An Act To Clarify Maine's Phaseout of polybrom'lted Diphenyl Ethers
Maine Legislature, Session 124, LD 1568
Committee Amendment CA_A_H731 (House)
Amends: 38 MRSA §1310-B, 38 MRSA §1609

COMMITTEE AMENDMENT" ()." to H.P. 1105, L.D. 1568, Bill, "An Act To 
Clarify Maine's Phaseout of polybrom'lted Diphenyl Ethers" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'Sec. 1. 38 MRSA §1310-B, sub-§2, as amended by PL 2009, c. 397, § 1, is 
further amended to read: 
2. Hazardous waste information and information on mercury-added products 
and electronic devices and mercury reduction plans; chemicals. Information relating 
to hazardous waste submitted to the department under this subchapter, information 
relating to mercury-added products submitted to the depal1ment under chapter 16-B, 
information relating to electronic devices submitted to the department under section 1610, 
subsection 6-A ef~ information relating to mercury reduction plans submitted to the 
department under section 585-B, subsection 6 or information related to products that 
contain the "deca" mixture of polybrominated diphenyl ethers submitted to the 
department under section 1609 may be designated by the person submitting it as being 
only for the confidential use of the department, its agents and employees, the Department 
of Agriculture, Food and Rural Resources and the Department of Health and Human 
Services and their agents and employees, other agencies of State Government, as 
authorized by the Governor, employees of the United States Environmental Protection 
Agency and the Attorney General and, for waste information, employees of the 
municipality in which the waste is located. The designation must be clearly indicated on 
each page or other portion of information. The commissioner shall establish procedures 
to ensure that information so designated is segregated from public records of the 
department. The depal1ment's public records must include the indication that information 
so designated has been submitted to the department, giving the name of the person 
submitting the information and the general nature of the information. Upon a request for 
information, the scope of which includes information so designated, the commissioner 
shall notify the submittol'. Within 15 days after receipt of the notice, the submittor shall 
demonstrate to the satisfaction of the department that the designated information should 
not be disclosed because the information is a trade secret or production, commercial or 
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financial information, the disclosure of which would impair the competitive position of 
the submittor and would make available information not otherwise publicly available. 
Unless such a demonstration is made, the information must be disclosed and becomes a 
public record. The department may grant or deny disclosure for the whole or any part of 
the designated information requested and within 15 days shall give written notice of the 
decision to the submittor and the person requesting the designated information. A person 
aggrieved by a decision of the department may appeal only to the Superior Court in 
accordance with the provisions of section 346. 
All information provided by the 
department to the municipality under this subsection is confidential and not a public 
record under Title 1, chapter 13. In the event a request for such information is submitted 
to the municipality, the municipality shall submit that request to the commissioner to be 
processed by the department as provided in this subsection. 
Sec. 2. 38 MRSA §1609, sub-§5-A is enacted to read: 
5-A. "Deca" mixture of polybrominated diphenyl ethers in shipping pallets. 
This subsection governs the manufacture and sale of shipping pallets and products made 
from shipping pallets containing the "deca" mixture of polybrominated diphenyl ethers, 
referred to in this subsection as "the "deca" mixture." 
A. A person may not manufacture, sell or offer for sale or distribute for sale or use in 
the State a product that is manufactured from recycled shipping pallets containing the 
"decaf! mixture, except that this prohibition does not apply to the manufacturing, 
selling or distribution of shipping pallets that are manufactured from recycled 
shipping pallets containing the f!deca" mixture. 
B. Beginning January 1, 2012, a person may not manufacture, sell or offer for sale or 
distribute for sale or use in the State a shipping pallet containing the "deca" mixture, 
other than a shipping pallet made from recycled shipping pallets or described in 
subsection 11, paragraph A-I. 
C. By January 1, 2013, and annually thereafter, a manufacturer or owner of shipping 
pallets subject to the restrictions of this subsection shall submit a report to the 
department that certifies its compliance with the restrictions of this subsection. The 
repOli must include data on the bromine content of a representative number of 
shipping pallets and an interpretive analysis of the data sufficient to demonstrate 
compliance with this subsection. 
The board may adopt rules to implement the 
reporting requirements of this subsection. Rules adopted pursuant to this paragraph 
are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. 
Sec. 3. 38 MRSA §1609, sub-§5-B is enacted to read: 
5-B. Exemptions. Notwithstanding subsection 5-A, paragraph B, a person may sell 
or distribute a shipping pallet containing the "decaf! mixture of polybrominated diphenyl 
ethers for which an exemption is obtained pursuant to this subsection. A manufacturer or 
owner of a shipping pallet may apply for an exemption by filing a written petition with 
the commissioner. The petition must include a proposed duration for the exemption. The 
commissioner shall grant an exemption upon finding that: 
A. A safer alternative that meets the criteria of subsection 14 does not exist; 
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COMMITrEE AMENDMENT "A" to H.P. II os, L.D. 1568 
B. A shipping pallet containing a proposed safer alternative fails to meet applicable 
fire safety standards, approvals and tests or relevant performance standards; 
C. Additional time is needed by the petitioner to complete testing or obtain approval 
to ensure that a shipping pallet containing a proposed safer alternative complies with 
applicable fire safety standards, approvals and tests; or 
D. Additional time is needed by the petitioner to modify the manufacturing process 
in order to produce a shipping pallet containing the safer alternative. 
The commissioner may not grant an exemption pursuant to this subsection that extends 
beyond January 1, 20l3. 
Sec. 4. 38 MRSA §1609, sub-§7, as enacted by PL 2007, c. 296, § 1, is amended 
to read: 
7. Manufacturer responsibility. Effective January 1, 2008, a manufacturer of a 
product containing polybrominated diphenyl ethers restricted under subsection I, 4 or 5 
must notify persons that sell the manufacturer's product of the requirements of this 
section. 
Beginning January I, 20l3, a manufacturer of a product containing 
polybrominated diphenyl ethers restricted under subsection 5-A must notify persons that 
sell the manufacturer's product of the requirements of this section. 
Sec. 5. 38 MRSA §1609, sub-§l1, as amended by PL 2009, c. 12 I, § 18, is 
further amended to read: 
of: 
11. Application. This section does not apply to prohibit the sale, distribution or use 
A. Used products; 
A-I. Shipping pallets manufactured before January 1, 2012 that contain the "deca" 
mixture of polybrominated diphenyl ethers or shipping pallets for which an 
exemption has been granted under subsection 5-8; 
B. 
Products Except as provided in subsection 5-A, products if the presence of 
polybrominated diphenyl ether is due solely to the use of recycled material; or 
C. Replacement parts that contain the "octa" or "penta" mixtures of polybrominated 
diphenyl ether if the parts are for use in a product manufactured before January I, 
2006. 
Sec. 6. 38 MRSA §1609, sub-§13, as amended by PL 2007, c. 655, § 18, is 
fUliher amended to read: 
13. Department rule-making authority; flame retardants. If the commissioner 
determines, in consultation with the Department of Health and Human Services, Maine 
Center for Disease Control and Prevention and the Department of Public Safety, Office of 
the State Fire Marshal, that a flame retardant is harmful to the public health and the 
environment or meets the criteria as a prohibited replacement pursuant to subsection 14, 
paragraph Band fffi a safer alternative to the flame retardant that is safer to the public 
health and the environment is nationally a'v'ailable and the State Fire Marshal determines 
that a safer alternative meets aoolicable fire safetv standards as set fOlih in subsection 14 
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COMMITIEE AMENDMENT "A" to H.P. II os, L.D. 1568 
is available, the commissioner may adopt rules to prohibit the manufacture, sale or 
distribution in the State of: 
A. A mattress, a mattress pad or upholstered furniture intended for indoor use in a 
home or other residential occupancy that contains that flame retardant; 6f 
B. 
A television or computer that has a plastic housing containing that flame 
retardant~.;..Q[ 
C. A plastic shipping pallet that contains that flame retardant. 
The commissioner's rulemaking under this subsection must be made in accordance with 
Title 5, chapter 375, subchapter 2-A. 
The depaJiment shall repO\i any rulemaking 
undertaken pursuant to this subsection to the joint standing committee of the Legislature 
having jurisdiction over natural resources matters. The joint standing committee of the 
Legislature having jurisdiction over natural resources matters may submit legislation 
relating to the department's report. For purposes of this subsection, "flame retardant" 
means any chemical that is added to a plastic, foam or textile to inhibit flame formation. 
Rules adopted pursuant to this subsection are routine technical rules. 
Sec. 7. 38 MRSA §1609, sub-§14 is enacted to read: 
14. Safer alternatives; policy. It is the policy of the State that the "deca" mixture of 
polybrominated diphenyl ethers be replaced with safer alternatives as soon as practicable. 
A. For the purposes of this subsection, "safer alternative" means a substitute process, 
product, material, chemical, strategy or any combination of these that: 
(1) When compared to the chemical to be replaced would reduce the potential for 
harm to human health or the environment or has not been shown to pose the same 
or greater potential for harm to human health or the environment as the chemical 
to be replaced; 
(2) Serves a functionally equivalent purpose that enables applicable fire safety 
standards, approvals and tests and relevant performance standards to be met; 
(3) Is commercially available on a national basis; and 
(4) Is not cost-prohibitive. 
B. Effective January 1, 2011, a person subject to the restrictions under th is section 
may not replace the "dec a" mixture of polybrominated diphenyl ethers with a 
chemical alternative that the commissioner, in consultation with the Department of 
Health and Human Services, Maine Center for Disease Control and Prevention, 
determines: 
(1) Has been identified as or meets the criteria for identification as a persistent, 
bioaccumulative and toxic chemical by the United States Environmental 
Protection Agency; 
(2) 
Is a halogenated organic chemical that contains the element bromine, 
chlorine or fluorine; or 
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(3) Creates another chemical as a breakdown product through degradation or 
metabolism that meets the provisions of subparagraph (I). 
A replacement to the "deca" mixture of polybrominated diphenyl ethers may contain 
an amount of the chemicals listed or described in subparagraphs (1), (2) and (3) equal 
to or less than 0.0 I %, except that a replacement may contain an amount of a 
halogenated organic chemical containing the element fluorine equal to or less than 
0.2%. 
Upon request by the commissioner, a person subject to the restrictions under this 
subsection shall provide the commissioner with all existing information about the 
hazard and exposure characteristics of the replacement chemical that is known to, in 
the possession or control of or reasonably ascertainable by the person. 
Sec. 8. 38 MRSA §1609, sub-§15 is enacted to read: 
15. 
Confidentiality. 
Information submitted to the department pursuant to this 
section may be designated as confidential by the submitting party in accordance with the 
provisions set fOlih in section 1310-B and, if the information is so designated, the 
provisions of section 131 O-B apply. 
Sec. 9. Alternatives assessment study. 
The Depaliment of Environmental 
Protection may supervise an alternatives assessment study to determine the availability of 
safer alternatives to the use of the "deca" mixture of polybrominated diphenyl ethers in 
shipping pallets. The study may be voluntarily funded by a manufacturer or owner of 
pallets that is subject to the restrictions in the Maine Revised Statutes, Title 38, section 
1609, subsection 5-A that chooses to 'participate in the study. Any funding received must 
be deposited in a dedicated account managed by the depaIiment. The study must be 
coordinated with any research, development and demonstration work funded by a 
manufacturer or owner of shipping pallets subject to the restrictions in Title 38, section 
1609, subsection 5-A that suppOlis the planned transition away from the "deca" mixture 
of polybrominated diphenyl ethers to safer alternatives as soon as practicable. 
The 
department may contract with a 3rd party for a study undertaken pursuant to this section, 
and the study must be prepared consistent with current methodologies for alternatives 
assessment. Upon the department's request, a manufacturer or owner of shipping pallets 
subject to the restrictions of Title 38, section 1609, subsection 5-A shall submit to the 
commissioner all existing information regarding safer alternatives to the "deca" mixture 
in shipping pallets that is known to, in the possession or control of or reasonably 
asceliainable by the manufacturer or owner. Information submitted to the department 
pursuant to this section may be designated as confidential by the SUbmitting paliy in 
accordance with Title 38, section 1609, subsection 15. 
By January I, 2011, the department shall determine whether there is a reasonable 
basis to conclude that a study undertaken pursuant to this section or other information 
available to the department demonstrates that a safer alternative to the use of the "deca" 
mixture in shipping pallets that meets the criteria in Title 38, section 1609, subsection 14 
exists. In making the determination, the depaIiment shall consider any study supervised 
by the department pursuant to this section and may consider the effect of the safer 
alternative on the recyclability of the shipping pallets. 
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COMMIITEE AMENDMENT" A" ill H.P. 1105, L.D. 1568 
Sec. 10. Standards and approvals. For purposes of the Maine Revised Statutes, 
Title 38, section 1609, subsection 5-B and an alternatives assessment study undertaken 
pursuant to section 9 of this Act, the Commissioner of Environmental Protection shall 
consider the applicable fire safety standards, approvals and tests and relevant 
performance standards that are consistent with specifications of the manufacturer and 
industry practices. If they are approved by the commissioner, the commissioner shall use 
the applicable fire safety standards, approvals and tests and relevant performance 
standards submitted by the manufacturer.' 
SUMMARY 
This amendment replaces the bill. The amendment does the following. 
1. It bans the manufacture, sale and use of products, other than shipping pallets, that 
are manufactured from recycled shipping pallets containing the "deca" mixture of 
polybrominated diphenyl ethers. 
2. Beginning January 1, 2012, it bans the manufacture, sale and use of shipping 
pallets containing the "deca" mixture of polybrominated diphenyl ethers, except for 
shipping pallets manufactured before January 1,2012 that contain the "deca" mixture and 
shipping pallets that are manufactured from recycled shipping pallets containing the 
"deca" mixture. 
3. It provides for an exemption process under which a manufacturer may apply to the 
Commissioner of Environmental Protection for an exemption to the January 1,2012 ban. 
The commissioner shall grant an exemption if celiain criteria are met. An exemption 
may not extend beyond January 1,2013. 
4. It requires a manufacturer or owner of shipping pallets that are subject to the 
restrictions to annually celiity compliance with the restrictions to the Department of 
Environmental Protection. 
5. It requires a manufacturer of shipping pallets containing the "deca" mixture to 
notify persons that sell the product of the restrictions. 
6. It specifies the criteria a chemical alternative must meet in order to be used as a 
replacement for the "deca" mixture. 
7. 
It authorizes information submitted to the depaliment that is related to the 
manufacture, sale or use of the "deca" mixture to be designated as confidential. 
8. 
It authorizes the depaliment to supervise an alternatives assessment study to 
determine the availability of safer alternatives to the use of the "deca" mixture in shipping 
pallets. The study may be voluntarily funded by a manufacturer or owner of shipping 
pallets subject to the restrictions in the law. It requires the depaltment to determine by 
January 1, 20 II whether there is reasonable basis to conclude that information available 
to the department demonstrates that a safer alternative to the use of the "deca" mixture in 
shipping pallets exists. It requires the Commissioner of Environmental Protection to 
consider applicable fire safety standards, approvals and tests and relevant performance 
standards that are consistent with the specifications of the manufacturer and industry 
practices. 
FlSCAL ~OTE REQURED 
(See attached) 
COMMI 
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Approved: 03/1411 0 frac:.. 
LD 1568 
LR 2182(02) 
An Act To Clarify Maine's Phaseout of Polybrominated Diphenyl Ethers 
Fiscal Note for Bill as Amended by Committee Amendment '~ " 
Committee: Natural Resources 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - Other Special Revenue Funds 
Fiscal Detail and Notes 
Any costs associated with implementing a ban on products containing the "deca" mixture of polybrominated diphenyl 
ethers, operating an exemption process by application, processing certifications of compliance, receiving and 
maintaining confidential information, and studying the feasibility of alternatives to "deca" can be absorbed within the 
existing budgeted resources of the Department of Environmental Protection. 
LR2182(02) - Fiscal Note - Page I of 1