Connecticut Seal

Substitute House Bill No. 5539

Public Act No. 02-90

AN ACT CONCERNING MERCURY EDUCATION AND REDUCTION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective July 1, 2002) The General Assembly finds that mercury is a persistent and toxic pollutant that bioaccumulates in the environment, and that in order to create and maintain a healthful environment and protect public health, the virtual elimination of the discharge of anthropogenic mercury should be pursued.

Sec. 2. (NEW) (Effective July 1, 2002) As used in sections 1 to 14, inclusive, of this act:

(1) "Mercury" means elemental mercury and mercury compounds;

(2) "Mercury-added product" means a product, commodity, chemical or component of a product that contains mercury or a mercury compound that is intentionally added for any reason. "Mercury-added product" includes, but is not limited to, formulated mercury-added products and fabricated mercury-added products. "Mercury-added product" does not include any packaging component, as defined in subdivision (3) of section 22a-255h of the general statutes;

(3) "Formulated mercury-added product" means a mercury-added product that is sold as a consistent mixture of chemicals, including, but not limited to, laboratory chemicals, materials used for cleaning, maintenance or disinfection, cosmetics, pharmaceuticals, coating materials, acids, alkalites, bleach, pharmaceutical products, stains, reagents, preservatives, fixatives, buffers and dyes;

(4) "Fabricated mercury-added product" means a mercury-added 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;

(5) "Mercury fever thermometer" means a mercury-added product that is used for measuring body temperature, but does not mean a digital thermometer that includes a removable button cell battery containing mercury;

(6) "Mercury-added novelty" means a mercury-added product intended mainly for personal or household enjoyment or adornment, including, but not limited to, products intended for use as practical jokes, figurines, adornments, toys, games, cards, ornaments, yard statutes and figures, candles, jewelry, holiday decorations, footwear, other items of apparel or similar products. A product is not a "mercury-added novelty" solely on the basis that it includes a removable button cell battery containing mercury;

(7) "Manufacturer" means any person that (A) produces a mercury-added product, or (B) serves as an importer or domestic distributor of a mercury-added product produced outside the United States. In the case of a multi-component product, "manufacturer" means the last manufacturer to produce or assemble the product, unless the multi-component mercury-added product is produced outside the United States, in which case "manufacturer" means the importer or domestic distributor;

(8) "Person" means any individual, organization, partnership, joint venture, association, firm, limited liability company, corporation or other entity, and includes a municipality, the federal government, the state or any instrumentality of the state, or other governmental entity and any officer or governing or managing body of any partnership, association, firm or corporation or any member or manager of a limited liability company;

(9) "Vehicle" means any device capable of being moved upon a public highway and any device in, upon or by which any person or property is or may be transported or drawn upon a public highway, but does not include devices moved by human or animal power or used exclusively upon stationary rails or tracks;

(10) "Scrap metal" means used or discarded items that consist predominantly of ferrous metals, aluminum, brass, copper, lead, chromium, tin, nickel or alloys;

(11) "Solid waste" means unwanted or discarded solid, liquid, semisolid or contained gaseous material, including, but not limited to, demolition debris, material burned or otherwise processed at a resources recovery facility or incinerator, material processed at a recycling facility, sludges or other residue from a water pollution abatement facility, water supply treatment plan or air pollution control facility;

(12) "Commissioner" means the Commissioner of Environmental Protection.

Sec. 3. (NEW) (Effective July 1, 2002) The commissioner shall participate in the regional, multi-state clearinghouse to assist in carrying out the requirements set forth in sections 1 to 14, inclusive, of this act to act as the designated agent of the clearinghouse for the purposes of receiving notifications and submissions of information as required by this act and to help coordinate reviews of the manufacturers' notifications regarding mercury-added products, applications for phase-out exemptions, collection system plans, disclosures of mercury-added content, applications for alternative labeling or notification systems or both, education and outreach activities, and any other functions related to sections 1 to 14, inclusive, of this act.

Sec. 4. (NEW) (Effective July 1, 2002) (a) On and after January 1, 2003, no person shall offer any mercury-added product for sale or distribute for promotional purposes in this state unless the manufacturer or its designated industrial trade group gives prior notification in writing to the commissioner or the regional, multi-state clearinghouse described in section 3 of this act as provided in this section. Such notification, in a form prescribed by the commissioner, shall at a minimum include (1) a brief description of the product or category of products to be offered for sale or distributed; (2) an identification of each product by its mercury content in one of the following ranges: Less than zero to five milligrams, greater than five milligrams to ten milligrams, greater than ten milligrams to fifty milligrams, greater than fifty milligrams to one hundred milligrams, greater than one hundred milligrams to one thousand milligrams and greater than one thousand milligrams; (3) the actual total amount of mercury in each product; and (4) the name and address of the manufacturer and the position, address and phone number of a contact person at the manufacturer. The manufacturer or its designated industrial trade group shall revise the information in the notification whenever there is significant change in the information or when requested by the commissioner or the regional, multi-state clearinghouse.

(b) Any mercury-added product for which federal law preempts state authority over notice requirements is exempt from the requirements of this section.

(c) With the approval of the commissioner, the manufacturer or its designated industrial trade group may supply the information required in subdivisions (1) to (3), inclusive, of subsection (a) of this section for a product category rather than an individual product.

(d) Public disclosure of trade secrets submitted to the commissioner pursuant to this section shall be governed by the provisions of chapter 14 of the general statutes. Notwithstanding the provisions of said chapter 14, the commissioner may provide the regional, multi-state clearinghouse described in section 3 of this act with copies of such information and the commissioner, in consultation with the clearinghouse, may compile or publish analyses or summaries of such information, provided the analyses or summaries do not identify any manufacturer or reveal any confidential information.

Sec. 5. (NEW) (Effective July 1, 2002) (a) Notwithstanding the provisions of section 6 of this act, on and after July 1, 2003, no person shall offer for sale or distribute for promotional purposes in the state any mercury-added novelty. A manufacturer that produces or sells mercury-added novelties shall notify retailers that sell mercury-added novelties about such product ban and inform such retailers of how to dispose of the remaining inventory in accordance with the hazardous waste provisions of title 22a of the general statutes.

(b) Notwithstanding the provisions of section 6 of this act, on and after January 1, 2003, no person shall offer for sale or distribute for promotional purposes mercury fever thermometers except by prescription written by a physician. A manufacturer of mercury fever thermometers shall provide the buyer or the recipient with notice of mercury content, instructions on proper disposal and instructions that clearly describe how to carefully handle the thermometer to avoid breakage and on proper cleanup should a breakage occur.

(c) Notwithstanding the provisions of section 6 of this act, on and after July 1, 2003, no person shall offer for sale or distribute for promotional purposes mercury dairy manometers. A manufacturer that produces or sells mercury dairy manometers shall notify retailers about the provisions of this subsection and how to dispose of the remaining inventory properly in accordance with title 22a of the general statutes. The Commissioner of Environmental Protection, in consultation with the Commissioner of Agriculture, shall examine the feasibility of implementing a collection and replacement program for dairy manometers, and shall implement such a program within available appropriations.

(d) On and after July 1, 2003, no vocational dental education or training school shall use mercury amalgam unless such school has developed and implemented a plan approved by the commissioner that assures best management practices are used to prevent discharge of mercury into the waters of the state, any pollution abatement facility or subsurface sewage disposal system, and to properly handle and recycle or dispose of waste elemental mercury and amalgam. Such plan shall provide for an education program for students regarding the hazards of mercury and best management practices.

Sec. 6. (NEW) (Effective July 1, 2002) (a) Except as provided in section 7 of this act, except for products that contain a mercury-containing lamp used for backlighting that cannot feasibly be removed by the purchaser and except for specialized lighting used in the entertainment industry such as metal halide lights, no person shall offer for sale or distribute for promotional purposes any mercury-added product if: (1) After July 1, 2004, the mercury content of the product exceeds one gram in the case of fabricated mercury-added products or two hundred fifty parts per million in the case of formulated mercury-added products; and (2) on and after July 1, 2006, the mercury content of the product exceeds one hundred milligrams in the case of fabricated mercury-added products or fifty parts per million in the case of formulated mercury-added products.

(b) Not later than July 1, 2003, the commissioner shall convene a working group which shall include, but not be limited to, government representatives from other northeastern states to evaluate advances in technology and make recommendations regarding the regulation of mercury-added products that have a mercury content in excess of ten milligrams or ten parts per million but less than one hundred milligrams or fifty parts per million and specialized lighting used in the entertainment industry such as metal halide lights. Within such working group, the commissioner shall convene a subgroup which shall include, but not be limited to, industry trade groups for mercury-containing lamps to develop a plan in accordance with section 9 of this act to provide for the collection of such lamps. The working group shall finalize such recommendations not later than July 1, 2004.

(c) In the case of a product that contains one or more mercury-added products as a component, the phase-out limits specified in subsection (a) of this section apply to each component part or parts and not to the entire product.

Sec. 7. (NEW) (Effective July 1, 2002) (a) The commissioner shall exempt a mercury-added product from the limits on total mercury content set forth in subsection (a) of section 6 of this act if the level of mercury or mercury compounds contained in the product are necessary to comply with federal or state health or safety requirements. In order to obtain such exemption, the manufacturer shall provide the commissioner and notify the regional, multi-state clearinghouse described in section 3 of this act with information that demonstrates such necessity.

(b) A manufacturer of a mercury-added product or category of products may apply to the commissioner and notify the clearinghouse for a modified or conditional exemption from the limits on total mercury content set forth in subsection (a) of section 6 of this act provided such exemption shall be for not more than four years.

(c) The manufacturer shall apply for a modified or conditional exemption (1) not later than one year before the effective date of the limit for which the exemption is being requested in the case of an existing product or category of products, or (2) prior to the sale or distribution in the case of promotional purposes of a new product or category of products.

(d) An application for a modified or conditional exemption shall (1) document the basis for the requested exemption or renewal of exemption, and (2) describe how the manufacturer will ensure that a system exists for the proper collection, transportation and processing of the product or products at the end of their useful life.

(e) In determining whether to grant a modified or conditional exemption for a product or category of products the commissioner shall consider (1) whether a system exists for the proper collection, transportation and processing of the mercury-added product, including, but not limited to, a system for the direct return of a waste product to the manufacturer or a collection and recycling system that is supported by an industry or trade group, or other similar private or public sector efforts, and (2) whether each of the following criteria is met: (A) Use of the product is beneficial to the environment or protective of public health or protective of public safety; (B) there is no technically feasible alternative to the use of mercury in the product; (C) there is no comparable product, other than a mercury-added product, available at reasonable cost; and (D) with respect to a renewal of an exemption, reasonable efforts have been made to remove mercury from the product.

(f) Prior to issuing a modified or conditional exemption, the commissioner shall consult with the clearinghouse, states, Canadian provinces and regional governmental organizations to promote consistency in the implementation of this section.

(g) The commissioner may renew, for a period of not longer than four years, a modified or conditional exemption one or more times if (1) the manufacturer applies for the renewal, and (2) the commissioner finds that the manufacturer meets the requirements for such exemption and that the manufacturer has complied with all the conditions of the original approval.

Sec. 8. (NEW) (Effective July 1, 2002) (a) Except as provided in subsection (g) of this section, on and after July 1, 2004, no person shall offer for sale or distribute for promotional purposes any mercury-added product unless both the product and either its packaging or care and use manual are labeled in accordance with this section, any regulations adopted under this section or the terms of any approved alternative labeling or notification granted under subsection (h) of this section. A retailer shall not be found in violation of this subsection if the retailer lacked knowledge that the product contained mercury.

(b) Except as provided in subsection (g) of this section, if a mercury-added product is a component of another product, the product containing the component and the component shall both be labeled as provided in this section, provided such component may feasibly be removed from the product by the purchaser. The label on a product containing a mercury-added component that can be feasibly removed shall identify the component with sufficient detail so that the component may be readily located for removal.

(c) All labels contained on packaging shall be clearly visible prior to sale and all labels required on the product packaging or in the care and use manual shall be sufficient to inform the purchaser, using words or symbols, that mercury is present in the product and that the product should be properly disposed of or recycled in accordance with the hazardous waste provisions of title 22a of the general statutes.

(d) Labels affixed to the product shall be constructed of materials that are sufficiently durable to remain legible for the useful life of the product.

(e) On and after July 1, 2004, any person offering a mercury-added product for sale through a catalog, or distributing such product for promotional purposes shall clearly advise in writing the purchaser or recipient prior to the time of sale or distribution that the product contains mercury. On and after July 1, 2004, any person offering a mercury-added product for sale by telephone shall clearly advise the purchaser or recipient prior to the time of sale that the product contains mercury. Such requirements shall apply to such transactions in which the purchaser or recipient is unable to view the labels on the package or the product prior to purchase or receipt.

(f) The manufacturer of a product shall be responsible for product and package labels required under this section, unless the wholesaler or retailer agrees in writing to accept the responsibility of implementing an alternative to the labeling requirements of this section provided such alternative is approved under subsection (h) of this section.

(g) (1) Manufacturers shall meet all the requirements of this section for large appliances, including, but not limited to, washers, dryers, ovens, including microwave ovens, refrigerators, air conditioners, dehumidifiers or portable heaters sold in a store where such appliance is on display, except that no package labeling shall be required; (2) manufacturers shall meet all the requirements of this section for mercury fever thermometers, except that no product labeling shall be required; (3) in the case of vehicles, (A) manufacturers shall meet the product labeling requirements of this section for vehicles by placing a label on the doorpost of the vehicles that lists the mercury-added components that may be present in the vehicle, and (B) manufacturers shall not be required to label the mercury-added components of the vehicle; (4) manufacturers of products that contain a mercury-containing lamp used for backlighting that cannot feasibly be removed by the purchaser shall meet the product labeling requirements of this section by placing the label on the product or its care and use manual; (5) manufacturers shall meet all the requirements of this section for button cell batteries containing mercury, except that no labeling shall be required; (6) in the case of products that contain button cell batteries containing mercury as the only mercury components, manufacturers shall meet the packaging requirements of this section by including a label in the product instructions, if any, and on the packaging, and no further product labeling shall be required; (7) manufacturers of fluorescent lights shall meet the labeling requirements of this section by labeling the product packaging; and (8) manufacturers of medical equipment not intended for use by nonmedical personnel are exempt from this section.

(h) (1) A manufacturer may apply to the commissioner and the regional, multi-state clearinghouse described in section 3 of this act for an alternative to the requirements of subsections (a) to (g), inclusive, of this section if: (A) Compliance with the requirements is not feasible; (B) the proposed alternative would be at least as effective in providing presale notification of mercury content and in providing instructions on proper disposal; or (C) federal law preempts state authority over labeling.

(2) The commissioner may approve, deny, modify or condition a request for an alternative to the requirements of subsections (a) to (g), inclusive, of this section. An approval shall be for a period of no more than two years and may, upon continued eligibility under the criteria of this section and compliance with the conditions of its prior approval, be renewed. Requests for renewals shall be submitted ninety days before the expiration of the approval. Prior to approving an alternative, the commissioner shall consult with states, Canadian provinces and regional government organizations to insure that the commissioner's labeling requirements are consistent with those of other jurisdictions in the region. The commissioner may revoke an approval for cause.

(i) Notwithstanding the provisions of this section, a person who sells mercury-added lamps to the owner or manager of any 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 the solid waste destined for disposal. Retail establishments that incidentally sell mercury-added lamps to purchasers are exempt from the requirements of this subsection. 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.

Sec. 9. (NEW) (Effective July 1, 2002) (a) On and after July 1, 2003, no person shall offer any mercury-added product for sale or distribute any such product for promotional purposes unless the manufacturer either on its own or in concert with other persons has submitted a plan to the commissioner for a system that reasonably enables the collection of such products. If a mercury-added product is a component of another product, the collection system shall provide for removal and collection of the mercury-added component or collection of both the mercury-added component and the product containing it.

(b) The collection system shall include (1) a public education program to inform the public about the purpose of the collection program and how to participate in it; (2) a targeted capture rate for the mercury-added product or component; (3) a plan for implementing and financing the collection system; (4) documentation of the willingness of all parties to the system to implement the proposed collection system; (5) a description of the performance measures to be utilized and reported by the manufacturer to demonstrate that the collection system is meeting capture rate targets; (6) a description of additional or alternative actions that will be implemented to improve the collection system and its operation in the event that the program targets are not met; and (7) a recycling or disposal plan.

(c) Not later than July 1, 2004, and biennially thereafter, the manufacturer or entity that submitted the plan on behalf of the manufacturer shall submit a report to the commissioner and to the regional, multi-state clearinghouse described in section 3 of this act on the effectiveness of the collection system. The report shall include an estimate of the amount of mercury that was collected, the capture rate for the mercury-added products or components, the results of the other performance measures included in the manufacturer's collection system plan, and such other information as the commissioner may require. The commissioner shall make such reports available to the public.

(d) The cost for the collection system shall not be borne by state or local government.

(e) The commissioner shall review any impediments identified pursuant to subdivision (7) of subsection (b) of this section and the regulations adopted under title 22a of the general statutes governing handling of waste from mercury-added products and, if necessary, may amend regulations as appropriate to facilitate collection.

(f) The following are exempt from the provisions of this section: (1) Formulated mercury-added products intended to be consumed in use, including, but not limited to, reagents, cosmetics, pharmaceuticals and other laboratory chemicals; (2) fabricated mercury-containing products where the only mercury is contained in a component that cannot feasibly be removed by the purchaser including, but not limited to, electronic products whose only mercury-added component is a mercury-containing lamp used for backlighting provided such manufacturer or trade association maintains a web-based service to provide information on recycling and safe disposal of such products; (3) photographic film and paper; (4) a manufacturer or trade association of mercury-containing lamps that maintain a toll-free telephone number and an Internet-based service to provide information on recycling and safe disposal of such lamps and directs consumers to such telephone number and service on any statutorily-required package label; and (5) any other product for which the commissioner determines a collection plan is not feasible.

Sec. 10. (NEW) (Effective July 1, 2002) Except as provided in section 11 of this act, no person shall offer for sale or distribute for promotional purposes or provide elemental mercury without providing a Material Safety Data Sheet, as defined in 42 USC 11049. On and after July 1, 2003, the seller, distributor or provider shall require the purchaser or recipient at the time of receipt of any elemental mercury to sign a statement that the purchaser or recipient (1) will use the mercury only for medical, research or manufacturing purposes; (2) understands that mercury is toxic and that the purchaser will store, use and otherwise handle exposure to such mercury in accordance with state and federal law; and (3) will dispose of the elemental mercury in accordance with state and federal law.

Sec. 11. (NEW) (Effective July 1, 2002) No person shall offer for sale, distribute for promotional purposes or provide elemental mercury to a dental practitioner without providing a Material Safety Data Sheet, as defined in 42 USC 11049. On and after July 1, 2003, such dental practitioner shall (1) use the mercury only for dental purposes; (2) store, use and otherwise handle exposure to such mercury in accordance with the accepted guidelines of the American Dental Association, state and federal law and any applicable best management practices adopted by the state; and (3) dispose of the elemental mercury in accordance with state and federal law.

Sec. 12. (NEW) (Effective July 1, 2002) (a) Mercury-added products with a code or date of manufacture indicating they were manufactured prior to January 1, 2003, or mercury-added products for which the manufacturer provides documentation that the product was manufactured prior to January 1, 2003, shall be exempt from section 4 of this act, except that motor vehicles with a code or date of manufacture prior to October 1, 2003, or motor vehicles for which the manufacturer provides documentation that the product was manufactured prior to October 1, 2003, shall be exempt from such sections.

(b) Mercury-added products with a code or date of manufacture indicating they were manufactured prior to January 1, 2004, or mercury-added products for which the manufacturer provides documentation that the product was manufactured prior to January 1, 2004, shall be exempt from sections 6 and 8 of this act, except that motor vehicles with a code or date of manufacture prior to October 1, 2003, or motor vehicles for which the manufacturer provides documentation that the product was manufactured prior to October 1, 2003, shall be exempt from such sections.

(c) Mercury-added products with a code or date of manufacture indicating they were manufactured prior to July 1, 2003, or mercury-added products for which the manufacturer provides documentation that the product was manufactured prior to July 1, 2003, shall be exempt from section 9 of this act, except that motor vehicles with a code or date of manufacture prior to October 1, 2003, or motor vehicles for which the manufacturer provides documentation that the product was manufactured prior to October 1, 2003, shall be exempt from such sections.

Sec. 13. (NEW) (Effective July 1, 2002) (a) The commissioner, in consultation with other state agencies, may implement a comprehensive program for public education, outreach and assistance for manufacturers, households, waste generators, local and regional solid waste management agencies, businesses, health care facilities, scrap metal processors, recyclers, dismantlers, institutions, schools and other interested groups. Such program may focus on the hazards of mercury; the requirements and obligations of individuals, manufacturers and agencies under sections 1 to 12, inclusive, of this act and voluntary efforts that individuals, institutions and businesses can undertake to help further reduce mercury in the environment. The commissioner, in conjunction with manufacturers of mercury-added products and other affected businesses, may promote the development and implementation of such public education and technical assistance programs.

(b) The commissioner may cooperate with other states and Canadian provinces and regional organizations in developing public education, outreach and assistance programs.

(c) The commissioner may develop an awards program to recognize the accomplishments of those persons who exceed the minimum requirements of sections 4 to 12, inclusive, of this act, and who excel at reducing or eliminating mercury in air emissions or releases.

Sec. 14. (NEW) (Effective July 1, 2002) The provisions of this act shall not apply to pharmaceuticals, pharmaceutical products, biological products or any substance that may be lawfully sold over the counter without a prescription under the federal Food, Drug and Cosmetics Act, 21 USC 301 et seq. For purposes of this section, "Biological product" means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product or an analogous product, or arsphenamine a derivative of arsphenamine or any other trivalent organic arsenic compound used for the prevention, treatment or cure of a disease or condition of human beings.

Approved June 3, 2002