10 V.S.A. §§ 6633–6636 are added to read:

§ 6633.  ADVISORY COUNCIL ON TOXIC SUBSTANCES

(a)  The advisory council on toxic substances is established and attached to the agency of natural resources.  Members of the council, except those public members appointed by the governor, shall be qualified individuals who, by experience and training, are knowledgeable in one or more areas associated with toxic substances.  The council shall consist of:

(1)  The secretary of natural resources or his or her designee;

(2)  The secretary of commerce or his or her designee;

(3)  The commissioner of health or his or her designee;

(4)  One physician from the College of Medicine of the University of Vermont nominated by its dean;

(5)  One epidemiologist or member of a similar scientific field recommended by the commissioner of health;

(6)  One representative of a the manufacturing or distribution industries appointed by the governor;

(7)  One member of an environmental group appointed by the governor; and

(8)  Two members appointed by the governor.  In choosing these members, the governor shall consider people who have knowledge and qualities that could be useful in pursuing the goals and functions of the council.

(b)  Each state or university member of the council shall serve until his or her resignation or until his or her successor is appointed or otherwise designated in accordance with this chapter.  Public members of the advisory council on toxic substances shall be appointed for terms of three years; except initially, appointments shall be made such that one member shall serve for a term of one year and one for a term of two years.

(c)  The secretary of natural resources or his or her designee shall serve as chair of the council and shall coordinate activities on the council.

(d)  The functions of the council are to:

(1)  Review the effect and efficacy of toxic use reduction and hazardous waste reduction programs established under this subchapter, including the effect of such programs on human health and the environment.

(2)  Recommend improvements to the toxic use reduction and hazardous waste reduction programs established under this chapter in order to improve the efficacy of such programs.

(3)  Serve as the advisory group to state agencies having responsibilities for the regulation of toxic substances and hazardous waste as well as to other state agencies and departments.

(4)  Recommend to the secretary of natural resources additional toxic substances that should be added by rule to the list of priority toxic substances under subsection 6625(d) of this title.

(5)  Issue to the secretary of natural resources reports on safer alternatives when the council determines that a safer alternative exists to a priority toxic substance.  Safer-alternative reports shall be based on information and research available to the council, including the European Union Directive on General Product Safety and the negative consumer products list issued by the European Union Scientific Committee on Consumer Products.  In reviewing safer alternatives to toxic substances, the council shall consult with interested parties.  A safer-alternative report issued by the council shall include an analysis of the cost and feasibility of implementing substitution of the identified safer alternative.

(6)  Issue to the secretary a determination that a priority toxic substance be prohibited from use in the state and products containing the toxic substance be removed from the market even though the council cannot identify a safer alternative to the priority toxic substance.

(7)  Advise the executive branch of state government with respect to legislation concerning the use of toxic substances and disposition of hazardous waste.

(8)  Suggest programs, policies, and legislation for wise and effective use of toxic substances that lead to an overall reduction in the use of toxic substances and an overall reduction in the generation of hazardous waste in Vermont.

(e)  The council shall meet semiannually, once in the fall and once in the spring.  Meetings at other times may be called by the governor, by the chair, or by a member of the council.  Council proceedings shall be open to the public, and its deliberations shall be recorded and made available to the public, along with its work product.

§ 6634.  REGISTRATION OF USE OF PRIORITY TOXIC SUBSTANCES

(a)  Any person that manufactures or distributes a product in Vermont that contains a priority toxic substance shall notify the agency of natural resources on a form provided by the agency of the following information:

(1)  the name of the product, including all potential names or brands under which the product may be sold;

(2)  the approximate number of units of the product distributed in the state;

(3)  an estimate of the amount or concentration of the priority toxic substance contained in each unit of the product;

(4)  the purpose for including the priority toxic substance in the product;

(5)  the name and address of the manufacturer of the product; and

(6)  the name, address, and phone number of a person to contact regarding the product and any health effects of the product.

(b)  The secretary of natural resources may authorize a manufacturer, distributor, or trade group to supply the information required under subsection (a) of this section of a product category rather than an individual product.  Information submitted under this subsection shall be updated whenever there is a significant change in the information or when requested by the secretary of natural resources and at a minimum of every three years after the initial notification for the product category.

§ 6635.  CHEMICAL ACTION PLANS

(a)  After receipt of a safer-alternative report from the advisory council on toxic substances, the secretary of natural resources shall adopt by rule a chemical action plan for the toxic substance identified in the report.  The chemical action plan shall be designed to require users of a priority toxic substance within the state to act as expeditiously as possible to substitute a safer alternative for a priority toxic substance.

(b)  Each chemical action plan adopted under this section shall include the following:

(1)  Timetables, schedules, and deadlines for the substitution of the identified priority toxic substance with a safer alternative.

(2)  Requirements for all legal entities using the priority toxic substance within the state to develop a substitution plan to demonstrate how that entity will substitute all uses of the chemical with safer alternatives.  A substitution plan shall include:

(A)  identification of all uses of a priority toxic substance;

(B)  identification of all alternatives considered, their cost, and the feasibility of substitution;

(C)  selection of preferred alternatives that will achieve the objectives and schedules set out in the relevant chemical action plan;

(D)  a timetable, schedules, and deadlines for implementing the preferred alternatives; and

(E)  a method to measure and assure the full substitution of the priority toxic substance.

(3)  Priorities for state agency action based on the safer-alternative report from the advisory council on toxic substances.

(4)  Specific tasks assigned to the agency of natural resources 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-alternative report indicates that safer alternatives are feasible and of comparable cost, the agency of natural resources shall be required to set and enforce deadlines within one year for certifying substitution of safer alternatives.

(B)  If the safer-alternative report finds that safer alternatives are feasible, but require extensive capital expenditure or training, the agency of natural resources, in consultation with the agency of commerce and community development, shall develop a business assistance program to provide technical and financial assistance to businesses required to transition.

(6)  Recommendations on opportunities and needs for investment in Vermont businesses and research and development institutions to promote the implementation of safer alternatives to toxic chemicals that could bring the most benefit to the state’s economy through safe jobs and economic growth.

(c)  After the agency of natural resources has developed a chemical action plan, all state agencies shall take any required implementing actions set forth in the chemical action plan or under this subchapter.

(d)  The secretary of natural resources may adopt rules to implement this section, including:

(1)  the establishment of deadlines and substitution planning for in-state and out-of-state businesses implementing substitution plans;

(2)  reporting requirements for businesses implementing substitution plans; and

(3)  methods for a business to receive certification of completion of a substitution plan.

§ 6636.  MANUFACTURER DUTY TO RECLAIM PRODUCTS

A manufacturer or distributor shall have a duty to reclaim from retailers and consumers any products sold after January 1, 2010 for which a regulation of the agency of natural resources under this subchapter requires substitution and discontinuation of the product distribution.  The manufacturer shall compensate the distributor or consumer for the full price of the reclaimed product. 

Sec. 5.  AGENCY OF NATURAL RESOURCES REPORT

On or before January 15, 2009, the secretary of natural resources shall report to the house and senate committees on natural resources and energy and the house committee on fish, wildlife and water resources regarding implementation of the toxic substances identification program required by this act.  The report shall include:

(1)  An estimate of the staff and resources required to implement the program;

(2)  A  recommendation on how agency staff from the mercury advisory committee and the mercury education and reduction campaign can be used to implement the toxic substances identification program;

(3)  A summary of activities of the advisory council on toxic substances, including any recommendations or safer alternative reports issued by the council.

Sec. 6.  EFFECTIVE DATE

(a)  This section and Secs. 1 (findings), 2 (definitions), 3 (toxic substance identification program), and 5 (agency of natural resources report) of this act shall take effect July 1, 2008.

(b)  10 V.S.A. § 6633 (advisory council on toxic substances) shall take effect July 1, 2008.

(c)  10 V.S.A. §§ 6634 (registration of priority toxic substances),

6635 (chemical action plans), and 6636 (manufacturer duty to reclaim products) shall take effect January 1, 2010.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us