73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1196
Senate Bill 962
Sponsored by Senator MONNES ANDERSON, Representative BERGER;
Senators ATKINSON, BATES, BROWN, GEORGE, MORRISETTE, MORSE,
NELSON, Representatives ANDERSON, DALTO, GARRARD, GREENLICK,
TOMEI
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Includes certain brominated flame retardants in definition of '
hazardous substance. '
Prohibits introduction or delivery for introduction into
commerce of products containing certain amount of brominated
flame retardants.
Directs Department of Human Services to issue biennial report
regarding brominated flame retardants.
A BILL FOR AN ACT
Relating to brominated flame retardants; creating new provisions;
and amending ORS 453.005, 453.085 and 453.995.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 453.005 is amended to read:
453.005. As used in ORS 453.005 to 453.135 { - and 453.990
(2) - } unless the context requires otherwise:
(1) 'Combustible' means any substance { - which - }
{ + that + } has a flash point above 80 degrees Fahrenheit to
and including 140 degrees, as determined by the Tagliabue Open
Cup Tester.
(2) 'Commerce' means any and all commerce within the State of
Oregon and subject to the jurisdiction thereof and includes the
operation of any business or service establishment.
(3) 'Corrosive' means any substance { - which - }
{ + that + } in contact with living tissue will cause
destruction of tissue by chemical action, but does not refer to
action on inanimate surfaces.
(4) 'Electrical hazard' means an article { - which - }
{ + that + } because of its design or manufacture may cause
personal injury or illness by electric shock when in normal use
or when subjected to reasonably foreseeable damage or abuse.
(5) 'Extremely flammable' means any substance { - which - }
{ + that + } has a flash point at or below 20 degrees Fahrenheit
as determined by the Tagliabue Open Cup Tester.
(6) 'Flammable' means any substance { - which - }
{ + that + } has a flash point of above 20 degrees to and
including 80 degrees Fahrenheit, as determined by the Tagliabue
Open Cup Tester.
(7) 'Hazardous substance' means:
(a) Any substance { - which - } { + that + } is toxic,
corrosive, an irritant, a strong sensitizer, flammable,
combustible, or generates pressure through decomposition, heat or
other means, if such substance or mixture of substances may cause
substantial personal injury or substantial illness during or as a
proximate result of any customary or reasonably foreseeable
handling or use, including reasonably foreseeable ingestion by
children { + , + } or any substance { - which - }
{ + that + } the Director of Human Services finds, pursuant to
the provisions of ORS 453.005 to 453.135 { - and 453.990
(2) - } , comes within the definition of this paragraph.
(b) Any radioactive substance, if, with respect to such
substance as used in a particular class of article or as
packaged, the director determines that the substance is
sufficiently hazardous to require labeling in accordance with ORS
453.005 to 453.135 { - and 453.990 (2) - } in order to protect
the public health. However, { - the term - } 'hazardous
substance' does not include any source material, special nuclear
material, or by-product material as defined in the Atomic Energy
Act of 1954, as amended, and regulations issued pursuant thereto
by the Atomic Energy Commission.
(c) Any toy or other article intended for use by children
{ - which - } { + that + } the director determines in
accordance with ORS 453.055 presents an electrical, thermal or
mechanical hazard.
(d) Any article { - which - } { + that + } is not pesticide
within the meaning of the Federal Insecticide, Fungicide, and
Rodenticide Act or regulated under ORS 616.335 to 616.385, but
{ - which - } { + that + } is a hazardous substance within the
meaning of paragraph (a) of this subsection by reason of bearing
or containing pesticide.
{ + (e) The following brominated flame retardant chemicals:
(A) Pentabrominated diphenyl ether; and
(B) Octabrominated diphenyl ether. + }
(8) 'Highly toxic' means any substance { - which - }
{ + that + } falls within any of the following categories:
(a) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, at a single dose of 50 milligrams or less per
kilogram of body weight, when orally administered; { - or - }
(b) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, when inhaled continuously for a period of one
hour or less at an atmosphere concentration of 200 parts per
million by volume or less of gas or vapor or two milligrams per
liter by volume or less of mist or dust, provided such
concentration is likely to be encountered by humans when the
substance is used in any reasonably foreseeable manner; or
(c) Produces death within 14 days in one-half or more of a
group of 10 or more rabbits tested in a dosage of 200 milligrams
or less per kilogram of body weight, when administered by
continuous contact with the bare skin for 24 hours or less.
(9) 'Immediate container' does not include package liners.
(10) 'Irritant' means any substance not corrosive within the
meaning of subsection (3) of this section, but { - which - }
{ + that + } on immediate, prolonged, or repeated contact with
normal living tissue will induce a local inflammatory reaction.
(11) 'Label' means a display of written, printed, or graphic
matter upon the immediate container of any substance, or in the
case of an article { - which - } { + that + } is unpackaged
or is not packaged in an immediate container intended or suitable
for delivery to the ultimate consumer, a display of such matter
directly on the article involved or on a tag or other suitable
material affixed thereto, and a requirement made by or under
authority of ORS 453.005 to 453.135 { - and 453.990 (2) - }
that any word, statement, or other information appearing on the
label shall not be considered to be complied with unless such
word, statement, or other information also appears on the outside
container or wrapper, if any, unless it is easily legible through
the outside container or wrapper and on all accompanying
literature where there are directions for use, written or
otherwise.
(12) 'Mechanical hazard' means an article { - which - }
{ + that + } in normal use or when subjected to reasonably
foreseeable damage or abuse presents an unreasonable risk of
personal injury or illness, by its design or manufacture:
(a) From fracture, fragmentation, or disassembly of the
article;
(b) From propulsion of the article or any part or accessory
thereof;
(c) From points or other protrusions, surfaces, edges,
openings, or closures;
(d) From moving parts;
(e) From lack or insufficiency of controls to reduce or stop
motion;
(f) As a result of self-adhering characteristics of the
article;
(g) Because the article or any part or accessory thereof may be
aspirated or ingested;
(h) Because of instability; or
(i) Because of any other aspect of the article's design or
manufacture.
(13) 'Misbranded hazardous substance' means a hazardous
substance that does not meet the labeling requirements of ORS
453.035.
(14) 'Poison' means:
(a) Arsenic and its preparations;
(b) Corrosive sublimate;
(c) Cyanides and preparations, including hydrocyanic acid;
(d) Hydrochloric acid and any preparation containing free or
chemically unneutralized hydrochloric acid (HCl) in a
concentration of 10 percent or more;
(e) Nitric acid or any preparation containing free or
chemically unneutralized nitric acid (HNO3) in a concentration of
five percent or more;
(f) Strychnine;
(g) Sulfuric acid and any preparation containing free or
chemically unneutralized sulfuric acid (H2SO4) in a concentration
of 10 percent or more;
(h) Solution of ammonia, U.S.P. 28 percent; or
(i) Carbolic acid.
(15) 'Radioactive substance' means a substance { - which - }
{ + that + } emits ionizing radiation.
(16) 'Strong sensitizer' means a substance { - which - }
{ + that + } will cause on normal living tissue, through an
allergic or photodynamic process, a hypersensitivity
{ - which - } { + that + } becomes evident on reapplication of
the same substances and { - which - } { + that + } is
designated as such by the Director of Human Services.
(17) 'Thermal hazard' means an article { - which - } { +
that + }, in normal use or when subjected to reasonably
foreseeable damage or abuse, because of its design or manufacture
presents an unreasonable risk of personal injury or illness
because of heat as from heated parts, substances or surfaces.
(18) 'Toxic substance' means any substance, other than
radioactive substance, { - which - } { + that + } has the
capacity to produce personal injury or illness to humans through
ingestion, inhalation, or absorption through any body surface.
SECTION 2. ORS 453.005, as amended by section 1 of this 2005
Act, is amended to read:
453.005. As used in ORS 453.005 to 453.135 unless the context
requires otherwise:
(1) 'Combustible' means any substance that has a flash point
above 80 degrees Fahrenheit to and including 140 degrees, as
determined by the Tagliabue Open Cup Tester.
(2) 'Commerce' means any and all commerce within the State of
Oregon and subject to the jurisdiction thereof and includes the
operation of any business or service establishment.
(3) 'Corrosive' means any substance that in contact with living
tissue will cause destruction of tissue by chemical action, but
does not refer to action on inanimate surfaces.
(4) 'Electrical hazard' means an article that because of its
design or manufacture may cause personal injury or illness by
electric shock when in normal use or when subjected to reasonably
foreseeable damage or abuse.
(5) 'Extremely flammable' means any substance that has a flash
point at or below 20 degrees Fahrenheit as determined by the
Tagliabue Open Cup Tester.
(6) 'Flammable' means any substance that has a flash point of
above 20 degrees to and including 80 degrees Fahrenheit, as
determined by the Tagliabue Open Cup Tester.
(7) 'Hazardous substance' means:
(a) Any substance that is toxic, corrosive, an irritant, a
strong sensitizer, flammable, combustible, or generates pressure
through decomposition, heat or other means, if such substance or
mixture of substances may cause substantial personal injury or
substantial illness during or as a proximate result of any
customary or reasonably foreseeable handling or use, including
reasonably foreseeable ingestion by children, or any substance
that the Director of Human Services finds, pursuant to the
provisions of ORS 453.005 to 453.135, comes within the definition
of this paragraph.
(b) Any radioactive substance, if, with respect to such
substance as used in a particular class of article or as
packaged, the director determines that the substance is
sufficiently hazardous to require labeling in accordance with ORS
453.005 to 453.135 in order to protect the public health.
However, ' hazardous substance' does not include any source
material, special nuclear material, or by-product material as
defined in the Atomic Energy Act of 1954, as amended, and
regulations issued pursuant thereto by the Atomic Energy
Commission.
(c) Any toy or other article intended for use by children that
the director determines in accordance with ORS 453.055 presents
an electrical, thermal or mechanical hazard.
(d) Any article that is not pesticide within the meaning of the
Federal Insecticide, Fungicide, and Rodenticide Act or regulated
under ORS 616.335 to 616.385, but that is a hazardous substance
within the meaning of paragraph (a) of this subsection by reason
of bearing or containing pesticide.
(e) The following brominated flame retardant chemicals:
(A) Pentabrominated diphenyl ether; { - and - }
(B) Octabrominated diphenyl ether { + ; and
(C) Decabrominated diphenyl ether + }.
(8) 'Highly toxic' means any substance that falls within any of
the following categories:
(a) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, at a single dose of 50 milligrams or less per
kilogram of body weight, when orally administered;
(b) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, when inhaled continuously for a period of one
hour or less at an atmosphere concentration of 200 parts per
million by volume or less of gas or vapor or two milligrams per
liter by volume or less of mist or dust, provided such
concentration is likely to be encountered by humans when the
substance is used in any reasonably foreseeable manner; or
(c) Produces death within 14 days in one-half or more of a
group of 10 or more rabbits tested in a dosage of 200 milligrams
or less per kilogram of body weight, when administered by
continuous contact with the bare skin for 24 hours or less.
(9) 'Immediate container' does not include package liners.
(10) 'Irritant' means any substance not corrosive within the
meaning of subsection (3) of this section, but that on immediate,
prolonged, or repeated contact with normal living tissue will
induce a local inflammatory reaction.
(11) 'Label' means a display of written, printed, or graphic
matter upon the immediate container of any substance, or in the
case of an article that is unpackaged or is not packaged in an
immediate container intended or suitable for delivery to the
ultimate consumer, a display of such matter directly on the
article involved or on a tag or other suitable material affixed
thereto, and a requirement made by or under authority of ORS
453.005 to 453.135 that any word, statement, or other information
appearing on the label shall not be considered to be complied
with unless such word, statement, or other information also
appears on the outside container or wrapper, if any, unless it is
easily legible through the outside container or wrapper and on
all accompanying literature where there are directions for use,
written or otherwise.
(12) 'Mechanical hazard' means an article that in normal use or
when subjected to reasonably foreseeable damage or abuse presents
an unreasonable risk of personal injury or illness, by its design
or manufacture:
(a) From fracture, fragmentation, or disassembly of the
article;
(b) From propulsion of the article or any part or accessory
thereof;
(c) From points or other protrusions, surfaces, edges,
openings, or closures;
(d) From moving parts;
(e) From lack or insufficiency of controls to reduce or stop
motion;
(f) As a result of self-adhering characteristics of the
article;
(g) Because the article or any part or accessory thereof may be
aspirated or ingested;
(h) Because of instability; or
(i) Because of any other aspect of the article's design or
manufacture.
(13) 'Misbranded hazardous substance' means a hazardous
substance that does not meet the labeling requirements of ORS
453.035.
(14) 'Poison' means:
(a) Arsenic and its preparations;
(b) Corrosive sublimate;
(c) Cyanides and preparations, including hydrocyanic acid;
(d) Hydrochloric acid and any preparation containing free or
chemically unneutralized hydrochloric acid (HCl) in a
concentration of 10 percent or more;
(e) Nitric acid or any preparation containing free or
chemically unneutralized nitric acid (HNO3) in a concentration of
five percent or more;
(f) Strychnine;
(g) Sulfuric acid and any preparation containing free or
chemically unneutralized sulfuric acid (H2SO4) in a concentration
of 10 percent or more;
(h) Solution of ammonia, U.S.P. 28 percent; or
(i) Carbolic acid.
(15) 'Radioactive substance' means a substance that emits
ionizing radiation.
(16) 'Strong sensitizer' means a substance that will cause on
normal living tissue, through an allergic or photodynamic
process, a hypersensitivity that becomes evident on reapplication
of the same substances and that is designated as such by the
Director of Human Services.
(17) 'Thermal hazard' means an article that, in normal use or
when subjected to reasonably foreseeable damage or abuse, because
of its design or manufacture presents an unreasonable risk of
personal injury or illness because of heat as from heated parts,
substances or surfaces.
(18) 'Toxic substance' means any substance, other than
radioactive substance, that has the capacity to produce personal
injury or illness to humans through ingestion, inhalation, or
absorption through any body surface.
SECTION 3. ORS 453.085 is amended to read:
453.085. { - It shall be unlawful for any person to - }
{ + A person may not + } perform any of the following acts:
(1) The introduction or delivery for introduction into commerce
of any misbranded hazardous substance or banned hazardous
substance.
(2) The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the label of a hazardous
substance.
(3) The { - doing - } { + performance + } of any act with
respect to a hazardous substance while the substance is in
commerce, or while the substance is held for sale or resale after
shipment in commerce, { - which - } { + that + } results in
the hazardous substance being a misbranded hazardous substance or
a banned hazardous substance.
(4) The receipt of or delivery into commerce of any misbranded
hazardous substance or banned hazardous substance for pay or
otherwise.
(5) The giving of a guarantee or undertaking { - which - }
{ + that + } is false, except as a person who relied upon a
guarantee or undertaking to the same effect signed by, and
containing the name and address of, a person residing in the
United States from whom the person received in good faith the
hazardous substance.
(6) The failure to permit entry or inspection as authorized by
ORS 453.005 to 453.135 { - and 453.990 (2) - } or to permit
access to and copying of any record as authorized by ORS 453.005
to 453.135
{ - and 453.990 (2) - } .
(7) The introduction or delivery for introduction into
commerce, or the receipt in commerce and subsequent delivery or
proffered delivery for pay or otherwise, of a hazardous substance
in a reused food, drug or cosmetic container or in a container
{ - which - } { + that + }, though not a reused container, is
identifiable as a food, drug or cosmetic container by its
labeling or by other identification.
(8) The use by any person to the advantage of the person, or
the revealing other than to the Director of Human Services or the
authorized representative of the director or to a court of any
information acquired under authority of ORS 453.005 to 453.135
{ - and 453.990 (2) - } concerning any method or process
{ - which - } { + that + } is a trade secret entitled to
protection.
(9) The sale or delivery of any poison to a minor under 18
years of age without the written order of a person 21 years of
age or over, which written order shall be retained in the records
of the seller and the poison register of the seller shall show by
the name of the purchaser the fact that the sale or delivery was
to a minor on order of an adult and show the adult's name and
address.
(10) The sale or delivery of completely denatured alcohol,
methyl alcohol (methanol), canned heat or other solidified forms
of denatured alcohol, or any preparation containing those
substances, to be used for beverage purposes.
(11) The sale or delivery of any poison without making or
causing to be made an entry in a poison register of the seller in
the manner required by law.
(12) The sale or delivery to any person of any poison without
having learned by due inquiry that such person is aware of the
poisonous character thereof and that it is desired for a lawful
purpose.
(13) The giving of a fictitious name or making any false
representations to the seller or dealer when buying any of the
poisons.
(14) The sale or delivery to any person by anyone other than a
pharmacist of a poison.
(15) The removal or disposal of any detained or embargoed
article without permission of the Director of Human Services or a
designated representative.
{ + (16) The introduction or delivery for introduction into
commerce of any product containing more than one-tenth of one
percent by mass of pentabrominated diphenyl ether or
octabrominated diphenyl ether. This subsection does not apply to
used products. + }
SECTION 4. ORS 453.085, as amended by section 3 of this 2005
Act, is amended to read:
453.085. A person may not perform any of the following acts:
(1) The introduction or delivery for introduction into commerce
of any misbranded hazardous substance or banned hazardous
substance.
(2) The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the label of a hazardous
substance.
(3) The performance of any act with respect to a hazardous
substance while the substance is in commerce, or while the
substance is held for sale or resale after shipment in commerce,
that results in the hazardous substance being a misbranded
hazardous substance or a banned hazardous substance.
(4) The receipt of or delivery into commerce of any misbranded
hazardous substance or banned hazardous substance for pay or
otherwise.
(5) The giving of a guarantee or undertaking that is false,
except as a person who relied upon a guarantee or undertaking to
the same effect signed by, and containing the name and address
of, a person residing in the United States from whom the person
received in good faith the hazardous substance.
(6) The failure to permit entry or inspection as authorized by
ORS 453.005 to 453.135 or to permit access to and copying of any
record as authorized by ORS 453.005 to 453.135.
(7) The introduction or delivery for introduction into
commerce, or the receipt in commerce and subsequent delivery or
proffered delivery for pay or otherwise, of a hazardous substance
in a reused food, drug or cosmetic container or in a container
that, though not a reused container, is identifiable as a food,
drug or cosmetic container by its labeling or by other
identification.
(8) The use by any person to the advantage of the person, or
the revealing other than to the Director of Human Services or the
authorized representative of the director or to a court of any
information acquired under authority of ORS 453.005 to 453.135
concerning any method or process that is a trade secret entitled
to protection.
(9) The sale or delivery of any poison to a minor under 18
years of age without the written order of a person 21 years of
age or over, which written order shall be retained in the records
of the seller and the poison register of the seller shall show by
the name of the purchaser the fact that the sale or delivery was
to a minor on order of an adult and show the adult's name and
address.
(10) The sale or delivery of completely denatured alcohol,
methyl alcohol (methanol), canned heat or other solidified forms
of denatured alcohol, or any preparation containing those
substances, to be used for beverage purposes.
(11) The sale or delivery of any poison without making or
causing to be made an entry in a poison register of the seller in
the manner required by law.
(12) The sale or delivery to any person of any poison without
having learned by due inquiry that such person is aware of the
poisonous character thereof and that it is desired for a lawful
purpose.
(13) The giving of a fictitious name or making any false
representations to the seller or dealer when buying any of the
poisons.
(14) The sale or delivery to any person by anyone other than a
pharmacist of a poison.
(15) The removal or disposal of any detained or embargoed
article without permission of the Director of Human Services or a
designated representative.
(16) The introduction or delivery for introduction into
commerce of any product containing more than one-tenth of one
percent by mass of pentabrominated diphenyl ether { + , + }
{ - or - } octabrominated diphenyl ether { + or decabrominated
diphenyl ether + }. This subsection does not apply to used
products.
SECTION 5. { + The amendments to ORS 453.005 by section 2 of
this 2005 Act become operative on January 1, 2008. + }
SECTION 6. { + The amendments to ORS 453.085 by section 4 of
this 2005 Act become operative on January 1, 2008. + }
SECTION 7. { + As of January 1, 2006, when making purchasing
decisions, a state agency shall give preference to manufacturers
that minimize the use of decabrominated diphenyl ether. + }
SECTION 8. { + Section 9 of this 2005 Act is added to and made
a part of ORS 453.005 to 453.135. + }
SECTION 9. { + (1) As used in this section, 'brominated flame
retardants' includes, but is not limited to:
(a) Polybrominated biphenyl;
(b) Tetrabromobisphenol A;
(c) Hexabromocyclododecane; and
(d) Polybrominated diphenyl ethers, including pentabrominated
diphenyl ether, octabrominated diphenyl ether and decabrominated
diphenyl ether.
(2) The Department of Human Services shall submit a report in
January of each even-numbered year to the appropriate interim
committee with jurisdiction over natural resources matters. The
report shall include:
(a) A summary review of relevant new studies on brominated
flame retardants and recent findings and rulings by the United
States Environmental Protection Agency and the European Union;
(b) Recommendations regarding restrictions on the disposal of
products containing brominated flame retardants; and
(c) Any other recommendations to protect public health and the
environment from brominated flame retardants. + }
SECTION 10. ORS 453.995 is amended to read:
453.995. (1) In addition to any other liability or penalty
provided by law, the Department of Human Services may impose a
civil penalty on a person for violation of { + :
(a) + } ORS 453.885 { + ; or
(b) ORS 453.005 to 453.135 or rules adopted under ORS 453.005
to 453.135 by the department + }.
(2) A civil penalty imposed under this section may not exceed
$2,000.
(3) ORS 183.745 applies to civil penalties imposed under this
section.
SECTION 11. { + Section 7 of this 2005 Act is repealed on
January 2, 2008. + }
----------