2016 -- S 2095

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LC003651

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO HEALTH AND SAFETY - MERCURY REDUCTION AND EDUCATION

ACT

     Introduced By: Senators Ruggerio, Goodwin, Conley, P Fogarty, and Pearson

     Date Introduced: January 21, 2016

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-24.9-2, 23-24.9-3, 23-24.9-9, 23-24.9-10, 23-24.9-10.2, 23-

24.9-15 and 23-24.9-20 of the General Laws in Chapter 23-24.9 entitled "Mercury Reduction and

Education Act" are hereby amended to read as follows:

     23-24.9-2. Findings. -- The general assembly has found and hereby declares that:

      (1) Mercury is a persistent and toxic pollutant that bioaccumulates in the environment;

      (2) Mercury deposition has proven to be a significant problem in the northeastern United

States;

      (3) Consumption of mercury-contaminated freshwater fish poses a significant public

health threat to the residents of Rhode Island;

      (4) In order to address these real threats to public health and the environment, the state

has been and should continue to actively cooperate with other states in the region to help

minimize harm resulting from mercury in food, soil, air and water;

      (5) According to a 2004 study by the U.S. environmental protection agency titled

"International mercury market study and the role and impact of U.S. environmental policy," more

than ten percent (10%) of the estimated mercury reservoir in the United States is in thermostats;

      (6) In 1998, thermostat manufacturers, General Electric, Honeywell, and White Rodgers

established the thermostat recycling corporation "(TRC)", a non-profit corporation to facilitate

recycling of mercury thermostats nationwide. The TRC originally operated solely through

wholesalers but has since expanded to enable collection by contractors, household hazardous

waste facilities, and retailers. The TRC is a voluntary program in all states, but several states

require wholesalers to act as collection points for waste mercury thermostats. Participation in the

TRC is likely the simplest, least-cost means of complying.;

      (7) The manufacturers of mercury-containing thermostats, with the cooperation of the

department, should be encouraged to submit a single unified plan for the collection of mercury-

containing thermostats, the cost of which should be appropriately apportioned between

participating manufacturer; and

      (8) The manufacturers of mercury-containing lamps, with the cooperation of the

corporation in collaboration with the department, should be encouraged to submit a single unified

plan for the collection of mercury-containing lamps, the cost of which should be appropriately

apportioned between participating manufacturers; and

     (8)(9) The intent of this chapter is to achieve significant reductions in environmental

mercury by encouraging the establishment of effective waste reduction, recycling, management

and education programs.

     23-24.9-3. Definitions. -- For the purpose of this chapter:

      (1) "Component" means a mercury-added product which is incorporated into another

product to form a fabricated mercury-added product, including, but not limited to, electrical

switches and lamps.

      (2) "Corporation" means the Rhode Island resource recovery corporation created and

established pursuant to chapter 19 of title 23.

     (3) "Covered entity" means any person who presents to a collection facility that is

included in an approved plan:

     (i) Any number of compact fluorescent mercury-containing lamps; or

     (ii) Ten (10) or fewer mercury-containing lamps that are not compact fluorescent lamps

and are not from a large use application.

      (2)(4) "Department" means the department of environmental management.

      (3)(5) "Director" means the director of the department of environmental management or

any subordinate or subordinates to whom the director has delegated the powers and duties vested

in him or her by this chapter.

      (4)(6) "Fabricated mercury-added product" means a product that consists of a

combination of individual components that combine to make a single unit, including, but not

limited to, mercury-added measuring devices, lamps and switches to which mercury or a mercury

compound is intentionally added in order to provide a specific characteristic, appearance, or

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quality, or to perform a specific function or for any other reason.

      (5)(7) "Formulated mercury-added product" means a product that includes, but is not

limited to, laboratory chemicals, cleaning products, cosmetics, pharmaceuticals and coating

materials that are sold as a consistent mixture of chemicals to which mercury or a mercury

compound is intentionally added in order to provide a specific characteristic, appearance, or

quality, or to perform a specific function or for any other reason.

      (6)(8) "Healthcare facility" means any hospital, nursing home, extended care facility,

long-term care facility, clinical or medical laboratory, state or private health or mental institution,

clinic, physician's office or health maintenance organization.

      (7)(9) "Manufacturer" means any person, firm, association, partnership, corporation,

governmental entity, organization, combination or joint venture that produces a mercury-added

product or an importer or domestic distributor of a mercury-added product produced in a foreign

country. In the case of a multi-component mercury-added product, the manufacturer is the last

manufacturer to produce or assemble the product. If the multi-component product is produced in

a foreign country, the manufacturer is the importer or domestic distributor. In the case of

mercury-containing thermostats, the manufacturer is the original equipment manufacturer who

sells or sold a mercury-containing thermostat under a brand or label it owns, or is or was licensed

to use a mercury-containing thermostat produced by other suppliers.

     (10) In the case of mercury-containing lamps, the manufacturer is a person who:

     (i) Manufactures or manufactured a mercury-containing lamp under its own brand or

label for sale in the state;

     (ii) Sells in the state under its own brand or label a mercury-containing lamp produced by

another supplier;

     (iii) Owns a brand that it licenses, or licensed to another person for use on a mercury-

containing lamp sold in the state;

     (iv) Imports into the United States for sale in the state a mercury-containing lamp

manufactured by a person without a presence in the United States;

     (v) Manufactures a mercury-containing lamp for sale in the state without affixing a brand

name; or

     (vi) Assumes the responsibilities, obligation, and liabilities of a manufacturer as defined

under paragraphs (i) through (v) of this subsection.

     (11) "Mercury-containing lamp" means a general purpose lamp to which mercury is

intentionally added during the manufacturing process. "Mercury-containing lamp" does not mean

a lamp used for medical, disinfection, treatment or industrial purposes.

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     (8)(12) "Mercury-added button cell battery" means a button cell battery to which the

manufacturer intentionally introduces mercury for the operation of the battery.

      (9)(13) "Mercury-added novelty" means a mercury-added product intended mainly for

personal or household enjoyment or adornment. Mercury-added novelties include, but are not

limited to, items intended for use as figurines, adornments, toys, games, cards, ornaments, yard

statues and figures, candles, jewelry, holiday decorations, items of apparel (including footwear),

or similar products.

      (10)(14) "Mercury-added product" means a product, commodity, chemical or a product

with a component that contains mercury or a mercury compound intentionally added to the

product, commodity, chemical or component in order to provide a specific characteristic,

appearance, or quality, or to perform a specific function or for any other reason. These products

include formulated mercury-added products and fabricated mercury-added products.

      (11)(15) "Mercury fever thermometer" means a mercury-added product that is used for

measuring body temperature.

      (12)(16) "Mercury-containing thermostat" means a product or device that uses a mercury

switch to sense and control room temperature through communication with heating, ventilating,

or air-conditions equipment. "Mercury-containing thermostat" includes thermostats used to sense

and control room temperature in residential, commercial, industrial, and other buildings, but does

not include a thermostat used to sense and control temperature as part of a manufacturing process.

      (13)(17) "Person" means an individual, trust, firm, joint stock company, corporation

(including a government corporation), partnership, association, the federal government or any

agency or subdivision thereof, a state, municipality, commission, political subdivision of a state,

or any interstate body.

      (14)(18) "Thermostat retailer" means a person who sells thermostats of any kind directly

to homeowners or other nonprofessionals through any selling or distribution mechanism,

including, but not limited to, sales using the internet or catalogues. A retailer may also be a

wholesaler if it meets the definition of wholesaler.

      (15)(19) "Thermostat wholesaler" means a person that is engaged in the distribution and

wholesale sale of thermostats and other heating, ventilation, and air-conditioning components to

contractors who install heating, ventilation, and air-conditioning components.

      (16)(20) "Contractor" means a person engaged in the business of installation, service, or

removal of heating, ventilation, and air-conditioning components.

      (17)(21) "Qualified contractor" means a person engaged in the business of installation,

service, or removal of heating, ventilation, and air-conditioning components who employs seven

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(7) or more service technicians or installers or who is located in an area outside of an urban area,

as defined by the United States bureau of the census.

      (18)(22) "Local government collections" means collections completed by household

hazardous waste facilities, solid waste management agencies, environmental management

agencies, or the department of health.

     23-24.9-9. Disposal ban. -- (a) Except as otherwise provided for in this chapter, after

July 1, 2006, no person shall dispose of mercury-added products in a manner other than by

recycling or disposal as hazardous waste. Mercury from mercury-added products may not be

discharged to water, wastewater treatment, and wastewater disposal systems except when it is

done in compliance with local, state, and federal applicable requirements.

      (b) If a formulated mercury-added product is a cosmetic or pharmaceutical product

subject to the regulatory requirements relating to mercury of the federal Food and Drug

Administration, then the product is exempt from the requirements of this section.

      (c) This section shall not apply to: (1) anyone who disposes of a mercury-added button

cell battery; or (2) mercury-added components as contained in motor vehicles except as provided

in subdivision 23-24.9-10(b)(2) and in accordance with such regulations as may be adopted by

the department in order to achieve the purposes of subdivision 23-24.9-10(b)(2); and (3)

households disposing of lamps and products containing lamps.

      (d) The restrictions on the disposal of mercury-added components in motor vehicles shall

be as set forth in subsection (a) of this section effective January 1, 2006, and shall be

implemented as provided for in subdivision (c)(2) of this section and subdivision 23-24.9-

10(b)(2).

      (e) The restrictions on amalgam waste recycling and disposal shall be implemented as

provided for in § 23-24.9-9.3.

      (f) Any contractor who replaces a mercury-containing thermostat from a building shall

recycle the thermostat using its own collection container provided by thermostat manufacturers,

or deliver the mercury-containing thermostat to an appropriate wholesaler, retailer or local

government collection for recycling.

      (g) Any contractor who demolishes a building shall remove any mercury-containing

thermostats from the building prior to demolition and shall deliver the mercury-containing

thermostats to an appropriate wholesaler, retailer or collection location for recycling.

      (h) Any person who replaces a mercury-containing thermostat from any location in the

state that is participating in an energy efficiency and/or weatherization program supported or

administered in whole or in part by any department, agency, instrumentality, or political

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subdivision of the state or conducted as a result of any statutory requirement, including but not

limited to, demand-side management pursuant to, household hazardous waste drop-off event §

39-2-1.2, or least-cost procurement pursuant to § 39-1-27.7, shall deliver the mercury-containing

thermostats to an appropriate wholesaler, retailer or collection location for recycling.

     (i) After January 1, 2019, the ban will apply to disposal of mercury-containing lamps.

     23-24.9-10. Collection of mercury-added products. -- (a) After January 1, 2006, no

mercury-added product shall be offered for final sale or use or distribution for promotional

purposes in Rhode Island unless the manufacturer, either on its own or in concert with other

persons, has implemented a system, after review and approval of the corporation in collaboration

with the director, for the convenient and accessible collection of such products when the

consumer is finished with them. Where a mercury-added product is a component of another

product, the collection system must provide for removal and collection of the mercury-added

component or collection of both the mercury-added component and the product containing it.

Mercury-added components in motor vehicles shall be collected and recycled as provided for in

subdivision (b)(2) of this section. Mercury-containing thermostats shall be collected and recycled

as provided for in § 23-24.9-10.2. Mercury-containing lamps from covered entities shall be

collected and recycled as provided for in subsection (b)(4) of this section.

      (b) (1) This section shall not apply to the collection of mercury-added button cell

batteries or mercury-added lamps or products where the only mercury contained in the product

comes from a mercury-added button cell battery or a mercury-added lamp; and

      (2) Mercury-added components in motor vehicles at end-of-life shall be collected and

recycled as provided in this subsection. Significant, willful failure to comply with rules and/or

regulations to implement the provisions of this section shall constitute, as may be determined by

the department, a violation of the ban established in § 23-24.9-9. No scrap recycling facility or

other person that receives a flattened, crushed or baled end-of-life vehicle shall be deemed to be

in violation of subdivision 23-24.9-10(b)(2) and rules and regulations pursuant thereto or § 23-

24.9-9 if a mercury switch is found in the vehicle after its acquisition.

      For the purposes of subdivision 23-24.9-10(b)(2) the following terms shall have the

following meanings: (i) "Capture rate" means the annual removal, collection, and recovery of

mercury switches, as a percentage of the total number of mercury switches available for removal

from end-of-life vehicles as determined by the department of environmental management.

Capture rate shall not include mercury switches that are inaccessible due to significant damage to

the motor vehicle in the area where the mercury switch is located; (ii) "Mercury added

component" or "Mercury switch" means a mercury-added convenience light switch assembly or

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capsule from an end-of-life motor vehicle; (iii) "Scrap recycling facility" means a fixed location

where machinery and equipment are utilized for processing and manufacturing scrap metal into

prepared grades and whose principal product is scrap iron, scrap steal, or nonferrous metallic

scrap for sale for remelting purposes; and (iv) "Vehicle recycler" means and individual or entity

licensed under the provisions of § 42-14.2-3 that engages in the business of acquiring,

dismantling, parts recycling from, or destroying six (6) or more end-of-life vehicles in a calendar

year.

      (A) Manufacturers of motor vehicles sold in Rhode Island that contain mercury switches

shall, individually or collectively, establish and implement a collection program for mercury

switches to achieve a capture rate of not less than fifty percent (50%) for calendar year 2006, and

not less than seventy percent (70%) for calendar year 2007 and each calendar year thereafter

through calendar year 2017.

      (B) The department shall develop, issue, administer and enforce regulation compelling

the manufacturers of motor vehicles sold in Rhode Island that contain mercury switches to

undertake a collection program as set forth in this subparagraph, 23-24.9-10(b)(2)(B). The

department shall determine that the capture rate in each year of the program and shall access

whether any failure to achieve the capture rate was the result of a force-majeure. The department

shall report publicly on or before March 31, each year its findings with regard to the capture rate

during the prior year. The manufacturer or manufacturers shall pay the total cost of the removal,

replacement, collection and recovery system for mercury switches, under this subparagraph, 23-

24.9-10(b)(2)(B), to the vehicle recycler or scrap recycling facility that removed the switch. The

total cost shall include, but not be limited to a minimum of five dollars ($5.00) for each mercury

switch removed by a vehicle recycler or by a scrap recycling facility, as partial compensation for

the labor and other costs incurred in the removal of the mercury switch.

      (3) The provisions of subdivision 23-24.9-10(b)(2) shall satisfy collection programs and

disposal requirements for mercury switches for all motor vehicles sold in the state.

     (4) Effective January 1, 2018, manufacturers of mercury-containing lamps sold in Rhode

Island shall, individually or collectively, establish and implement a statewide collection program,

approved by the corporation in collaboration with the department, for the recycling of mercury-

containing lamps from covered entities.

     (i) The recycling program required under this subsection must include:

     (A) Convenient collection locations located throughout the state where mercury-

containing lamps from covered entities can be dropped off without cost, including, but not limited

to, municipal collection sites and participating retail establishments;

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     (B) Handling and recycling equipment and practices in compliance with the universal

waste rules; and

     (C) Effective education and outreach, including, but not limited to, point-of-purchase

signs and other materials provided to retail establishments without costs.

     (ii) A manufacturer required to implement a statewide collection program under this

subsection shall submit its proposed recycling program for review and approval by the

corporation in collaboration with the department. The corporation shall solicit public comment on

the proposed program before approving or denying the program.

     (iii) Beginning April 1, 2018, a manufacturer not in compliance with this section is

prohibited from offering any mercury-containing lamp for final sale in the state or distributing

any mercury-containing lamp in the state. A manufacturer not in compliance with this section

shall provide support to retailers to ensure the manufacturer's mercury-containing lamps are not

offered for sale, sold at final sale or distributed in the state.

     (iv) Beginning April 1, 2018, a retailer may not offer for final sale a mercury-containing

lamp produced by a manufacturer not in compliance with this section.

     (v) Beginning in 2019, and biennially thereafter, the corporation shall report to the

general assembly on any modifications to the manufacturer recycling programs it intends to make

to improve mercury-containing lamp recycling rates and any recommendations for statutory

changes needed to facilitate mercury-containing lamp collection and recycling.

     (vi) Manufacturers of mercury-containing lamps sold in Rhode Island shall individually

or collectively enter into an agreement with the corporation to reimburse for reasonable costs

directly related to administering the program but not to exceed the cost of less than one full-time

equivalent employee.

     23-24.9-10.2. Mercury-containing thermostats. -- (a) Manufacturer responsibility. -

Each thermostat manufacturer that has offered for final sale, sold at final sale, or has distributed

mercury-containing thermostats in Rhode Island shall, individually or collectively:

      (1) No later than November 1, 2010, submit a detailed description of a collection

program for mercury thermostats that meets the requirements of this section to the department.

The department shall have thirty (30) days from the date of submittal to review and provide

comment on the program. The final program description shall be submitted to the department no

later than December 31, 2010.

      (2) On or after January 1, 2011, make collection containers available to all qualified

contractors, thermostat wholesalers, thermostat retailers, and local government collections in this

state that request a container. Each thermostat manufacturer shall with each container include

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information regarding the proper management of mercury containing thermostats as universal

waste in accordance with the collection program and the department's rules.

      (3) Establish a system to collect, transport, and properly manage out-of-service mercury

thermostats from all collection sites established under this section.

      (4) Not include any fees or other charges to persons participating in the program, except

that each thermostat wholesaler, qualified contractor, local government collection, or thermostat

retailer that is provided with one or more collection containers may be charged a one-time

program administration fee not to exceed seventy-five dollars ($75.00) per collection container.

      (5) From January 1, 2011, through December 31, 2014 conduct education and outreach

efforts including, but not limited to: (i) Promoting the availability of collection containers to

qualified contractors, wholesalers, thermostat retailers, and units of local government in this state:

(ii) Educating contractors, homeowners and other interested persons on the importance of

properly managing out-of-service mercury thermostats and opportunities for the collection of

those thermostats and the availability of manufacturer supported program(s): (iii) Providing

signage to participating collection locations that can be prominently displayed to promote the

collection and recycling of out-of-service mercury thermostats to contractors and consumers; and

(iv) Written materials or templates of materials for reproduction by participating wholesalers and

thermostat retailers to be provided to customers at the time of purchase or delivery of a

thermostat. These materials shall include, but not limited to, information on the importance of

properly managing out-of-service mercury thermostats and opportunities for the collection of

those thermostats.

      (6) For calendar year 2011, collect at least two thousand (2000) mercury thermostats

taken out-of-service in the state during the calendar year. For calendar year 2012, the goal shall

be to collect at least two thousand two hundred fifty (2,250) mercury thermostats. For calendar

year 2013 and 2014, the goal shall be to collect at least two thousand five hundred (2,500)

mercury thermostats taken out-of-service in the state during each calendar year.

      (7) Beginning in 2012, submit an annual report to the department by March 1, of each

year that includes, at a minimum, all of the following:

      (i) The number of mercury-containing thermostats collected and recycled by that

manufacturer pursuant to this section during the previous calendar year;

      (ii) The estimated total amount of mercury contained in the thermostat components

collected by that manufacturer pursuant to this section in the previous calendar year;

      (iii) An elevation of the effectiveness of the manufacturer's collection program;

      (iv) An accounting of the administrative costs incurred in the course of administering the

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collection and recycling program; and

      (v) A list of locations that participate as collection sites.

      (b) Department responsibilities.

      (1) Collection points. - The department shall maintain and post on their website a list of

units of local government, thermostat retailers and any other locations that are collection points

for mercury thermostats.

      (2) Education outreach. - In conjunction with the educational and outreach programs

implemented by manufacturers, the department shall conduct an education and outreach program

directed toward wholesalers, retailers, contractors, and homeowners to promote the collection of

out-of-service mercury-containing thermostats.

      (3) Rate of collection. - For calendar year 2015 through 2020 2018 and every year

thereafter that the program is in place, the collection goals shall be established by the department

by regulation. The department shall establish collection goals no later than November 1, 2014

2017. In developing collection goals, the department shall take into account, at a minimum: (i)

The effectiveness of collection programs for out-of-service mercury thermostats in the state and

other states; (ii) Collection requirements in other states; (iii) Any reports or studies on the number

of out-of-service mercury thermostats that are available for collection in this state, other states,

and nationally; and (iv) Department estimates of mercury-added thermostats that become waste

annually based on Rhode Island data that is verified by a statistically valid sampling of Rhode

Island residential properties and businesses; and (v) Other factors. Prior to establishing the

collection goals, the department shall consult with stakeholder groups that include, at minimum,

representatives of thermostat manufacturers, environmental groups, thermostat wholesalers,

contractors, and thermostat retailers.

      (4) Modifications to collection programs. - Modifications required by the department

may include, but not be limited to, improvements to outreach and education conducted under the

collection program, expansion of the number of collections sites established under the program,

and modification of the roles of participants. Modifications that may include a five dollar ($5)

incentive in the form of either cash or a coupon offered by the manufacturer to contractors and

consumers for each out-of-service mercury thermostat returned to a collection site may not be

considered prior to January 1, 2014. In the event that the department determines that a program

shall be modified, the department shall consult with thermostat manufacturers, thermostat

wholesalers, thermostat retailers, service contractors, environmental groups and municipalities to

develop the revisions to the program. If the program is modified to include a financial incentive,

the department may exempt local government collections from the financial incentive provision.

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Any modifications made to the collection program shall be subject to the provisions of chapter

42-35, ("The Administrative Procedures Act").

     23-24.9-15. State procurement preferences for low or nonmercury-added products. -

- (a) Notwithstanding other policies and guidelines for the procurement of equipment, supplies,

and other products, the Rhode Island department of administration shall by January 1, 2003,

revise its policies, rules and procedures to implement the purposes of this chapter.

      (b) The Rhode Island department of administration shall give priority and preference to

the purchase of equipment, supplies, and other products that do not contain mercury-added

compounds or components, unless there is no economically feasible nonmercury-added

alternative that performs a similar function. In circumstances where a nonmercury-added product

is not available, preference shall be given to the purchase of products that contain the least

amount of mercury-added to the product necessary for the required performance.

      (c) State dental insurance contracts negotiated after January 1, 2003, shall provide

coverage for non-mercury fillings at no additional expense to the state employee.

     (d) Mercury-containing lamp purchasing. When making purchasing decisions on

mercury-containing lamps, the Rhode Island department of administration shall request

information on mercury content, energy use, lumen output and lamp life from potential suppliers

and shall issue specifications and make purchasing decisions that favor models at comparable

cost with high energy efficiency, lower mercury content and longer lamp life. Information

obtained on mercury content, energy use and lamp life must be made available by the Rhode

Island department of administration to other purchasers who purchase a large number of mercury-

containing lamps. This information must also be posted on the state's publicly accessible website.

     (e) Extra consideration shall be given to those vendors who provide substitute

information on non-mercury lamps like light-emitting diode (LED) that have the same price,

specifications, lumen output and lamp life of what is being sought in the bid abstract.

     23-24.9-20. Regulations. -- The department shall promulgate rules and regulations as

may be necessary to implement and carry out the provisions of this chapter.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY - MERCURY REDUCTION AND EDUCATION

ACT

***

     This act would require manufacturers of mercury-containing lamps to establish and

implement a statewide collection for the recycling of mercury-containing lamps.

     This act would take effect upon passage.

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