CHAPTER 318
2001-H 6161A am
Enacted 07/13/2001


A  N     A   C   T

RELATING TO HEALTH AND SAFETY -- MERCURY REDUCTION AND EDUCATION ACT

Introduced By:  Representatives Ginaitt, Moura and Palumbo Date Introduced:   March 7, 2001

It is enacted by the General Assembly as follows:

SECTION 1. Title 23 of the General Laws entitled "Health and Safety" is hereby amended by adding thereto the following chapter:

CHAPTER 24.9
MERCURY REDUCTION AND EDUCATION ACT

23-24.9-1. Short title. -- This chapter shall be known as the "Mercury Reduction and Education Act."

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; and

(5) The intent of this act 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) "Department" means the department of environmental management.

(2) "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.

(3) "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.

(4) "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 quality, or to perform a specific function or for any other reason.

(5) "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) "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.

(7) "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.

(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.

(9) "Mercury fever thermometer" means a mercury-added product that is used for measuring body temperature.

(10) "Mercury-added button cell battery" means a button cell battery to which the manufacturer intentionally introduces mercury for the operation of the battery.

(11) "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.

23-24.9-4. Interstate clearinghouse. -- The department is authorized to participate in the establishment and implementation of a regional, multi-state clearinghouse to assist in carrying out the requirements of this chapter and to help coordinate reviews of the manufacturers' notifications regarding mercury-added products, applications for phase-out exemptions, the collection system plans, the disclosures of mercury content for products defined in section 23-24.9-3, applications for alternative labeling/notification systems, education and outreach activities, and any other related functions. The clearinghouse may also maintain a list of all mercury added products; a file on all exemptions granted by the state; a file of all the manufacturers' reports on the effectiveness of their collection systems; and a file of the certificates of analysis for mercury-added products used by healthcare facilities as defined in section 23-24.9-11.

23-24.9-5. Notification. -- (a) No later than January 1, 2002, no mercury-added product shall be offered for final sale or use or distributed for promotional purposes in Rhode Island without prior notification in writing by the manufacturer of the product, or its industry trade group, to the director in accordance with the requirements of this section. Such notification shall at a minimum include: (i) a brief description of the product to be offered for sale, use, or distribution; (ii) the amount of and purpose for mercury in each unit of the product; (iii) the total amount of mercury contained in all products manufactured by the manufacturer; and (iv) the name and address of the manufacturer, and the name, address and phone number of a contact.

(b) Any mercury-added product for which federal law governs notice in a manner that preempts state authority shall be exempt from the requirements of this section.

(c) With the approval of the director, the manufacturer may supply the information required above for a product category rather than an individual product. The manufacturer shall update and revise the information in the notification whenever there is significant change in the information or when requested by the director. The director may define and adopt specific requirements for the content and submission of the required notification.

(d) A fabricated mercury-added product manufacturer is not required to provide mercury content information on its mercury-added component if the component manufacturer has provided the information to the department and if the fabricated mercury-added product manufacturer notifies the department of the specific components used in the fabricated mercury-added product.

23-24.9-6. Restrictions on the sale of certain mercury-added products. -- (a) No later than January 1, 2003, no mercury-added novelty shall be offered for final sale or use or distributed for promotional purposes in Rhode Island. Manufacturers that produce and sell mercury-added novelties must notify retailers about the provisions of this product ban and how to dispose of the remaining inventory properly. The requirements of this section shall apply to all mercury-added novelties irrespective of whether or not the product is exempt from the phase-out requirements of section 23-24.9-11.

(b) No mercury fever thermometer may be distributed, sold or offered for sale in this state on or after January 1, 2002, except by prescription. As used herein, the term "mercury fever thermometer" includes any device containing mercury wherein the mercury is used to measure the internal body temperature of a person. This restriction shall not apply to digital thermometers utilizing mercury-added button cell batteries. The manufacturers of mercury fever thermometers shall supply clear instructions on the careful handling of the thermometer to avoid breakage and proper cleanup should a breakage occur with all mercury fever thermometers sold through prescription. Mercury fever thermometers manufacturers must also comply with section 23-24.9-5 and section 23-24.9-7 through section 23-24.9-10.

(c) After January 1, 2003, no school in Rhode Island may use or purchase for use in a primary or secondary classroom, bulk elemental or chemical mercury, or mercury compounds. Manufacturers that produce and sell such materials must notify retailers about the provisions of this ban and how to dispose of the remaining inventory properly. Other mercury-added products that are used by schools are not subject to this prohibition.

(d) This ban on sale, use or distribution shall not apply to a novelty incorporating one or more replaceable mercury-added button cell batteries as its only mercury-added component or components.

23-24.9-7. Phase-out and exemptions. -- (a) No mercury-added product shall be offered for final sale or use or distributed for promotional purposes in Rhode Island if the mercury content of the product exceeds:

(i) One gram (1000 milligrams) for mercury-added fabricated products or two hundred fifty (250) parts per million (ppm) for mercury-added formulated products, effective two (2) years from the effective date of this chapter;

(ii) One hundred (100) milligrams for mercury-added fabricated products or fifty (50) parts per million (ppm) for mercury-added formulated products, effective four (4) years from the effective date of this chapter; and

(iii) Ten (10) milligrams for mercury-added fabricated products or ten (10) parts per million (ppm) for mercury-added formulated products, effective six (6) years from the effective date of this chapter.

(b) For a product that contains one (1) or more mercury-added products as a component, this section is applicable to each component part or parts and not to the entire product. For example, if an iron has a mercury switch, the phase-out applies to the switch and not the entire iron.

(c) For a product that contains more than one (1) mercury-added product as a component, the phase-out limits specified in section 23-24.9-7(a) apply to each component and not the sum of the mercury in all of the components. For example, for a car that contains mercury-added switches and lighting, the phase-out limits would apply to each component separately, and not the combined total of mercury in all of the components.

(d) Fluorescent lamps shall be exempt from the requirements of section 23-24.9-7(a). As of January 1, 2010, the mercury content of fluorescent bulbs shall either not exceed ten (10) milligrams or the manufacturer shall comply with the exemption requirements pursuant to section 23-24.9-7(f).

(e) A mercury-added product shall be exempt from the limits on total mercury content set forth in section 23-24.9-7(a) if the level of mercury or mercury compounds contained in the product are required in order to comply with federal or state health or safety requirements. In order to claim exemption under this section, the manufacturer must notify the department, in writing, and provide the legal justification for the claim of exemption.

(f) Manufacturers of a mercury-added product may apply to the director for an exemption for no more than two (2) years from the limits on total mercury content set forth in section 23-24.9-7(a) for a product or category of products. Applications for exemptions must: (i) document the basis for the requested exemption or renewal of exemption; (ii) describe how the manufacturer will ensure that a system exists for the proper collection, transportation and processing of the product(s) at the end of their useful life; and (iii) document the readiness of all necessary parties to perform as intended in the planned system.

(g) The director may grant, with modifications or conditions, an exemption for a product or category of products if he or she finds: (i) a system exists for the proper collection, transportation and processing of the mercury-added product, including direct return of a waste product to the manufacturer, an industry or trade group supported collection and recycling system, or other similar private or public sector efforts; and (ii) he or she finds each of the following criteria are met:

(1) use of the product is beneficial to the environment or protective of public health or protective of public safety; and

(2) there is no technically feasible alternative to use of mercury in the product; and

(3) there is no comparable non-mercury-added product available at reasonable cost.

Prior to issuing an exemption, the director shall consult with neighboring states and provinces and regional organizations to promote consistency. The state shall avoid, to the extent feasible, inconsistencies in the implementation of this section. Upon reapplication by the manufacturer and findings by the director of continued eligibility under the criteria of this subsection and of compliance by the manufacturer with the conditions of the director's original approval, an exemption may be renewed one (1) or more times and each renewal may be for a period of no longer than two (2) years.

23-24.9-8. Labeling required for certain products. - (a) (i) Effective January 1, 2004, a manufacturer may not sell at retail in this state or to a retailer in this state, and a retailer may not knowingly sell, a mercury-added product unless the item is labeled pursuant to this subsection. The label must clearly inform the purchaser or consumer that mercury is present in the item and that the item may not be disposed of or placed in waste stream destined for disposal until the mercury is removed or reused, recycled or otherwise managed to ensure that it does not become part of solid waste or wastewater. Manufacturers shall affix to mercury-added products labels that conform to the requirements of this subsection.

(ii) The department shall adopt rules to establish standards for affixing labels to the product and product package. The rules must strive for consistency with labeling programs in other states and provide for approval of alternative compliance plans by the department. This subsection does not apply to mercury-added lamps, mercury-added button cell batteries and products whose only mercury component is a mercury button cell battery or a mercury added lamp.

(b) Mercury-added lamps; large use applications. (i) A person who sells mercury-added lamps to the owner or manager of an industrial, commercial or office building or to any person who replaces or removes from service outdoor lamps that contain mercury shall clearly inform the purchaser in writing on the invoice for the lamps or in a separate document that the lamps contain mercury, a hazardous substance that is regulated by federal and state law, and that they may not be placed in solid waste destined for disposal. Retail establishments that incidentally sell mercury-added lamps to the specified purchasers are exempt from the requirements of this subsection.

(ii) A person who contracts with the owner or manager of an industrial, commercial or office building or with a person responsible for outdoor lighting to remove from service mercury-added lamps shall clearly inform in writing the person for whom the work is being done that the lamps being removed from service contain mercury and what the contractor's arrangements are for the management of the mercury in the removed lamps.

23-24.9-9. Disposal ban. -- (a) After January 1, 2004, 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: (i) anyone who disposes of a mercury-added button cell battery; (ii) mercury-added components as contained in motor vehicles; and (iii) households disposing of lamps and products containing lamps.

23-24.9-10. Collection of mercury-added products. - (a) After January 1, 2003, 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 submitted a plan for a convenient and accessible collection system for such products when the consumer is finished with them and such a plan has received approval of the director. 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.

(b) (i) 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 (ii) this section shall not apply to motor vehicles.

23-24.9-11. Disclosure for mercury-added formulated products -- Healthcare facilities. -- (a) By January 1, 2003, the manufacturers of formulated mercury-added products offered for sale or use to a health care facility in Rhode Island must provide both the director and the recipient healthcare facility a certificate of analysis documenting the mercury content of the product, down to a one (1) part per billion level. Such formulated mercury-added products include, but are not limited to: acids; alkalis; bleach (sodium hypochlorite); materials used for cleaning, in maintenance, or for disinfection; stains; reagents; preservatives; fixatives; buffers; and dyes.

(b) The certificate of analysis must report the result of an analysis performed for mercury on the specific batch or lot of that product offered for sale. The batch or lot number of the product shall be clearly identified on the product and on the certificate of analysis.

23-24.9-12. Limitations on the use of elemental mercury. -- After January 1, 2003, no person may sell or provide elemental mercury to another person in Rhode Island, except for manufacturing or recycling or disposal purposes, without providing a material safety data sheet, as defined in the United States code, title 42, section 11049, and requiring the purchaser or recipient to sign a statement that the purchaser: (i) will use the mercury only for medical, dental amalgam dispose-caps, research, or manufacturing purposes; (ii) understands that mercury is toxic and that the purchaser will store and use it appropriately so that no person is exposed to the mercury; and (iii) will not place or allow anyone under the purchaser's control to place or cause to be placed the mercury in solid waste for disposal or in a wastewater treatment and disposal system.

23-24.9-13. Existing inventories. -- Those mercury-added products with a code or date of manufacture indicating they were manufactured prior to the effective date of this chapter are exempt from section 23-24.9-6 through section 23-24.9-8 and section 23-24.9-10 and section 23-24.9-11. If the mercury-added product has a date of manufacture or the manufacturer can provide documentation that the product in question was manufactured prior to the effective date of this chapter, it is exempt from the above listed sections. Situations that are beyond the control of the manufacturer, such as old stock being held by retailers, should be addressed on a case-by-case basis.

23-24.9-14. Public education and outreach. -- (a) The director shall coordinate the development of a public education, outreach, and assistance program for households, hazardous waste generators, local and regional solid waste management agencies, small businesses, health care facilities, scrap metal facilities, dismantlers, institutions, schools, and other interested groups in concert with other relevant state agencies. This public education, outreach, and assistance program should focus on the hazards of mercury; the requirements and obligations of individuals, manufacturers, and agencies under this law; and voluntary efforts that individuals, institutions, and businesses can undertake to help further reduce mercury in the environment.

(b) The director shall cooperate with the neighboring states and provinces and regional organizations in the northeastern U.S. and Canada on developing outreach, assistance, and education programs, where appropriate.

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

23-24.9-16. Violations. -- A violation of any of the provisions of this law or any rule or regulation promulgated pursuant thereto shall be punishable, in the case of a first violation, by a civil penalty not to exceed one thousand dollars ($1,000). In the case of a second and any further violations, the liability shall be for a civil penalty not to exceed five thousand dollars ($5,000) for each violation.

23-24.9-17. State review. -- The department shall, in consultation with the conference of New England Governors/Eastern Canadian Premiers Environment Committee and/or an interstate mercury clearinghouse should one be developed, coordinate a review of the effectiveness of this chapter no later than January 1, 2006, and shall provide a report based upon that review to the governor and general assembly. The report shall review the effectiveness of the programs as established under the chapter and contain recommendations for improving them. As part of this review, the department shall evaluate the effectiveness of the collection systems established under this chapter and determine whether additional state authority or targeted capture rates are needed to improve those systems. In addition to this review process, the department shall evaluate the need for additional incentives for manufacturers of mercury-added products that are below ten (10) milligrams to reduce the amount of mercury in those products.

23-24.9-18. Application to products regulated by Food and Drug Administration (FDA). -- Nothing in this chapter shall apply to prescription drugs regulated by the Food and Drug Administration under the Federal Food, Drug and Cosmetic Act, 21 USC 301 et. seq., to biological products regulated by the Food and Drug Administration under the Public Health Service Act, 42 USC 262 et. seq., or to any substance that may be lawfully sold over the counter without a prescription under the Federal Food, Drug and Cosmetic Act, 21 USC 301 et. seq.

23-24.9-19. Mercury advisory working group. -- The department of environmental management shall be authorized to coordinate the development of a mercury reduction and education advisory working group to examine the need for additional legislative and regulatory changes pertaining to the continued elimination of mercury-added products in the State of Rhode Island. This advisory working group may include, but not be limited to, designees from the following: the general assembly, department of environmental management, department of health, the attorney general's office, state and/or national organizations interested in mercury reduction and education, consumer and children's advocacy groups, local chambers of commerce, and those industries that manufacture consumer products which contain mercury.

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.

23-24.9-21. Severability and construction. -- The provisions of this chapter shall be severable, and if any court declares any phase, clause, sentence, or provision of this chapter to be invalid, or its applicability of any government, agency, person, or circumstance is declared invalid, the remainder of the chapter and its relevant applicability shall not be affected. The provisions of this chapter shall be liberally construed to give effect to the purposes thereof.

SECTION 2. This act shall take effect upon passage.


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