Polybrominated Diphenyl Ethers (PBDEs) Law

A Summary of the PBDE Law passed in Washington State in 2007

• Effective January 1, 2008, the use of commercial Deca-BDE in mattresses is prohibited in Washington.
• By December 15, 2008, The Department of Ecology (Ecology) and the Department of Health (DOH) are to review risk assessments, scientific studies, and other relevant findings regarding alternatives to the use of commercial deca-bde in residential upholstered furniture, televisions, and computers. Ecology and DOH are to document these findings and the findings of the fire safety committee in a report to the legislature by December 15, 2008. This report must also include any additional evidence of the potential harm posed by deca-bde.
• If Ecology and DOH jointly find, by December 15, 2008, that an effective flame retardant that is safer than commercial deca-bde and technically feasible for use in residential upholstered furniture, televisions, or computers is not available or if the fire safety committee finds that an alternative to commercial deca-bde does not meet applicable fire safety standards, Ecology is to by rule grant an exemption to allow for the manufacture, sale, or distribution of products prohibited from manufacture, sale, or distribution under this law.
• Effective January 1, 2008, no person may manufacture, knowingly sell, or distribute for in-state use products containing polybrominated diphenyl ethers (PBDEs).
  
  Exceptions to this prohibition include:
  • products containing Deca-BDE, except for mattresses (prohibition effective January 1, 2008), and except for residential upholstered furniture, and televisions or computers with electronic enclosures containing commercial Deca-BDE (prohibition effective January 1, 2011, if a safer and technically feasible alternative that meets applicable fire safety standards is available);
  • used transportation vehicles and used or new parts manufactured before January 1, 2008, containing PBDEs;
  • equipment containing PBDEs used primarily for military or federally funded space program applications;
  • Federal Aviation Administration fire worthiness requirements and recommendations;
  • new raw material or parts used in transportation vehicles containing Deca-BDE;
  • use of Deca-BDE in transportation equipment;
  • sale or distribution of any used product containing PBDEs;
  • any new product with recycled or used materials containing Deca-BDE;
  • sale or purchase of any previously owned product containing PBDEs made in casual or isolated sales and to sales by nonprofit organizations;
  • new carpet cushion made from recycled foam with less than one-tenth of 1 percent Penta-BDE; and
  • medical devices.
• The prohibition does not restrict the ability manufacturers, importers, or distributors from transporting products containing PBDEs through the state, or storing products for later distribution outside the state.
• The law also establishes an assessment process to identify alternatives to Deca-BDE products. Steps in the assessment process include:
  • Ecology and DOH must first identify a safer and technically feasible alternative to Deca-BDE products;
  • the newly created Fire Safety Committee reports its finding to the State Fire Marshal on whether the identified alternative meets applicable fire safety standards;
  • a determination is made by the State Fire Marshal on whether the alternative meets applicable fire safety standards;
  • public input is sought;
  • findings are published in the Washington State Register;
  • a report is submitted to the Legislature by Ecology; and
  • two years after the report is submitted, the prohibition takes effect.
• The prohibition may not take effect for Deca-BDE in upholstered furniture, televisions, or computers until Ecology and DOH identify that a safer and technically feasible alternative is available, AND the State Fire Marshal determines that the alternative meets applicable fire safety standards.
• The Fire Safety Committee is created for the exclusive purpose of finding whether a potential alternative meets applicable fire safety standards. It consists of a representative from Ecology as an ex officio nonvoting member that chairs the committee and five voting members, appointed by the Governor, representing:
  • the Office of the State Fire Marshal;
  • a statewide association representing the interests of fire chiefs;
  • a statewide association representing the interests of fire commissioners;
  • a recognized statewide council, affiliated with an international association representing the interests of firefighters; and
  • a statewide association representing the interests of volunteer firefighters.
• Ecology and DOH are directed to review risk assessments, scientific studies, and other relevant findings on alternatives to the use of commercial Deca-BDE in products not directly addressed in the act and on the potential effect of PBDEs in the waste stream. If a safer and technically feasible alternative becomes available, Ecology must convene the Fire Safety Committee to make a finding on whether the alternative meets applicable fire safety standards. If it is found that the alternative meets applicable fire safety standards, the State Fire Marshal must then make a determination on whether the alternative meets applicable fire safety standards. Findings must be published in the Washington State Register and reported to the Legislature by December 31 of the year they are made.
• Ecology is to assist state agencies to give priority and preference to purchases that do not contain PBDEs.
• Ecology is to assist manufacturers and retailers to achieve compliance. Retailers who unknowingly sell prohibited products are not liable for violations. Manufacturers must notify sellers about the provisions in the act no less than 90 days prior to the effective date of the restrictions. A manufacturer that knowingly produces, sells, or distributes a product prohibited from manufacture, sale, or distribution must recall the product and reimburse the retailer or other purchaser for the product and any shipping and handling.
• Enforcement must rely on notification and information exchange between Ecology and manufacturers. A warning letter may be issued to a manufacturer that violates provisions of the act. If after one year compliance is not achieved, penalties may be assessed.
• Manufacturers in violation of provisions in the act are subject to civil penalties of up to $1,000 for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty up to $5,000 for each repeat offense. Penalties collected must be deposited in the State Toxic Control Account.