§ 7101. Legislative findings
The general assembly finds and declares that:
(1) Mercury is a persistent and toxic pollutant that bioaccumulates in the environment and poses a serious threat to humans, particularly young children and the developing fetus, and wildlife.
(2) Recent EPA research concludes that 16 percent of American women of childbearing age have unsafe mercury blood levels, and that the annual number of newborn infants at risk in the United States is 630,000.
(3) The primary means of human exposure to mercury is the consumption of contaminated fish and shellfish.
(4) Vermont and all other northeastern states have issued statewide fish consumption mercury contamination advisories that recommend limiting or avoiding the consumption of certain freshwater fish caught locally.
(5) While the Vermont departments of environmental conservation, fish and wildlife, and health have undertaken a long-term collaboration to monitor and report on fish tissue mercury in Vermont waters, most lakes and streams remain untested. Of the 560 lakes and ponds tracked by the department of environmental conservation, only 60 of the largest have been monitored for fish mercury. For inland lakes, this corresponds to 51 percent of the lake acreage in Vermont. Only 22 river or stream sites have been tested for fish mercury. This current monitoring approach is not designed to track changes in fish mercury over time in response to management actions and does not address mercury impacts on fish-eating wildlife.
(6) The U.S. Food and Drug Administration and the Vermont department of health recommend limiting the consumption of certain commercial saltwater fish, including canned tuna.
(7) Human exposure to mercury can result in nervous system, kidney, and liver damage and impaired childhood development.
(8) There has been a threefold increase in mercury loading to the environment over the past 150 years. Much of the mercury deposited from the atmosphere is from human and natural sources, but anthropogenic emissions exceed those that occur naturally.
(9) More than one-half of the mercury deposition is from out-of-region sources, with the largest being coal-burning power plants (utility boilers) and industrial boilers.
(10) While mercury-added switches have been eliminated from currently manufactured U.S. and foreign manufactured motor vehicles, mercury-added switches are still prevalent in end-of-life motor vehicles previously manufactured. Collection programs for these vehicle switches at end-of-life of the vehicle have proven to be a feasible method to reduce a significant source of mercury release to the region.
(11) Implementation of the 1998 New England Governors and Eastern Canadian Premiers Mercury Action Plan has led to a decrease in regional mercury emissions of more than 55 percent-primarily due to emissions controls on municipal combustors and medical waste incinerators, both of which burn discarded mercury-added products.
(12) The New England Governors and Eastern Canadian Premiers have set an interim goal in the Mercury Action Plan of 75 percent reduction in anthropogenic emissions by 2010. Achieving this goal will require further reduction measures from in-region combustion sources such as power plants, industrial and commercial boilers, and sewage sludge incinerators, and will require reducing mercury releases that occur through disposal and breakage of products that contain mercury.
(13) Many of the states in the region, including Connecticut, Maine, New York, and Rhode Island, have adopted comprehensive mercury-added product legislation to identify and eliminate unnecessary uses of mercury.
(14) Significant use of mercury-added products occurs in health care facilities, schools, and dental practices, in all of which mercury use or release reduction is technically and economically feasible.
(15) The Mercury Task Force of the Conference of New England Governors and Eastern Canadian Premiers adopted a goal to reduce dental wastewater discharges of mercury by having 50 percent of dentists install amalgam separators in each state or jurisdiction by the end of 2005.
(16) In 1998, the Vermont general assembly passed legislation requiring labeling of mercury-added products and banned the disposal of these labeled products in landfills. The agency and municipal solid waste districts implemented numerous mercury education and reduction programs to reduce mercury use in products and to collect spent mercury-added products for proper recycling and disposal. Public education is essential to reducing improper disposal of spent mercury-added products.
(17) Vermont's mercury product legislation passed in 1998 does not comprehensively restrict the sale and use of mercury-added products.
(18) Studies conducted for the state of Maine show that mercury-free alternatives exist for a majority of the thousands of products containing mercury components. These products include thermometers, thermostats, flow meters, barometers, manometers, medical devices, and electrical switches and relays.
(19) Studies conducted for the state of Maine show that manufacturers are beginning to market mercury-free versions of all types of mercury-added button cell and other miniature batteries.
(20) Novelty products using mercury have been banned from sale in several states.
(21) Citizens of Vermont, the Vermont environment, and the agency will benefit from comprehensive mercury product legislation that further reduces mercury emissions and is consistent with model mercury product legislation developed jointly by the northeast states. (Added 2005, No. 13, § 1.)
§ 7102. Definitions
As used in this chapter:
(1) "Agency" means the Vermont agency of natural resources.
(2) "Elemental mercury" means the chemical symbol Hg. Elemental Hg is a silvery-white liquid (at room temperature) with an atomic number of 80 and an atomic mass of 200.57.
(3) "Fabricated mercury-added product" means a product that consists of a combination of individual components that combine to make a single unit, including mercury-added measuring devices, lamps, and switches.
(4) "Formulated mercury-added product" means a product that is sold as a consistent mixture of chemicals to which mercury or a mercury compound has been intentionally added in order to provide a specific characteristic, appearance, or quality, or to perform a specific function, or for any other reason. This includes laboratory chemicals, cleaning products, cosmetics, pharmaceuticals, and coating materials. For the purposes of this chapter, formulated mercury-added product does not include 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 U.S.C. §§ 301 et seq. "Biological product" means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product or an analogous product, or asphenamine (a derivative of arsphenamine) or any other trivalent organic arsenic compound used for the prevent
ion, treatment, or cure of a disease or condition of human beings.
(5) "Large appliance" includes the following items: refrigerators, washing machines, clothes dryers, ranges, water heaters, dishwashers, freezers, microwave ovens, air conditioners, portable heaters, and other similar domestic and commercial appliances as may be identified by the agency by rule.
(6)(A) "Manufacturer" means any person, firm, association, partnership, corporation, governmental entity, organization, combination, or joint venture that (i) produces a mercury-added product, or (ii) serves as an importer or domestic distributor of a mercury-added product produced outside the United States.
(B) This definition shall not apply to retailers for whom importing is not their primary business.
(C) In the case of a multi-component mercury-added product, the manufacturer is the last manufacturer to produce or assemble the product.
(D) In the case of mercury-containing thermostats, the manufacturer is the original equipment manufacturer.
(7) "Mercury-added component" means a mercury-added product that is incorporated into another product to form a fabricated mercury-added product, including electrical switches, relays, and lamps.
(8) "Mercury-added novelty" means a mercury-added product intended mainly for personal or household enjoyment or adornment. Mercury-added novelties include items intended for use as practical jokes, figurines, adornments, toys, games, cards, ornaments, yard statues and figures, candles, jewelry, holiday decorations, items of apparel (including footwear), and similar products.
(9) "Mercury-added product" means a product, a commodity, a chemical, a product with one or more components, or a product that cannot function without the use of that 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.
(10) "Mercury fever thermometer" means a mercury-added product that is used for measuring body temperature. This does not include a fever thermometer with a mercury-added button cell battery.
(11) "Motor vehicle" means a vehicle propelled by an internal combustion engine or an electric motor, such as an automobile, van, truck, motorized construction equipment, motorized recreational vehicle, motorcycle, or forklift.
(12) "End-of-life motor vehicle" means a motor vehicle that has not been intentionally flattened, crushed, shredded, or baled if sold, given, or otherwise conveyed to a motor vehicle recycler or scrap metal recycling facility for the purpose of recycling.
(13) "Mercury-added vehicle switch" means a capsule, commonly known as a bullet, containing mercury, that is part of a convenience light switch assembly for motor vehicle trunks and hoods or is part of the anti-lock brake system.
(14) "Motor vehicle recycler" means an individual or entity engaged in the business of acquiring, dismantling, parts recycling, or destroying six or more end-of-life motor vehicles in a year.
(15) "Scrap metal recycling facility" means a facility at a fixed location that uses equipment to process and refabricate scrap metal into prepared grades and principally produces scrap iron, steel, or nonferrous metallic scrap for sale.
(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-conditioning 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.
(17) "Person" means any individual, corporation, partnership, cooperative, association, firm, sole proprietorship, governmental agency, or other entity.
(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.
(19) "Thermostat wholesaler" means a person that is engaged in the distribution and wholesale sale of heating, ventilation, and air-conditioning components to contractors who install heating, ventilation, and air-conditioning components. (Added 2005, No. 13, § 1; amended 2005, No. 117 (Adj. Sess.), § 1; 2007, No. 149 (Adj. Sess.), § 2.)
§ 7103. Multistate clearinghouse
The agency is authorized to participate in the establishment and implementation of a regional, multistate clearinghouse to assist in carrying out the requirements of this chapter, to coordinate state review of manufacturer notification under section 7104 of this title, applications for alternative product labeling under section 7106 of this title, exemption requests from product sale restrictions under section 7105 of this title, education and outreach activities, and to coordinate any other activities related to the administration of this chapter. Notwithstanding 1 V.S.A. § 317, the agency may provide the multistate clearinghouse with product information submitted to the department under section 7104 of this title, and the agency and the multistate 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. (Added 2005, No. 13, § 1.)
§ 7104. Notification
(a) Effective July 1, 2006, no mercury-added product may be offered for final sale, sold at a final sale, or distributed in Vermont, unless the manufacturer or its designated industrial trade group gives prior notification in writing to the agency or the multistate clearinghouse described in section 7103 of this chapter, as provided in this section. This notification, in a form approved by the agency, at a minimum shall include:
(1) A brief description of the product or category of products to be offered for sale or distributed;
(2) The purpose for which mercury is used in each individual product or category of products;
(3) The amount of mercury in each unit of the product or product component, reported as an exact number or as falling within a range approved by the agency;
(4) The name and address of the manufacturer, or manufacturers, and the name, address, and telephone number of a contact person for the manufacturer; and
(5) The total amount of mercury in all units of the product or product components sold in the United States during the most recent calendar year for which sales figures are available, reported either for the units or components sold by the manufacturer or as aggregated by a manufacturer trade association for all units of the product or components made by the industry.
(b) With the approval of the agency or multistate clearinghouse, the manufacturer may supply the information required in this section for a product category rather than an individual product. The manufacturer or its designated industrial trade group shall revise the information in the notification whenever there is a significant change in the information or when requested by the agency or the multistate clearinghouse. The information required under subdivision (a)(5) of this section must be updated and provided to the agency or multistate clearinghouse every three years on a date established through the multistate clearinghouse.
(d) The requirements of this section do not apply to drugs approved by the United States Food and Drug Administration or to any mercury-added product for which federal law governs notice in a manner that preempts state authority.
(e) Public disclosure of any business information submitted to the agency pursuant to this section shall be governed by the requirements of 1 V.S.A. § 317. Notwithstanding the provisions of 1 V.S.A. § 317, the agency may provide the multistate clearinghouse with copies of that information, and the agency, in consultation with the clearinghouse, may compile or publish analyses or summaries of that information, provided the analyses or summaries do not identify any manufacturer or reveal any confidential information. (Added 2005, No. 13, § 1; amended 2005, No. 117 (Adj. Sess.), § 2.)
§ 7105. Restrictions on the sale and use of certain mercury-added products
(a) Novelties. After July 1, 2006, no mercury-added novelty may be offered for sale, sold at final sale, or distributed in Vermont. This ban on sale or distribution shall not apply to a novelty incorporating one or more button cell batteries, or one or more mercury-added lamps, as its only mercury-added components. Manufacturers that produce and sell mercury-added novelties must notify retailers about the provisions of this product ban and how to return the remaining inventory to the manufacturer.
(b) Thermometers and thermostats. After July 1, 2006, no mercury fever thermometer or mercury-containing thermostat for the control of space heating or cooling may be offered for final sale, sold at final sale, or distributed in Vermont.
(c) Dairy manometers. After January 1, 2006, no mercury dairy manometer may be offered for final sale, sold at a final sale, or distributed in Vermont, with the exception of a mercury dairy manometer purchased by a licensed dairy service provider to calibrate customers' manometers and other milking equipment. The agency of agriculture, food and markets will notify dairy service providers of this product ban, and how to dispose properly of remaining inventory. The Vermont agency of agriculture, food and markets and Vermont solid waste districts and municipalities will continue their education, outreach, and assistance programs for dairy farms, focusing on the hazards of mercury, and encouraging dairy farmers to replace their mercury-containing manometers with mercury-free alternatives in an effort to help further reduce mercury in the environment.
(d) Elemental mercury.
(1) Effective July 1, 2006, no person may sell or provide elemental mercury to another person in Vermont, except for recycling or disposal purposes, without providing a "material safety data sheet," as defined in 42 U.S.C. § 11049, and requiring the purchaser or recipient to sign a statement that the purchaser:
(A) Will use the mercury only for medical, manufacturing, or research purposes;
(B) Understands that mercury is toxic, and the purchaser or recipient will store and use it appropriately so that no person is exposed to the mercury; and
(C) Will not place the mercury in solid waste for disposal or in a wastewater treatment and disposal system, and will not allow anyone under the purchaser's or recipient's control to place or cause mercury to be placed in such a location.
(2) Effective July 1, 2006, no person may purchase elemental mercury from someone outside the state of Vermont for use in Vermont without a certified statement from the purchaser provided to the agency, certifying that the conditions specified in subdivision (1) of this subsection, if applicable, have been met. These conditions shall not apply to the sale or provision of elemental mercury for manufacturing, recycling, or disposal purposes.
(e)(1) Instruments, measuring devices, and neon signs. Effective January 1, 2007, none of the following mercury-added products may be offered for final sale, sold at a final sale, or distributed in Vermont as a new manufactured product:
(A) A barometer;
(B) An esophageal dilator, bougie tube, or gastrointestinal tube;
(C) A flow meter;
(D) A hydrometer;
(E) A hygrometer or psychrometer;
(F) A manometer other than a manometer prohibited from sale under subsection (c) of this section;
(G) A pyrometer;
(H) A sphygmomanometer;
(I) A thermometer that contains elemental mercury, other than a mercury fever thermometer;
(J) A mercury-added neon type sign.
(2) This prohibition does not apply to the sale of a mercury-added product listed in subdivisions (1)(A)-(J) of this subsection if use of the product is a federal requirement, or if the only mercury-added component of the product is a button cell battery. This prohibition does not apply to the sale of mercury-added lamps when used in semiconductor manufacturing and other manufacturing operations.
(f) Mercury switches and relays. Effective January 1, 2007, no mercury switch or mercury relay, individually or as a product component, may be offered for final sale, sold at a final sale, or distributed in Vermont as a new manufactured product. This subsection does not apply to the sale of a mercury switch or mercury relay if the manufacturer provides satisfactory documentation that the use of the switch or relay is a federal requirement.
(g) Exclusion for existing equipment. The prohibitions in subsections (e) and (f) of this section do not apply if the switch, relay, or measuring device is used to replace a switch, relay, or measuring device which is a component of a larger product in use prior to January 1, 2007, provided the owner of that equipment has made every reasonable effort to determine that no compatible nonmercury replacement component exists.
(h)(1) Exemptions. A manufacturer of a mercury-added switch, relay, or measuring device may apply to the agency and notify the multistate clearinghouse for an exemption from the sales ban in subsections (e) and (f) of this section, provided that exemption shall be for not more than five years. With agency approval, an agent of the manufacturer, who may be a user, may apply for an exemption.
(2) The manufacturer or agent of the manufacturer seeking an exemption to offer for sale, sell, or distribute a switch, relay, or measuring device in Vermont after January 1, 2007 shall apply for the exemption not later than March 1, 2006. Exemption applications for new types of switches, relays, or measuring devices developed and intended to begin initial sale or distribution after January 1, 2007 must be received at least nine months prior to the intended offer for sale, the sale, or the distribution in Vermont.
(3) Application for the exemption or exemption renewal shall be on a form and be supported by the information and materials required by the agency. The exemption application shall document the basis for the requested exemption or renewal of exemption and describe how the manufacturer will ensure that a system exists for the proper collection, transportation, and processing of the switches, relays, or measuring devices at the end of their useful life.
(4) The agency may grant an exemption with or without conditions upon findings that:
(A) A system exists for the proper collection, transportation, and processing of the product at the end of its life, including 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
(B) One of the following applies:
(i) Use of the product provides a net benefit to the environment, public health, or public safety when compared to available nonmercury alternatives; or
(ii) Technically feasible alternatives are not available at reasonable cost.
(C) With respect to renewals of an exemption, in addition to subdivisions (A) and (B) of this subdivision (4), reasonable efforts have been made to remove mercury from the product.
(5) Prior to issuing an exemption or conditional exemption, the agency may consult with the multistate clearinghouse and other states to promote consistency in the implementation of this section.
(6) The agency may renew, for a period not longer than five years, an exemption or conditional exemption one or more times if the manufacturer applies for renewal, and the agency finds that the manufacturer meets the requirements for that exemption, and that the manufacturer has complied with all the conditions of the original approval. With agency approval, an agent of the manufacturer may apply for the exemption renewal. (Added 2005, No. 13, § 1; amended 2005, No. 117 (Adj. Sess.), § 3; 2007, No. 63, § 2.)
§ 7106. Labeling of mercury-added products
(a) No mercury-added product may be offered for final sale, sold at a final sale, or distributed in Vermont after July 1, 2007, unless both the product and its packaging are labeled in accordance with this section. This requirement also may be met by compliance with the terms of any approved alternative labeling method granted under subsection (h) or (i) of this section. A retailer may not be found in violation of this subsection if the retailer lacked knowledge that the product contained mercury.
(b) This section shall not apply to mercury-added button cell batteries, products containing mercury-added button cell batteries, photographic film, or the packaging of these products.
(c) If a mercury-added component is part of another product, the product containing the component, the component, and the product package must be labeled. The label on a product containing a mercury-added component shall identify the component with sufficient detail so that it may be readily located for removal.
(d) All labels must be legible and must clearly inform the purchaser or consumer, using words or symbols, in a minimum of 10 point font type, that mercury is present in the product and clearly specify that the mercury-added product should not be disposed of or placed in a waste stream destined for disposal 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. Component, product, and package labels must be placed such that they are clearly visible. A label must also be visible prior to sale.
(e) Labels affixed to the product or any component shall be constructed of materials that are sufficiently durable to remain legible for the useful life of the product.
(f) Responsibility for product and package labels required under this section shall be on the manufacturer. In the case of a multi-component product in which a mercury-added component is included, the responsible manufacturer is the last manufacturer to produce or assemble the product. In the case of a mercury-added product imported from a foreign country, the importer shall assure the manufacturer has complied with this section before the offering for final sale or distribution of the product in Vermont.
(g) Any mercury-added product for which federal law governs labeling in a manner that preempts state authority shall be exempt from the requirements of this section. This section shall not apply to prescription drugs or any substance that may lawfully be sold over the counter without a prescription under the federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq.
(h) Alternative methods of labeling are as follows:
(1)(A) A manufacturer may apply to the agency or the multistate clearinghouse for an alternative to the requirements of subsections (a) through (f) and (i) of this section where:
(i) strict compliance with the requirements is not feasible as determined by the agency;
(ii) the proposed alternative would be at least as effective in providing presale notification of mercury content;
(iii) the proposed alternative would be at least as effective in providing instructions on proper disposal; or
(iv) federal law governs labeling in a manner that preempts state authority.
(B) The agency may approve an alternative concerning a certain product category without application by manufacturers, but the agency must consider other alternatives for the category upon application by a manufacturer for the use of an unapproved alternative.
(2) Applications for an alternative to the requirements of subsections (a) through (f) and (i) of this section must:
(A) Document the justification for the requested alternative;
(B) Describe how the alternative ensures that purchasers or recipients of mercury-added products are made aware of mercury content prior to purchase or receipt;
(C) Describe how a person discarding the mercury-added product will be made aware of the need for proper handling to ensure that it does not become part of solid waste or wastewater;
(D) Document the readiness of all necessary parties to implement the proposed alternative; and
(E) Describe the performance measures to be utilized by the manufacturer to demonstrate that the alternative is providing effective presale notification and predisposal notification.
(3) The agency may grant, deny, or approve with modifications or conditions a request for an alternative to the requirements of subsections (a) through (f) and (i) of this section. This approval of an alternative shall be for a period, specified by the agency, of no less than two years. The agency may review alternatives and modify or condition a previously approved alternative after providing notice to the affected parties. Modifications shall be implemented within a time frame approved by the agency, which shall not exceed two years. Requests for renewals shall be submitted 90 days before the expiration of the approval. Prior to approving an alternative, the agency may consult with states, provinces, and regional organizations to review consistency with other states that have similar legislation.
(4) Alternatives that authorize font sizes less than 10-point type that have been approved by the agency prior to the effective date of this chapter shall remain in effect until July 1, 2015.
(i) The following alternative methods of labeling for specific products are approved, and no further agency approval is required:
(1) Labeling of a large appliance sold in a store where that appliance is on display shall meet all requirements of subsections (a) through (f) of this section, except that no package labeling is required.
(2) Labeling of all new motor vehicles shall meet all the requirements of subsections (a) through (f) of this section, except that the mercury-added components are not required to be labeled. A driver's side doorpost label applied by the manufacturer shall list the mercury-added components that may be present on the vehicle. Only in the case of a trade of a new vehicle by a dealer with a dealer in another state shall the motor vehicle dealer be responsible for applying the doorpost label to the vehicle. No labeling of used motor vehicles shall be required. For motor vehicles without doorposts, label placement will be subject to the approval of the agency.
(3)(A) Labeling of products that contain, as their only mercury-added components, one or more lamps not intended to be replaceable by the user or consumer that are used for one or more of the purposes enumerated in this subdivision shall meet all the requirements of subsections (a) through (f) of this section, except no label is required on the internal lamp, no label is required on the package, and no label is required to be visible prior to purchase. A label must be included in the care and use manual or in the event that no care and use manual is produced for the product, the product instructions.
(i) Lamp purposes subject to this subdivision shall be:
(II) liquid crystal display (LCD) panel;
(III) scanning images; or
(IV) copying images.
(ii) This subdivision (A) shall apply to products containing lamps used for other purposes, if those products are approved under subsection (h) of this section, except that there need not be compliance in this instance with the requirement established in subdivision (h)(1)(A)(ii), regarding the effectiveness of the proposed alternative.
(B) Labeling of products with a screen or LCD panel less than seven inches on the diagonal that contain, as their only mercury-added components, one or more lamps not intended to be replaceable by the user or consumer that are used for backlighting shall meet all the requirements of subsections (a) through (c) of this section by placing the label on the product or in the care and use manual or in the event that no care and use manual is produced for the product, the product instructions. No label is required on the internal lamp, and no label shall be required to be visible prior to purchase.
(C) Labeling of a product that contains as its only mercury-added components a lamp or lamps at least one of which is intended to be replaceable by the user or consumer must meet the labeling requirements of subsections (a) through (f) of this section, except no label is required to be visible prior to purchase. A label must also be included in the care and use manual or in the event that no care and use manual is produced for the product, the product instructions. If the replaceable lamp is placed within a housing intended to be replaceable by the user or consumer, the housing must also be labeled.
(D) Labeling of replacement components for products in subdivision (A) or (B) of this subdivision (3) shall meet all the requirements of subsections (a) through (f) of this section by labeling the package on the replacement component.
(j) A manufacturer who offers for final sale, sells at a final sale, or distributes a product subject to the labeling requirements of this section shall certify to the secretary, on a form provided by the secretary, that the label conforms to the requirements of subsection (d) or (i) of this section. (Added 2005, No. 13, § 1; amended 2005, No. 117 (Adj. Sess.), § 4; 2007, No. 63, § 3, eff. June 4, 2007; 2009, No. 56, § 26.)
§ 7107. Discarded mercury-added products
(a) Management of discarded mercury-added products. After July 1, 2007, discarded mercury-added products, except for mercury-added button cell batteries, products containing mercury-added button cell batteries as their only mercury-added components, and photographic film shall be managed as provided in this section.
(1) Disposal ban. No person shall knowingly dispose of mercury-added products in a solid waste landfill or combustor.
(2) Source separation. Except as otherwise provided by this section, every person who discards solid waste shall separate mercury-added products from that solid waste for management as hazardous waste or universal hazardous waste, according to all applicable state and federal regulations. Any contractor who replaces or removes mercury-added products shall assure that any discarded mercury-added product is subject to proper separation and management as a hazardous waste or universal hazardous waste. Any contractor who replaces a mercury-containing thermostat from a building shall deliver the mercury-containing thermostat to an appropriate collection location for recycling.
(b) Solid waste transfer, combustion facility, and landfill facility requirements:
(1) Disposal ban. Effective July 1, 2007, the owner and operator of a solid waste landfill, transfer station, or combustion facility shall not knowingly accept for disposal mercury-added products.
(2) Notification of disposal ban. Effective July 1, 2007, solid waste transfer facilities, solid waste combustion facilities, and landfill facilities shall implement the following minimum mechanisms to notify the public and haulers of the disposal ban:
(A) Posting of clearly visible and easily read signs at the facility, providing notice of the prohibition of the disposal and combustion of mercury-added products; and
(B) Providing customers information about collection programs and facilities that are permitted to accept mercury-added products.
(c) Collection program.
(1) By December 1, 1998, every solid waste implementation plan of every solid waste management district or municipality having such a plan shall be amended to provide for:
(A) an informational effort to advise the public about labeled mercury-added products; and
(B) a collection program for the collection of mercury-added products identified in subsection (a) of this section.
(2) These amended plans shall be implemented by each solid waste management district or municipality by June 1, 1999. Components of these amended plans that are related to subdivisions (1)(A) and (B) of this subsection shall not be required to receive approval from the agency of natural resources.
(d) Removal of mercury-added components. The agency shall conduct a study and make recommendations for requirements to remove effectively and feasibly mercury-added components in products prior to disposal or recycling processes. This report shall identify removal and collection systems at public and private solid waste management facilities and salvage businesses, manufacturer-sponsored or operated collection and take-back programs; and other feasible programs. The agency will identify costs mechanisms for financing such programs. The study shall address removal and collection of mercury-added components in automobiles and the collection of switches, relays, and gauges in home appliances, heating devices, and other equipment. The agency shall report to the general assembly no later than January 15, 2006.
(e) Exemption for certain federally regulated products. If a formulated mercury-added product is a cosmetic or pharmaceutical product subject to the federal Food and Drug Administration's regulatory requirements relating to mercury, the product is exempt from the requirements of this section.
(f) Exemption for solidified latex paint. Formulated mercury-added latex paint solidified for disposal is exempt from the requirements of this section. (Added 2005, No. 13, § 1; amended 2005, No. 117 (Adj. Sess.), § 5; 2007, No. 149 (Adj. Sess.), § 3.)
[Section 7108 repealed effective December 31, 2017]
[Section 7108 repealed effective December 31, 2017]
§ 7108. Mercury-added motor vehicle components
(a) Applicability. This section applies to:
(1) a motor vehicle recycler or scrap metal recycling facility in the state; and
(2) a manufacturer of motor vehicles sold in this state.
(b) Mercury-added switch removal requirements. Effective January 1, 2007, a motor vehicle recycler that accepts end-of-life motor vehicles shall remove mercury-added vehicle switches prior to crushing, shredding, or other scrap metal processing and prior to conveying for crushing, shredding, or other scrap metal processing.
(1) Motor vehicle recyclers shall maintain a log sheet of switches removed from end-of-life motor vehicles and shall provide such log to the agency annually or upon request of the agency.
(2) Switches, including switches encased in light or brake assemblies, shall be collected, stored, transported, and handled in accordance with all applicable state and federal laws.
(c) Manufacturer mercury-added switch recovery program. No later than January 1, 2007, a manufacturer of vehicles sold in this state, individually or as part of a group, shall implement a mercury-added vehicle switch recovery program that includes the following:
(1) Educational material to assist motor vehicle recyclers in identifying mercury-added vehicle switches and safely removing, properly handling, and storing such switches;
(2) Storage containers provided at no cost to all motor vehicle recyclers identified by the agency, suitable for the safe storage of switches, including switches encased in light or brake assemblies;
(3) Collection, packaging, shipping, and recycling of mercury-added switches, including switches encased in light or brake assemblies, provided to all motor vehicles recyclers at no cost and that comply with all applicable state and federal regulations;
(4) A plan submitted by September 1, 2006 to the secretary of natural resources for approval that discusses how the manufacturer will implement subdivisions (1)-(3) of this subsection and shall not require removal of mercury-added vehicle switches from lighting or brake assemblies; and
(5) A report to the agency, on or before December 1, 2007, and each year thereafter, that includes the total number of mercury-added switches recovered in the program, the names of the motor vehicle recyclers and the number of switches removed from each, and the total amount of mercury collected during the previous 12-month period.
(d) Agency responsibility.
(1) The agency shall provide workshops and other training to motor vehicle recyclers to inform them of the requirements of this section.
(2) The agency may develop, by procedure, exemptions of certain mercury-added vehicle switches and other components from the requirements of this section, including mercury-added switches that are inaccessible due to motor vehicle damage and anti-lock brake switches in certain motor vehicle types which are difficult or labor-intensive to remove.
(3) [Deleted.] (Added 2005, No. 117 (Adj. Sess.), § 6; amended 2009, No. 33, § 32.)
§ 7109. Mercury in schools
After July 1, 2006, no school in Vermont may use, or purchase for use, in a primary or secondary nonvocational education program, any of the following: elemental mercury, chemicals containing mercury or mercury compounds, or mercury-added measuring devices. Other mercury-added products that are used by schools are not subject to this prohibition. No person shall bring elemental mercury onto the premises or into the buildings of schools located in Vermont, including child care facilities, preschools, kindergartens, and primary and secondary schools. (Added 2005, No. 13, § 1.)
§ 7110. Mercury-added products used in dental procedures
(a) Dental amalgam, a formulated mercury-added product, shall not be regulated by any other sections of this chapter.
(b) Vermont dental offices and vocational dental education programs shall use and instruct on the use of best management practices to minimize the presence of elemental mercury, unused amalgam, and waste amalgam in their wastewater discharge and in their solid waste. The agency shall develop best management practices that include a requirement for an amalgam removal efficiency of at least 95 percent. The required best management practices shall be defined by a procedure of the agency by January 1, 2006, including reporting requirements to verify compliance with best management practices. The agency shall consult with the Vermont state dental society and other interested parties during the development of best management practices. Dental offices shall comply with best management practices.
(c) No later than January 1, 2007, a dental office that in the course of treating its patients places or removes dental amalgam must install an amalgam separator system in the wastewater discharge line. For the purposes of this section, an amalgam separator system means a device that removes dental amalgam from the waste stream prior to discharge into either the local public wastewater system or a private septic system located at the dental facility and that has been certified as conforming to the standards of ISO 11143, Dental Equipment-Amalgam Separators. A dental office must demonstrate proper installation, operation, maintenance, and amalgam waste recycling or disposal in accordance with the manufacturer's recommendations by maintaining annual records on waste shipment and maintenance of the system and any other reporting required in subsection (b) of this section. Records of the previous three years shall be maintained at all times. Methods or technologies other than amalgam se
parators that achieve equivalent or greater dental amalgam discharge reductions and that are approved by the agency shall be deemed to comply with the requirements of this subsection.
(1) The following categories of dental offices are exempt from the requirement to install an amalgam separator:
(D) Oral and maxillofacial surgeons;
(E) A dental office that is scheduled to no longer be used as a dental office after July 1, 2007;
(F) Any other dental office that does not place or remove amalgam.
(2) A dental office in subdivision (1) of this subsection shall be exempt only if all dentists practicing at the site using a shared vacuum system qualify for an exemption.
(e) The agency shall conduct a survey of dental offices once every five years, beginning July 1, 2006, to ascertain the use of dental amalgam. The survey results shall be provided to the advisory committee on mercury pollution for inclusion in their report to the general assembly. The agency shall consult with the Vermont state dental society for assistance in conducting the survey.
(f) For the purposes of this section:
(1) "Dental amalgam" or "amalgam" means a mixture of mercury and silver alloy that forms a hard solid metal dental restorative material. For purposes of this section, dental amalgam or amalgam shall include mercury and silver alloy precapsulated and ready for mixing.
(2) "Dental office" means any dental clinic, dental office, or dental practice. (Added 2005, No. 13, § 1.)
§ 7111. Hospital mercury reduction plan
By July 1, 2006, each hospital in Vermont shall submit a mercury reduction plan to the agency, consistent with guidance provided by the agency. The plan will cover all patient care sites owned or operated by the hospital. The plan shall identify and quantify mercury use and disposal related to patient care, including equipment and chemicals to the extent known through mercury content information provided by manufacturers or maintained by the agency through labeling plans and notification. The plan will also set target mercury use reduction goals from the 2002 baseline year and will identify measures to be taken by the hospital to reduce mercury in patient care settings through reductions in use of equipment and chemicals containing mercury and through modifications in the hospital's purchasing policies and procedures with regard to products containing mercury. An updated plan shall be submitted on July 1, 2009 and each three years thereafter. The agency may exempt a hospital from fu
ture plan updates if the hospital has achieved greater than 95 percent reduction in mercury use from the baseline year and has demonstrated to the agency that written purchasing policies are in place to minimize or eliminate mercury use in products. (Added 2005, No. 13, § 1.)
§ 7112. Public education and outreach
(a) The agency and the department of health, in concert with other relevant state agencies, may implement a comprehensive public education, outreach, and assistance program for households, hazardous waste generators, municipalities, and solid waste management districts, small businesses, health care facilities, scrap metal facilities, dismantlers, institutions, schools, and other interested groups. These public education, outreach, and assistance programs should focus on the hazards of mercury, particularly those associated with the consumption of fresh and saltwater fish; the requirements and obligations of individuals, manufacturers, and agencies under this chapter; and voluntary efforts that individuals, institutions, and businesses can undertake to help further reduce mercury in the environment. These programs may also provide information to retailers, wholesalers, and the public on what products contain mercury, including those considered to be banned novelty items under sectio
n 7105 of this title; information on possible nonmercury alternatives; and information on products that do contain mercury, but may be environmentally beneficial. The agency shall cooperate with manufacturers of mercury-added products and other affected businesses in the development and implementation of any public education and technical assistance programs. The agency and the department of health may assist the municipalities and solid waste management districts in developing, designing, and disseminating information for the public about mercury-added products, the requirements of the law regarding the source separation of waste mercury-added products, and the collection programs that are available to the public, including any manufacturer-based reverse distribution system. A component of this information may be directed specifically at large public and private institutions that use and discard substantial numbers of waste mercury-added products and at any other large users of those
(b) The agency shall cooperate with neighboring states and provinces and regional organizations in the northeastern United States and Canada to develop any outreach, assistance, and education programs, where appropriate.
(c) The agency may develop an awards program to recognize the accomplishments of manufacturers, municipalities, solid waste management facilities, solid waste recycling facilities, household hazardous waste collection facilities, citizens, or others who go beyond the minimum requirements established under this chapter, and excel at reducing or eliminating mercury in air emissions, solid waste, and wastewater discharges. (Added 2005, No. 13, § 1.)
§ 7113. Repealed. 2011, No. 148 (Adj. Sess.), § 13.
§ 7114. Mercury planning
(a) The agency shall develop a plan and identify the necessary resources to accomplish the plan that would provide the necessary data to answer the following questions concerning mercury contamination of fish:
(1) Are fish contaminant levels changing with time and in response to management actions?
(2) Is there a baseline water-column concentration of mercury above which risks to humans and wildlife from mercury become unacceptable?
(b) The plan shall be developed in collaboration among the departments of environmental conservation, fish and wildlife, and health and be submitted to the general assembly not later than January 15, 2006. (Added 2005, No. 13, § 1.)
§ 7115. Rulemaking
The secretary of the agency of natural resources is authorized to adopt rules necessary to implement this chapter. (Added 2005, No. 13, § 1.)
§ 7116. 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 Vermont shall, individually or collectively:
(1) Not later than October 1, 2008 submit a plan to the agency for approval that describes a collection and financial incentive program for mercury thermostats. The program contained in this plan shall ensure that the following take place:
(A) that an effective education and outreach program shall be developed and shall be directed toward wholesalers, retailers, contractors, and homeowners. There shall be no cost to thermostat wholesalers or thermostat retailers for education and outreach materials.
(B) that handling and recycling of mercury-containing thermostats are accomplished in a manner that is consistent with the provisions of the universal waste rules adopted by the secretary.
(C) that containers for mercury-containing thermostat collection are provided to all thermostat wholesalers. The cost to thermostat wholesalers shall be limited to an initial, reasonable one-time fee per container as specified in the plan.
(D) that collection systems are provided to all collection points registered pursuant to subdivision (d)(3) of this section. Collection systems can include individual product mail back or multiple collection containers. The cost to registered collection points shall be limited to an initial, reasonable one-time fee per container as specified in the plan.
(E) that a financial incentive is established with a minimum value of $5.00 for the return of each mercury-containing thermostat to a thermostat wholesaler by a contractor or service technician. The financial incentive shall be in the form of cash or coupons that are redeemable by the contractor or service technician.
(F) that a financial incentive is established with a minimum value of $5.00 to homeowners or nonprofessionals for the return of each mercury-containing thermostat to a collection point registered with the agency. The financial incentive shall be in the form of cash or in the form of a coupon that can be redeemed for cash from the manufacturer or can be redeemed for a credit toward purchase of general merchandise in the retail location where the thermostat was returned.
(G) mechanisms to protect against the fraudulent return of thermostats are established.
(2) No later than April 1, 2009, implement a mercury thermostat collection plan approved by the secretary under subdivision (d)(1) of this section.
Subdivision (a)(3) repealed effective April 2, 2015; see note set out below.
(3) Beginning in 2010, submit an annual report to the secretary by April 1 of each year that includes, at a minimum, all of the following:
(A) The number of mercury-containing thermostats collected and recycled by that manufacturer pursuant to this section during the previous calendar year.
(B) The estimated total amount of mercury contained in the thermostat components collected by that manufacturer pursuant to this section.
(C) An evaluation of the effectiveness of the manufacturer's collection program and the financial incentive.
(D) An accounting of the administrative costs incurred in the course of administering the collection and recycling program and the financial incentive plan.
(b) Thermostat wholesaler and thermostat retailer responsibilities.
(1) By April 1, 2009, a thermostat wholesaler shall not offer for final sale, sell at final sale, or distribute thermostats unless the wholesaler:
(A) acts as a collection site for thermostats that contain mercury.
(B) promotes and utilizes the collection containers provided by thermostat manufacturers to facilitate a contractor collection program as established by subsection (a) of this section, and all other tasks as needed to establish and maintain a cost-effective manufacturer collection and financial incentive program.
(2) By April 1, 2009, a thermostat retailer shall not offer for final sale, sell, or distribute thermostats in the state unless the thermostat retailer participates in an education and outreach program to educate consumers on the collection program for mercury thermostats.
(c) Sales prohibition. Beginning April 1, 2009, the following sales prohibitions shall apply to manufacturers, thermostat wholesalers, and thermostat retailers:
(1) A manufacturer not in compliance with this section is prohibited from offering any thermostat for final sale in the state, selling any thermostat at final sale in the state, or distributing any thermostat in the state. A manufacturer not in compliance with this section shall provide the necessary support to thermostat wholesalers and thermostat retailers to ensure the manufacturer's thermostats are not offered for final sale, sold at final sale, or distributed in this state.
(2) A thermostat wholesaler or thermostat retailer shall not offer for final sale, sell at final sale, or distribute in this state any thermostat of a manufacturer that is not in compliance with this section.
(d) Agency responsibilities.
(1) Within 60 days of receipt of a complete application from a manufacturer, the agency shall review and may grant, deny, or approve with modifications a manufacturer plan required by subdivision (a)(1) of this section. The agency shall not approve a plan unless all elements of subdivision (a)(1) are adequately addressed. In reviewing a plan, the agency may consider consistency of the plan with collection and financial incentive requirements in other states and consider consistency between manufacturer collection programs. In reviewing plans, the agency shall ensure that education and outreach programs are uniform and consistent to ensure ease of implementation by thermostat wholesalers and thermostat retailers.
(2) The agency shall establish a process under which a plan submitted by a manufacturer is, prior to plan approval, available for public review and comment for 30 days. The agency shall consult with interested persons, including representatives from thermostat manufacturers, environmental groups, thermostat wholesalers, thermostat retailers, service contractors, municipalities, and solid waste districts.
(3) Registered collection points. The agency shall maintain and post on the agency of natural resources' website a list of municipalities, solid waste districts, and thermostat retailers who wish to register as collection points for mercury thermostats.
(4) Education and outreach. In conjunction with the educational and outreach programs implemented by manufacturers, the agency shall conduct an education and outreach program directed toward wholesalers, retailers, contractors, and homeowners to promote the collection of discarded mercury-containing thermostats.
(e) Rate of collection. By July 1, 2010, the agency shall estimate the number of out-of-service thermostats generated in Vermont on an annual basis, in consultation with interested persons, including representatives from thermostat manufacturers, thermostat wholesalers, thermostat retailers, service contractors, environmental groups, municipalities, and solid waste districts. Beginning July 1, 2011, should collection efforts fail to result in the collection and recycling of at least 65 percent of the out-of-service mercury-containing thermostats in the state, the agency shall, in consultation with interested persons, require modifications to manufacturers' collection plans in an attempt to improve collection rates in accordance with these goals. (Added 2007, No. 149 (Adj. Sess.), § 4; amended 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012.)