31jan02...2254h

2001 SESSION

01-0192

05/10

HOUSE BILL 675

COMMITTEE: Environment and Agriculture

AMENDED ANALYSIS

This bill establishes certain restrictions on the sale, labeling, and disposal of certain mercury-added products. This bill also establishes an advance disposal fee to be assessed at the point of distribution on mercury-added products. Fees shall be collected by the department of environmental services to be deposited in a special fund and used for grants for eligible local presorting and recycling programs and for educating the public on the hazards of mercury.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

31jan02...2254h

01-0192

05/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Mercury Reductions; Definitions Added. Amend RSA 149-M:51 to read as follows:

149-M:51 Definitions. In this subdivision:

I. "Component manufacturer" means any person who produces a mercury-added product that is incorporated into another product, including but not limited to electrical switches, relays, and lamps.

II. "Fabricated mercury-added product" means a product that consists of a combination of individual components, one or more of which is mercury-added, that combine to make a single unit.

III. "Formulated mercury-added product" means a chemical product, including but not limited to laboratory chemicals, cleaning products, cosmetics, pharmaceuticals, and coating materials, that are sold as a consistent mixture of chemicals.

IV. "Health care 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.

V. "Manufacturer" means any person, firm, association, partnership, corporation, governmental entity, organization, combination, or joint venture which produces a product containing mercury or an importer or domestic distributor of a product containing mercury produced in a foreign country. In the case of a multi-component product containing mercury 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.

[II.] VI. "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 practical jokes, figurines, adornments, toys, games, cards, ornaments, yard statues and figures, candles, jewelry, holiday decorations, and items of apparel, including footwear.

[III.] VII. "Mercury-added product" means a product, [or a product with a component that contains mercury or a mercury compound intentionally added to the product or component in order to provide a specific characteristic, appearance, or quality or to perform a specific function or for any other reason], 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.

[IV.] VIII. "Mercury fever thermometer" means a mercury-added product that is used for measuring body temperature.

[V.] IX. "Product containing mercury" means any product or any product with a component that contains mercury or a mercury compound from any source or cause, whether intended or unintended, including, but not limited to, a mercury-added product and a product manufactured using mercury.

2 Notification. RSA 149-M:52 is repealed and reenacted to read as follows:

149-M:52 Notification.

I. No mercury-added product shall be offered for final sale or use or distributed for promotional purposes in this state without prior notification in writing by the manufacturer of the product or its industry trade group to the department in accordance with the requirements of this section. The individual component manufacturer shall remain responsible for providing the information in accordance with the requirements of this section. Importers of these products shall assure that the manufacturer has complied with this section before sale or use or distribution in the state. Such notification shall as a minimum include:

(a) A brief description of the product to be offered for sale, use, or distribution.

(b) For each individual product, or for each category of product, identification of its mercury content in one of the following ranges: greater than 0 to 5 mg, greater than 5 mg to 10 mg, greater than 10 mg to 50 mg, greater than 50 mg to 100 mg, greater than 100 mg to 1000 mg, or greater than 1000 mg.

(c) For each individual product or category of products, identification of the purpose that mercury serves in the product.

(d) The name and address of the manufacturer, and the name, address, and telephone number of a contact person for the manufacturer.

(e) The total amount of mercury contained in all their products containing mercury sold in the United States. This information may be provided either by individual manufacturers or aggregated for an industry by a trade group. This information shall be based on prior calendar year sales and shall be updated in 3-year intervals or sooner for categories of mercury-added products where there has been a significant change in the amount of mercury used by that product category.

II. The manufacturer shall update and revise the information in the notification when requested by the department.

III. Any information furnished pursuant to the requirements of this section, which, as certified by the manufacturer, relates to production or sales figures or to processes or production unique to the manufacturer or which would tend to affect adversely the competitive position of the manufacturer, shall be only for the confidential use of the department and the interstate clearing house in the administration of this section, unless the manufacturer shall expressly agree to its publication or availability to the general public. Nothing in this section shall be construed to prevent the use of such information by the department and the interstate clearinghouse in compiling or publishing analyses or summaries relating to the amount and effect of mercury in products and the environment; provided that the analyses or summaries do not identify any manufacturer or reveal any information otherwise confidential under this section.

IV. 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, and the identity of the manufacturer of the components.

V. This section shall not apply to prescription drugs or any substance regulated by the Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq. or to biological products regulated by the Food and Drug Administration under the Public Health Service Act, 42 U.S.C. 262 et seq.

3 New Paragraph; Restrictions on the Sale of Certain Mercury-Added Products; Sale of Mercury Dairy Manometers Prohibited. Amend RSA 149-M:53 by inserting after paragraph III the following new paragraph:

IV. One year after the effective date of this paragraph no mercury dairy manometers shall be offered for final sale or use or distributed for promotional purposes in New Hampshire. Manufacturers that produce and sell mercury dairy manometers shall notify retailers about the provisions of this paragraph and how to dispose of the remaining inventory properly. The department, in consultation with the department of agriculture, shall examine the feasibility of implementing a state-wide education, collection, and replacement program for dairy manometers.

4 New Sections; Requirements Relative to Consumer Information, Notification, and Disposal of Mercury-Added Products; Advance Disposal Fee; Reduction, Education and Management Fund. Amend RSA 149-M by inserting after section 57 the following new sections:

149-M:58 Consumer Information About Mercury-Added Products.

I. Two years after the effective date of this section, any person offering a mercury-added product for final sale or use or promotional purposes to an address in New Hampshire shall advise clearly the purchaser or recipient at the point of sale, either in writing or by labeling, that the product contains mercury and that the product so identified should not be disposed of or placed in a waste stream destined for disposal at any waste combustor, in a waste treatment facility, or into any landfill until the mercury is removed and reused, recycled, or otherwise managed to ensure that the mercury in the product does not become mixed with other solid waste or wastewater.

II. Where a mercury-added product is a component of another product, the product containing the component shall be indicated in writing or by labeling that the product contains components fabricated with mercury. Those internal components shall also be identified clearly.

III. The manufacturer shall be responsible for identifying the product or products with a mercury component and shall advise the purchaser or recipient of the mercury content; the wholesaler or retailer shall not be responsible for such identification unless that wholesaler or retailer agrees with the manufacturer to accept responsibility. In the case of a multi-component product the manufacturer ultimately responsible for identifying mercury content is the last manufacturer to produce or assemble the final product. Importers of mercury-added products shall assure that the manufacturer has complied with this section before sale, use, or distribution in the state.

IV. This section shall not apply to prescription drugs or any substance regulated by the Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq. or to biological products regulated by the Food and Drug Administration under the Public Health Service Act, 42 U.S.C. 262 et seq.

149-M:59 Mercury-added Lamps: Large Use Applications.

I. A person who sells mercury-added lamps to the owner or manager of an industrial, commercial, institutional, 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 paragraph.

II. A person who contracts with the owner or manager of an industrial, commercial, institutional, 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. Such arrangements shall be consistent with state and federal law pertaining to the handling and disposal of mercury as a hazardous substance. Residential users are exempt from the requirements of this section.

149-M:60 Disposal Ban.

I. Five years after the effective date of this section, no person shall knowingly dispose of mercury-added products in solid waste landfills or incinerators.

II. Owners and operators of solid waste landfills, transfer stations, and incinerators may develop programs to sort, collect, and recycle or dispose of mercury-added products in accordance with applicable laws and regulations.

III. Except as otherwise provided by this section, every person who discards solid waste within the state shall separate mercury-added products from that solid waste for recycling or disposal as a hazardous waste. Any contractor who replaces or removes mercury-added products shall assure the proper separation and recycling or the disposal as a hazardous waste of any discarded mercury-added product.

IV. After proper separation of mercury-added products, each person who discards that waste shall either:

(a) Set that waste in a designated area for collection by a hauler who shall deliver that waste to a facility that is legally authorized and permitted to accept that waste; or

(b) Deliver that waste to a facility that is legally authorized and permitted to accept that waste.

V. Owners and operators of solid waste transfer, incineration, and landfill facilities shall not be found to have knowingly accepted or disposed of mercury-added products if, at a minimum, the facility has implemented all of the following mechanisms as required:

(a) Posting of signs at the facility providing notice of the prohibition against the disposal and incineration of mercury-added products.

(b) Written notification to, or agreements with, the facility's customers, providing notice of the prohibition against the disposal and incineration of mercury-added products.

(c) Implementation of a procedure, approved by the department, for periodically monitoring incoming wastes to detect the presence of mercury-added products at the facility and for separating out observed mercury-added products for return to the generator, recycling, or disposal as a hazardous waste.

(d) Provide customers with information about collection programs or facilities that are permitted to accept mercury-added products for recycling or disposal as a hazardous waste.

VI. Solid waste management facilities or any business in New Hampshire that accepts appliances or motor vehicles shall be responsible for removing mercury-added components, except lamps used for backlighting or displays, prior to crushing, shredding, or other scrap metal processing. The collected mercury-added components shall be recycled or disposed of as hazardous waste.

VII. This section shall not apply to prescription drugs or any substance regulated by the Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq. or to biological products regulated by the Food and Drug Administration under the Public Health Service Act, 42 U.S.C. 262 et seq.

149-M:61 Universal Waste Rule. The department may adopt or modify its rules governing universal hazardous waste, to promote the recycling, recovery, and proper management of elemental mercury and mercury-added products on a statewide and regional basis.

149-M:62 State Procurement Preferences for Low or Non-Mercury-Added Products.

I. Notwithstanding other policies and guidelines for the procurement of equipment, supplies, and other products, the department of administrative services shall, within one year of the effective date of this section, revise its policies, rules, and procedures to implement the purposes of this subdivision.

II. The department of administrative services shall give priority and preference to the purchase of equipment, supplies, and other products that contain no mercury-added compounds or components, unless there is no economically feasible non-mercury-added alternative that performs a similar function and is less harmful to the environment and public health. In circumstances where a non-mercury-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.

(a) The department of administrative services is authorized to give a price preference for products that contain no mercury or less mercury.

(b) This priority and preference shall apply to all state purchases, as well as any purchases made by others with state funds.

(c) With respect to lighting, energy efficient lamps for lighting purposes shall be purchased in preference to other less efficient lighting options. To the maximum extent possible, purchases shall be restricted to lights that contain the lowest total mercury content per lumen hour available. Spent bulbs shall be recycled.

(d) The procurement agent shall specify non-mercury or reduced mercury-added products, as applicable, in procurement bid documents.

(e) The department of administrative services shall investigate the potential cost savings from use of energy efficient lamps and shall implement a program of accelerated replacements in those applications where there is an estimated payback period of 3 years or less.

Advance Disposal Fee; Mercury Reduction and Management Fund

149-M:63 Advance Disposal Fee. An advance disposal fee shall be imposed on certain mercury-added products and shall be collected by the department from product wholesalers. For the purposes of this section, mercury-added products subject to an advanced disposal fee shall include, but not be limited to, fluorescent light bulbs, mercury-added thermostats, electrical tilt switches, mercury thermometers, or replacable mercury added products which are a component of another product and which would otherwise have been discarded or placed into a waste stream destined for disposal at any waste combustor, in a waste treatment facility, or into any landfill. The amount of the fee shall be 8 percent of the wholesale market price of any finished product. The fee shall be assessed at the point of distribution. Products from manufacturers, as defined in RSA 149-M:51, I, that have approved mercury reclamation or "take back" programs for mercury-added products shall be exempt from this advance disposal fee. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to determining what is an approved reclamation, "take back," or collection program. As of January 1, 2004, the department shall begin collecting the advance disposal fee and crediting sums received to the mercury reduction, education, and management fund.

149-M:64 Collection of Fees.

I. All advance disposal fees collected by the department shall be deposited into the mercury reduction, education, and management fund.

II. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to procedures for fee collection.

III. The department may apply for, request, solicit, contract for, receive, and accept gifts, grants, donations, and other assistance from any source to carry out the purposes of this subdivision.

IV. If payment required by this subdivision is not filed, or is incorrect or insufficient, the commissioner shall make a finding as such, and determine the amount of the fee due from any information available, and enforce payment.

149-M:65 Mercury Reduction, Education, and Management Fund. There is hereby established the mercury reduction, education, and management fund, to be used for the purposes of awarding grants to municipalities as provided in RSA 149-M:66 and for administrative costs of implementing this subdivision to include hiring any necessary personnel. This nonlapsing, revolving special fund is hereby continually appropriated to be expended by the department in accordance with this subdivision. All moneys collected under this subdivision and not currently needed to meet the obligations of the department under this subdivision shall be deposited with the state treasurer who shall keep this money in a separate fund, designated the mercury reduction, education and management fund, notwithstanding RSA 6:12. The state treasurer shall invest the moneys deposited as provided by law. Interest received on investments made by the state treasurer shall also be credited to the fund.

149-M:66 Grant Program. The department shall be responsible for the disbursement of the mercury reduction, education and management fund through a grant program under rules adopted by the commissioner, pursuant to RSA 541-A. The department shall distribute funds under this grant program to municipalities of the state to reimburse them for eligible costs related to the establishment of local mercury presorting and recycling programs. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to requirements for reimbursement of those municipalities that voluntarily develop a mercury presorting and collection program and to establish eligibility requirements and priority among all municipalities eligible to receive grants including municipalities which may have established a mercury presorting program prior to the effective date of this subdivision. Available funds shall be distributed on an annual basis and shall be disbursed on a prorated basis depending on funds received by the department. As of January 1, 2005, the department shall begin making grants pursuant to this program.

149-M:67 Agency Reporting. The department shall submit an annual report by September 1 of each year to the senate environment committee and the house environment and agriculture committee, commencing September 1, 2004, relative to the activities of the advance disposal fee program and disbursements from the mercury reduction, education and management fund.

5 New Subparagraph; Application of Receipts; General Revenue Exceptions; Mercury Reduction, Education, and Management Fund. Amend RSA 6:12, I by inserting after subparagraph (iiii) the following new subparagraph:

(jjjj) Moneys received under RSA 149-M:64, which shall be credited to the mercury reduction, education, and management fund established under RSA 149-M:65.

6 Public Education and Outreach. Amend RSA 149-M:55, I to read as follows:

I. The department shall implement a public education, outreach, and assistance program for households, hazardous waste generators, local and regional solid waste management agencies, dismantlers, institutions, and schools on the hazards of mercury, the requirements and obligations of individuals, manufacturers, and agencies under this subdivision, and voluntary efforts that individuals, institutions, and businesses can undertake to help further reduce mercury in the environment. The department shall cooperate with and seek assistance from manufacturers of mercury-added products and other affected businesses in the development and implementation of public education and technical assistance programs. Any direct financial assistance received will be deposited in the mercury reduction, education, and management fund.

7 Applicability. Section 5 of this act shall become effective upon the collection of the advance disposal fee pursuant to RSA 149-M:63 and the deposit of such sums into the mercury reduction, education, and management fund pursuant to RSA 149-M:65.

8 Effective Date. This act shall take effect 60 days after its passage.

LBAO

01-0192

3/16/01

HB 675 FISCAL NOTE

FISCAL IMPACT:

METHODOLOGY: