HB1270 97TH GENERAL ASSEMBLY

LRB097 06599 JDS 46684 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1270

Introduced 02/08/11, by Rep. Elaine Nekritz

SYNOPSIS AS INTRODUCED:

New Act

Creates the Toxic Chemical Safety Act. Requires the Director of the Illinois Environmental Protection Agency to publish a list of chemicals of high concern. Authorizes the Director to designate chemicals of high concern and other chemicals as priority chemicals. Requires the Director to report certain information about the designation process to the General Assembly. Requires each manufacturer and distributor of children's products that contain designated chemicals to provide certain information to the Director. Authorizes the Director, under certain circumstances, to prohibit, by rule, the sale and distribution of children's products containing a priority chemical. Requires manufacturers and distributors whose products are subject to one of these rules to file a compliance plan. Authorizes manufacturers and distributors to apply for, and the Director to grant, waivers from these rules. Exempts certain classes of chemicals, persons, and containers. Authorizes the Director to participate in an interstate clearinghouse to promote chemical safety. Authorizes the Director to request certificates of compliance from manufacturers and distributors. Requires the Director to develop certain educational materials. Creates the Advisory Council on Toxic Substances to provide expert and scientific advice to the Director. Authorizes the Director to adopt rules necessary to implement these provisions.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Toxic Chemical Safety Act.

Section 5. Statement of policy. It is the policy of the State of Illinois to protect public health and the environment by reducing the exposure of its citizens and vulnerable populations, such as children, to toxic chemicals, when safer alternatives exist.

Section 10. Definitions. As used in this subchapter:

"Alternative" means a substitute process, product, material, chemical, strategy, or combination that serves a functionally equivalent purpose to a priority chemical or chemical of high concern.

"Chemical" means a substance with a distinct molecular composition or a group of structurally related substances and includes the products that form through the decomposition or metabolism of the substance.

"Chemical of high concern" means a chemical identified by the Director under Section 15 of this Act.

"Chemical of low concern" means a chemical for which adequate toxicity and environmental data are available to determine that it is not a chemical of high concern, a chemical of moderate concern, or a chemical of unknown concern.

"Chemical of moderate concern" means a chemical identified by an authoritative governmental entity on the basis of credible scientific evidence as being suspected of causing one or more of the adverse health or environmental effects set forth under subsection (a) of Section 15 of this Act.

"Chemical of unknown concern" means a chemical for which insufficient data are available to classify it as a chemical of high concern, a chemical of moderate concern, or a chemical of low concern.

"Children's product" means:

(1) a consumer product intended for use by children, such as a baby product, toy, car seat, personal care product, or clothing; and

(2) any consumer product containing a chemical of high concern that when used or disposed of will likely result in a child being exposed to that chemical.

"Consumer product" means any item sold for residential or commercial use, including any component or packaging. "Consumer product" does not include:

(1) A food or beverage or an additive to a food or beverage.

(2) A tobacco product.

(3) A paper or forest product.

(4) A pesticide regulated by the U.S. Environmental Protection Agency.

(5) A drug or biologic regulated by the U.S. Food and Drug Administration or the packaging of such a drug or biologic if the U.S. Food and Drug Administration regulates the drug or biologic's packaging.

"Director" means the Director of the Illinois Environmental Protection Agency.

"Distributor" means a person who sells a consumer product to a retail establishment on a wholesale basis.

"Manufacturer" means any person who manufactures a final consumer product or whose brand name is affixed to the consumer product. In the case of a consumer product imported into the State and distributed, sold, or offered for sale in the State, "manufacturer" includes the importer or domestic distributor of the consumer product if the person who manufactured or assembled the consumer product or whose brand name is affixed to the consumer product does not have a presence in the United States.

"Priority chemical" means a chemical identified as such by the Director under Section 20 of this Act.

"Safer alternative" means an alternative that, when compared to a priority chemical that it could replace, would reduce the potential for harm to human health or the environment or that has not been shown to pose the same or greater potential for harm to human health or the environment as the priority chemical.

Section 15. Chemical of high concern.

(a) On or before January 1, 2013, the Director shall publish a list of chemicals of high concern to public health or the environment of the State of Illinois. The Director shall update the list of chemicals of high concern as necessary and at least annually. A chemical or other substance may be included on the list of chemicals of high concern if the Director determines that it has been identified by an authoritative governmental entity on the basis of credible scientific evidence as being known as one or more of the following:

(1) A carcinogen.

(2) A mutagen.

(3) A reproductive or developmental toxin.

(4) An endocrine disruptor.

(5) A persistent or bioaccumulative toxin.

(b) The Director may revise the list as needed and may add a chemical to the list of chemicals of high concern if it meets one or more of the criteria of subsection (a) of this Section. The Director may remove a chemical from the list of chemicals of high concern if, based on evidence, the Director determines that the chemical does not meet or no longer meets one or more of the criteria of subsection (a) of this Section.

Section 20. Priority chemicals.

(a) The Director shall designate as a priority chemical any chemical classified as "known to be a human carcinogen" in the most recent report on carcinogens by the National Toxicology Program in the U.S. Department of Health and Human Services.

(b) The Director may designate a chemical of high concern as a priority chemical if the Director finds one or more of the following:

(1) The chemical has been found through biomonitoring to be present in human blood, umbilical cord blood, breast milk, urine, or other bodily tissues or fluids.

(2) The chemical has been found through sampling and analysis to be present in household dust, indoor air, drinking water, or elsewhere in the home environment.

(3) The chemical has been found through monitoring to be present in fish, wildlife, or the natural environment.

(4) The chemical has been found to be present in a consumer product used or present in the home.

(5) The chemical has been identified as a high production volume chemical by the U.S. Environmental Protection Agency.

(6) The sale or use of the chemical or a product containing the chemical has been banned in another state within the United States.

(c) In reviewing the list of chemicals of high concern for designation as a priority chemical under subsection (b) of this Section, the Director shall prioritize designation of chemicals that have been one or more of the following:

(1) Characterized as "reasonably anticipated to be a human carcinogen" in the most recent report on carcinogens by the National Toxicology Program in the U.S. Department of Health and Human Services.

(2) Classified as "likely to be carcinogenic to humans" in the U.S. Environmental Protection Agency's most recent list of chemicals evaluated for carcinogenic potential.

(3) Identified by the U.S. Environmental Protection Agency as causing birth defects, hormone disruption, or harm to reproduction or development.

(d) Beginning January 1, 2013, the Director shall report annually to the General Assembly with a summary of the chemicals reviewed for designation under this Section, a description of the review, and the number of chemicals designated as priority chemicals under this Section.

Section 25. Priority chemical notification of use.

(a) No later than 180 days after the Director designates a priority chemical under Section 20 of this Act, each manufacturer and distributor of a children's product that is distributed, sold, or offered for sale in Illinois and that contains the priority chemical designated by the Director shall notify the Director in writing of the presence of the priority chemical in the children's product. The notification shall:

(1) identify the children's product;

(2) disclose the number of units of the children's product sold or distributed in the State;

(3) specify the priority chemical or chemicals and the amount of chemical or chemicals contained in the children's product; and

(4) describe the intended purpose or use of the priority chemical in the children's product.

(b) Each manufacturer and distributor of a children's product that contains a priority chemical shall provide the following additional information if requested by the Director:

(1) information on the likelihood that the chemical will be released from the children's product to the environment during the product's life cycle and the extent to which users of children's products are likely to be exposed to the chemical;

(2) information on the extent to which the chemical is present in the environment or human body; and

(3) an assessment of the availability, cost, feasibility, and performance, including potential for harm to public health and the environment, or alternatives to the priority chemical and the reason the priority chemical was used in the manufacture of the children's product in lieu of the identified alternatives. If an assessment acceptable to the Director is not timely submitted, the Director may assess the manufacturer or distributor the cost of a report conducted by an independent contractor of the Director's choice on the availability of safer alternatives.

Section 30. Prohibition on sale.

(a) The Director may prohibit, by rule, the manufacture, sale, or distribution in the State of a children's product containing a priority chemical if the Director determines, after consideration of the information submitted under Section 25 of this Act and other relevant information obtained by the Director, that:

(1) distribution of the children's product directly or indirectly exposes children and vulnerable populations to the priority chemical; and

(2) one or more safer alternatives to the priority chemical are available at a comparable cost.

(b) If, under subsection (a) of this Section, the Director identifies several safer alternatives to a priority chemical, the Director may ban the sale of children's products that do not contain the alternative that is the least toxic to public health or the environment.

(c) A prohibition adopted by rule under this Section shall have an effective date of at least 12 months after the date the final rule is published in the Illinois Register.

(d) For the purpose of determining whether a safer alternative is available under subsection (a) of this Section, the Director may, in the absence of persuasive evidence to the contrary:

(1) presume that an alternative is a safer alternative if the alternative is not a chemical of high concern;

(2) presume that a safer alternative is available if the sale of the children's product containing the priority chemical has been banned by another state within the United States;

(3) presume that a safer alternative is available if the children's product containing the priority chemical is an item of apparel or a novelty; and

(4) presume that a safer alternative is available if the alternative is sold in the United States.

(e) At least 180 days before the effective date of a prohibition of a priority chemical adopted under subsection (a) of this Section, each manufacturer and distributor of a children's product that contains the priority chemical that is subject to the prohibition shall file a compliance plan with the Director or shall seek a waiver from the Director under subsection (g) of this Section. A compliance plan submitted under this subsection shall:

(1) identify the children's product that contains a priority chemical;

(2) specify whether compliance with a prohibition on a priority chemical will be achieved by discontinuing the sale of the children's product in the State or by substituting a safer alternative in the product; and

(3) if compliance is to be achieved by substitution of a safer alterative in the product, identify the safer alternative and the timetable for substitution.

(f) A manufacturer or distributor of a children's product that contains a priority chemical shall notify all persons that offer the children's product for sale or distribution in the State of the requirements of this Act and whether the children's product is subject to a prohibition on sale adopted under subsection (a) of this Section.

(g)(1) The manufacturer or distributor of a children's product that contains a priority chemical and that is subject to a prohibition adopted under subsection (a) of this Section may apply to the Director for a waiver for one or more specific uses of the priority chemical. The waiver application shall, at a minimum:

(A) identify the specific children's product use or uses for which the waiver is sought;

(B) identify the alternatives considered for substitution of the priority chemical;

(C) explain the alternatives considered for substitution of the priority chemical; and

(D) identify the steps that have been and will be taken to minimize the use of the priority chemical.

(2) The Director may grant a waiver under this subsection with or without conditions upon a finding that (i) there is a need for the children's product in which the priority chemical is used and (ii) there are no technically or economically feasible alternatives for the use of the priority chemical in the children's product. A waiver may be granted for a term not to exceed 5 years and may be renewed for one additional 5-year term upon written application demonstrating that technically or economically feasible alternatives remain unavailable. The Director shall grant or deny a request for a waiver under this subsection within 60 days after receipt of an administratively complete application for a waiver.

Section 35. Exemptions. The requirements of this Act shall not apply to:

(1) Chemicals in used products.

(2) Priority chemicals used in or for industry or manufacturing.

(3) Priority chemicals generated solely as a combustion byproduct or that are present in combustible fuels.

(4) A person selling a children's product at retail unless the person knowingly sells a children's product containing a priority chemical after the effective date of a prohibition adopted under Section 30 of this Act.

(5) A container or packaging for a food or beverage product unless the product is intentionally marketed for the use of children under 3 years of age.

Section 40. Interstate clearinghouse for safer chemicals. The Director is authorized to participate, in cooperation with other states and governmental entities, in an interstate clearinghouse to classify existing chemicals and to promote safer chemicals in consumer products. The Director may also cooperate with an interstate clearinghouse in order to:

(1) organize and manage available data on chemicals, including information on uses, hazards, and environmental concerns;

(2) produce and inventory information on (i) safer alternatives to uses of chemicals of concern and (ii) model policies and programs;

(3) provide businesses and consumers with technical assistance regarding the use of safer chemicals; and

(4) undertake other activities in support of State programs to promote the use of safer chemicals.

Section 45. Certificate of compliance. In addition to any remedies or procedures authorized by this Act, the Director may request each manufacturer and distributor of a product offered for sale or distribution in the State to provide the Director with a certificate of compliance with the requirements of this Act and rules adopted thereunder. Within 10 days after receipt of a request from the Director under this Section, the manufacturer or distributor shall do one of the following:

(1) Provide the Director with a certificate attesting that the product does not contain the priority chemical or is not subject to the requirements of this Act.

(2) Notify persons who sell or distribute the product in the State that the sale of the product is prohibited and shall provide the Director with a list of the names and addresses of those notified.

Section 50. Education and consultation. The Director shall develop educational materials regarding the requirements of this Act for distribution to manufacturers, distributors, and retailers. The Director shall consult with retailers and retailer associations in order to assist retailers in complying with the requirements of this Act.

Section 55. Advisory Council on Toxic Substances.

(a) There is created an Advisory Council on Toxic Substances to provide expert and scientific advice to the Director regarding identification of chemicals of high concern, designation of priority chemicals, and identification of safer alternative chemicals. The Advisory Council on Toxic Substances shall annually recommend to the Director:

(1) strategies or actions to reduce public health risks from exposure to chemicals of high concern. In identifying public health risks, the Advisory Council on Toxic Substances shall with heightened scrutiny evaluate potential public health risks to citizens of the State of Illinois;

(2) restrictions on or prohibitions of the distribution, sale, or use of a chemical of high concern;

(3) public disclosure requirements for a manufacturer of a chemical of high concern or a product containing a chemical of high concern; and

(4) safer alternative chemicals to chemicals of high concern.

(b) The Advisory Council on Toxic Substances shall consist of the following members:

(1) one member of the House of Representatives, appointed by the Speaker;

(2) one member of the Senate, appointed by the President of the Senate;

(3) the Director or his or her designee;

(4) the Director of Public Health or his or her designee;

(5) the Director of Agriculture or his or her designee;

(6) the Attorney General or his or her designee;

(7) a representative of a Solid Waste Management District, appointed by the Director;

(8) an Illinois toxicologist, appointed by the Director;

(9) a representative of the Illinois retail community, appointed by the Director;

(10) a representative of the Illinois manufacturing community, appointed by the Director;

(11) a representative of an Illinois college or university, appointed by the Director;

(12) a representative of the Illinois medical community, appointed by the Director;

(13) a representative of a statewide consumer interest group, appointed by the Director;

(14) a representative of a statewide environmental group, appointed by the Director; and

(15) a scientist knowledgeable about matters related to toxic substances, appointed by the Director.

(c) The Advisory Council on Toxic Substances shall report annually to the General Assembly by January 15 with a summary of the recommendations presented to the Director under subsection (a) of this Section.

(d) The Environmental Protection Agency shall provide the Advisory Council on Toxic Substances with technical, legal, and administrative staff support as needed.

Section 60. Rulemaking. The Director may adopt rules to implement the requirements of this Act.