[atlas:bill]

AN ACT Relating to mercury reduction and education; adding a new chapter to Title 70 RCW; creating a new section; prescribing penalties; providing effective dates; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Automotive mercury switch" includes a convenience switch, such as a switch for a trunk or hood light, and a mercury switch in antilock brake systems.

(2) "Dental amalgam" means a mixture of mercury, and an alloy of silver, tin, and copper, used in dentistry.

(3) "Department" means the department of ecology.

(4) "Director" means the director of the department of ecology.

(5) "Health care facility" means a 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.

(6) "Manufacturer" means any person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces a mercury-added product or an importer or domestic distributor of a mercury-added product produced in a foreign country. In the case of a multicomponent product containing mercury, the manufacturer is the last manufacturer to produce or assemble the product. If the multicomponent product or mercury-added product is produced in a foreign country, the manufacturer is the importer or domestic distributor.

(7) "Mercury manometer" means a mercury-added product that is used for measuring blood pressure.

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

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

(10) "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, items of apparel, and other similar products.

(11) "Mercury-added product" means a product, commodity, or chemical, or a product with a component that contains mercury or a mercury compound intentionally added to the product, commodity, or chemical in order to provide a specific characteristic, appearance, or quality, or to perform a specific function, or for any other reason. Mercury‑added products include, but are not limited to, mercury thermometers, mercury thermostats, and mercury switches in motor vehicles.

(12) "Retailer" means a retailer of a mercury-added product.

NEW SECTION. Sec. 2. Nothing in this chapter applies to prescription drugs regulated by the food and drug administration under the federal food, drug, and cosmetic act (21 U.S.C. Sec. 301 et seq.), to biological products regulated by the food and drug administration under the public health service act (42 U.S.C. Sec. 262 et seq.), to any substance that may be lawfully sold over-the-counter without a prescription under the federal food, drug, and cosmetic act (21 U.S.C. Sec. 301 et seq.), or to dental amalgam.

NEW SECTION. Sec. 3. (1) No later than one year after the effective date of this section, every manufacturer of thermometers and commercial or residential, but not industrial, thermostats that contain mercury and that have been or may be offered for sale or distributed for sale or use in this state must ensure that these products are properly collected, transported, and recycled by doing one of the following:

(a) Establishing and funding, directly or with the help of a third party, a collection system through which the used products can be returned for recycling or disposed of as hazardous waste; or

(b) Identifying and funding existing collection systems through which the used products can be returned for recycling or disposed of as hazardous waste.

(2) Every manufacturer of mercury thermometers and commercial or residential thermostats containing mercury is financially responsible for the collection and recycling systems established under subsection (1) of this section. All collection and recycling must be conducted in a manner that prevents the release of mercury into the environment. All collection and recycling systems are subject to department approval.

(3) The collection system plan must include:

(a) A public education program to inform the public about the purpose of the collection program and how to participate in it;

(b) A targeted capture rate for products;

(d) Documentation of the willingness of all necessary parties to implement the proposed collection system;

(e) A description of performance measures to be utilized and reported by the manufacturer of thermometers and commercial or residential thermostats to demonstrate that the collection system is meeting rate targets and other measures of program effectiveness as required by the department; and

(f) 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.

NEW SECTION. Sec. 4. (1) No mercury-added product manufactured after the effective date of this section may be sold, offered for final sale, or distributed for sale or use in the state unless both the product and its packaging are labeled in accordance with this section and any adopted rules. This requirement may be met by compliance with the terms of any approved alternative labeling or notification granted under subsection (7) of this section. A retailer may not be found in violation of this subsection if the retailer lacked knowledge that the product contained mercury.

(2) If a mercury-added product is a component of another product, the product containing the component and the component must both be labeled. The label on a product containing a mercury-added component must identify the component with sufficient detail so that it may be readily located for removal.

(3) All labels must be clearly visible prior to sale, and must inform the purchaser, using words or symbols, that mercury is present in the product, and that the 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.

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

(5) Responsibility for product and package labels required under this section is on the manufacturer, and not on the wholesaler or retailer, unless the wholesaler or retailer agrees with the manufacturer to accept responsibility in conjunction with implementation of an alternative to the labeling requirements of this section, approved under subsection (7) or (8) of this section. In the case of a multicomponent product, 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 must ensure that the manufacturer has complied with this section before sale, use, or distribution of the products in this state. This importer requirement does not apply to retailers for whom importing is not their primary business.

(6) Any mercury-added product for which federal law governs labeling in a manner that preempts state authority is exempt from the requirements of this section.

(7) Alternative methods of public notification are as follows:

(a) A manufacturer may apply to the department for an alternative to the requirements of subsections (1) through (6) and (8) of this section where: Strict compliance with the requirements is not feasible; or the proposed alternative would be at least as effective in providing presale notification of mercury content and in providing instructions on proper disposal; or federal law governs labeling in a manner that preempts state authority. The department may approve an alternative concerning a certain product category without application by manufacturers, but must consider other alternatives for the category, upon application.

(b) Applications for an alternative to the requirements of subsections (1) through (6) and (8) of this section must:

(i) Document the justification for the requested alternative;

(ii) Describe how the alternative ensures that purchasers or recipients of mercury-added products are made aware of mercury content prior to purchase or receipt;

(iii) Describe how a person discarding the product will be made aware of the need for proper handling to ensure that it does not become part of solid waste or wastewater;

(iv) Document the readiness of all necessary parties to implement the proposed alternative; and

(v) Describe the performance measures to be utilized by the manufacturer to demonstrate that the alternative is providing effective presale notification and predisposal notification.

(c) The department may grant, deny, or approve with modifications or conditions a request for an alternative to the requirements of subsections (1) through (6) and (8) of this section. Such an approval of an alternative shall be for an indefinite period of no less than two years. The department may review alternatives and modify or condition a previously approved alternative, after providing notice to the affected parties. Modifications must be implemented according to a mutually agreeable time frame that may not exceed two years. Prior to approving an alternative, the department must consult with neighboring states, provinces, and regional organizations to ensure that its labeling requirements are consistent with those of other governments in the region.

(8) The following alternative methods of public notification for specific products are approved, and no further department approval is required:

(a) Labeling of white goods sold in a store where the white goods are on display meets all requirements of subsections (1) through (6) of this section, except that no package labeling is required.

(b) Labeling of fever and laboratory thermometers must meet all requirements of subsections (1) through (6) of this section, except that no product labeling is required.

(c) Labeling of all new motor vehicles must meet all the requirements of subsections (1) through (6) of this section, except that the mercury-added components are not required to be labeled. A doorpost label applied by the manufacturer must list the mercury-added components that may be present on the vehicle. Only in the case of a dealer trade of a new vehicle with a dealer in another state is the motor vehicle dealer responsible for applying the doorpost label to the vehicle to be offered for sale in this state. No labeling of used motor vehicles is required.

(d) Labeling of mercury-added button cell batteries must meet all requirements of subsections (1) through (6) of this section, except no labeling is required on the product. Labeling of products that contain a mercury-added button cell battery as the only mercury-added component must include in the product instructions, if any, and on the product packaging the information required in subsection (3) of this section.

(e) Labeling of consumer electronics that incorporate one or more mercury-added lamps as their only mercury-added component or components must meet all the requirements of subsection (1) through (6) of this section, except no labeling of an internal lamp or the package is required.

(9) The department may adopt rules to implement this section. The rules may include a requirement to submit for approval a certified labeling plan that describes the product and all aspects of its proposed labeling. The department must make efforts to ensure consistency, when practicable and appropriate, with the labeling requirements that are in use in other states.

(10) The department must work with manufacturers to ensure that compliance with this section is achieved in a manner that considers the cost and feasibility of implementation.

(11) Commercial aircraft and aerospace components are exempt from the requirements of this section.

NEW SECTION. Sec. 5. (1) A person may not knowingly dispose of mercury-added products in any manner other than by recycling the product or disposing of the product as hazardous waste.

(2) When a mercury-added product is removed from service, the mercury in the item must be source-separated for reuse or recycling, stabilized for retirement, or otherwise managed to prevent its release into the environment.

(3) A person may not knowingly send a multicomponent product containing a mercury-added product, that has been intentionally flattened, crushed, or baled, to a scrap processor, as defined in RCW 46.79.010, for recycling without first removing the mercury-added product. A scrap processor may accept a multicomponent product, knowing it contains a mercury-added product, if the processor takes responsibility for removing the mercury-added product. This subsection (3) does not apply to individuals disposing of mercury-added household products.

(4) A person engaging in solid waste handling, including solid waste storage, collection, transportation, treatment, utilization, processing, incineration, and final disposal of solid wastes, may not knowingly collect or accept for disposal solid waste that contains one or more mercury-added products, unless the waste is collected at a permitted household hazardous waste collection facility for the purpose of recycling the household hazardous waste. A solid waste collector or transporter will not be deemed to have knowingly accepted mercury-added products if the solid waste collector or transporter has provided notification to customers that it is illegal to dispose of mercury-added products in solid waste containers, and if no mercury-added products are clearly visible and easily identifiable in the container. A solid waste treatment, processing, incineration, or disposal facility will not be deemed to have knowingly accepted a mercury-added product for processing or disposal if the facility has implemented the following:

(a) Posted signs at the solid waste management facility providing notice of the prohibition of the disposal and incineration of mercury-added products; and

(b) Provided written notification to or have contractual agreements with the solid waste management facility's customers, providing notice of the prohibition of the disposal and incineration of mercury-added products.

(5) For the purposes of this section a person acts knowingly when:

(a) The person is aware of a fact, facts, or circumstances or result described by a statute defining a prohibited act; or

(b) The person has information that would lead a reasonable person in the same situation to believe that the existing facts are the facts described by a statute defining a prohibited act.

(6) A manufacturer of thermometers or commercial or residential thermostats that has complied with the requirements of section 3 of this act is not liable for improper disposal of those products by purchasers or consumers.

(7) Every two years the department must make available to the public information concerning the amount of mercury diverted from the solid waste stream that would otherwise be sent to solid waste management facilities for disposal or incineration.

(8) Those persons involved in the recycling, dismantling, or hulk hauling of motor vehicles are exempt from this section. The department shall assemble an advisory committee of parties concerned with and involved in the recycling and waste disposal of motor vehicles to make recommendations on the reduction and removal of mercury components from the waste stream caused by the scrapping and dismantling of motor vehicles. With the help of the advisory committee, the department shall prepare recommendations to the legislature on how mercury components may be reduced or eliminated from motor vehicle scrap, how this will occur, and at what stage of the vehicle's life, as well as the liable parties. The department's recommendations shall be presented to the legislature no later than January 1, 2004.

NEW SECTION. Sec. 6. (1) Except as provided under subsections (2) through (4) of this section, no person may sell, offer for sale, distribute for sale or use in this state a mercury-added product unless the manufacturer of the product, or its industry trade group, provides notice to the director in writing of the manufacturer's intent to sell, offer for sale, or distribute the product. The notification must include: (a) A description of the product to be offered for sale, use, or distribution; (b) the amount of and purpose for mercury in each unit of the product; (c) the total amount of mercury contained in all products manufactured by the manufacturer; and (d) the name and address of the manufacturer and of a contact. The manufacturer must update and revise the information provided in each notification whenever there is significant change in the information or when requested by the director. The director may by rule define and adopt specific requirements for the content and submission of the notification.

(2) With the approval of the director, the manufacturer may supply the notice required under subsection (1) of this section for a product category rather than an individual product.

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

(4) Commercial aircraft and aerospace components are exempt from the requirements of this section.

(5) The director must review the information received under subsection (1) of this section and must ensure that the information is available for public inspection upon request.

NEW SECTION. Sec. 7. (1) No person may sell, offer for sale, or distribute for sale or use in this state a mercury-added novelty. A manufacturer of mercury-added novelties must notify all retailers that sell the product about the provisions of this section and how to properly dispose of any remaining mercury-added novelty inventory.

(2)(a) No person may sell, offer for sale, or distribute for sale or use in this state a thermometer that contains mercury. This subsection (2) does not apply to:

(i) An electronic thermometer with a button cell battery containing mercury if the battery is in compliance with section 3 of this act;

(ii) A thermometer that contains mercury and that is used for food research and development or food processing, including meat, dairy products, and pet food processing;

(iii) A thermometer that contains mercury and that is a component of an animal agriculture climate control system or industrial measurement system until such a time as the system is replaced or a nonmercury component for the system is available; and

(iv) A thermometer that contains mercury that is used for calibration of other thermometers, apparatus, or equipment, unless a nonmercury calibration standard is approved for the application by the national institute of standards and technology.

(b) A manufacturer of thermometers that contain mercury must notify all retailers that sell the product about the provisions of this section and how to properly dispose of any remaining thermometer inventory.

(3) No person may sell, install, or reinstall a commercial or residential thermostat that contains mercury. A manufacturer of commercial or residential thermostats that contain mercury must notify all retailers that sell the product about the provisions of this section and how to properly dispose of any remaining commercial or residential thermostat inventory.

(4) No person may sell, offer for sale, or distribute for sale or use in this state a motor vehicle manufactured after January 1, 2006, if the motor vehicle contains an automotive mercury switch.

(5) A health care facility may not purchase mercury manometers.

NEW SECTION. Sec. 8. No school may purchase for use in a primary or secondary classroom bulk elemental or chemical mercury or bulk mercury compounds. Manufacturers that produce and sell bulk elemental or chemical mercury or mercury compounds must notify retailers and schools about the provisions of this section and how to dispose of the remaining inventory properly.

NEW SECTION. Sec. 9. (1) No later than January 1, 2003, the department, in consultation with the Washington hospital association and other interested and affected parties, must develop the following plans for mercury purchase and use at health care facilities:

(a) A mercury elimination plan for thermometers, thermostats, manometers, and other mercury-added products for which alternatives are available; and

(b) A mercury reduction plan for lab reagents, lights, batteries, and other mercury-added products for which alternatives are not available.

(2) For the purposes of this section, "health care facility" does not include a clinic, physician's office, dentist's office, veterinarian's office, or a clinic, physician's office, or dentist's office located within a health maintenance organization.

NEW SECTION. Sec. 10. (1) The department must develop a plan and proposed budget for a comprehensive public education, outreach, and assistance program for households, hazardous waste generators, municipalities, solid waste management districts, small businesses, health care facilities, scrap metal facilities, dismantlers, institutions of higher education, schools, and other interested groups. The plan must: (a) Focus on the hazards of mercury, particularly those associated with the consumption of mercury-contaminated 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; (b) include a mechanism for providing information to retailers, wholesalers, and the public on which products are mercury-added products and information on possible nonmercury alternatives; (c) include a description of how manufacturers of mercury-added products and other affected businesses will be involved in the development and implementation of a public education and technical assistance program; (d) describe how the program will assist the municipalities and solid waste management districts in developing, designing, and disseminating information for the public about labeled mercury-added products, the requirements of section 3 of this act regarding the source separation of waste mercury-added products, and the collection programs that are available to the public under section 3 of this act; and (e) describe how the program will 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 products. The plan and proposed budget must be submitted to the governor and the legislature by January 1, 2003.

(2) The department 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 entities that go beyond the minimum requirements established under this chapter and excel at reducing or eliminating mercury in air emissions, solid waste, and wastewater discharges.

NEW SECTION. Sec. 11. (1) The department of general administration must, by July 1, 2003, revise its rules, policies, and guidelines to implement the purpose of this chapter.

(2) The department of general administration must give priority and preference to the purchase of equipment, supplies, and other products that contain no mercury-added compounds or components, unless: (a) There is no economically feasible nonmercury-added alternative that performs a similar function; or (b) the product containing mercury is designed to reduce electricity consumption by at least forty percent and there is no nonmercury or lower mercury alternative available that saves the same or a greater amount of electricity as the exempted product. In circumstances where a nonmercury-added product is not available, preference must be given to the purchase of products that contain the least amount of mercury added to the product necessary for the required performance and that are not prohibited from sale or distribution under section 6 of this act.

NEW SECTION. Sec. 12. The department must review the effectiveness of this chapter and provide a report based upon that review to the governor and the appropriate legislative committees by December 1, 2006. The report must review the effectiveness of the programs required under this chapter and recommend ways to improve the programs.

NEW SECTION. Sec. 13. A violation of this chapter or any rule adopted under this chapter is punishable by a civil penalty not to exceed one thousand dollars for each violation in the case of a first violation. Repeat violators are liable for a civil penalty not to exceed five thousand dollars for each repeat violation. Penalties collected under this section must be deposited in the state toxics control account created under RCW 70.105D.070.

NEW SECTION. Sec. 14. The department is authorized to participate in a regional or multistate clearinghouse to assist in carrying out any of the requirements of this chapter. A clearinghouse may also be used for coordinating notification and label requirements, developing education and outreach activities, and maintaining a list of all mercury-added products, including mercury-added products and novelties that may be subject to the product ban contained in section 7 of this act.

NEW SECTION. Sec. 15. The department must adopt rules to implement and enforce this chapter.

NEW SECTION. Sec. 16. (1) The department must develop a planned strategy for the elimination of mercury from the environment. This strategy will be known as the mercury chemical action plan. The development of the mercury chemical action plan will be a model for how all future chemical action plans will be developed.

(2) The mercury chemical action plan must include, but is not limited to: (a) Identifying current mercury uses in Washington; (b) analyzing current state and federal laws, regulations, rules, and voluntary measures that can be used to reduce or eliminate mercury; (c) identifying mercury reduction and elimination options; and (d) implementing actions to reduce or eliminate mercury uses and releases.

(3) In developing the mercury chemical action plan, the department must involve an advisory committee not to exceed twelve members composed of adequate and balanced representation of local government, business, agriculture, and environmental, public health, and community groups. In addition, the department must invite and strongly encourage any interested tribes or federal agencies to participate in the advisory committee process. The advisory committee must be involved in the development of the mercury chemical action plan. All information that will serve as the basis for any decisions in the mercury chemical action plan's development must be available to the advisory committee members. The advisory committee has sixty days to provide input to the department on the elements of the mercury chemical action plan. The comments and suggestions made by the advisory committee must be considered by the department; however, consensus of the advisory committee is not necessary for the department to move forward in the development of the mercury chemical action plan. All meetings of the advisory committee are subject to the provisions of chapter 42.30 RCW. The advisory committee for the mercury chemical action plan must be established by April 15, 2002.

(4) By June 30, 2002, the department must develop and issue a draft mercury chemical action plan in consultation with the advisory committee. Following the release of the draft plan, the department must allow for a sixty-day public comment period. The department must reconvene the advisory committee following the comment period to consider the public comments received.

(5) The final mercury chemical action plan, developed after considering the public comments and the input of the advisory committee, must outline actions for the department to take, including, but not limited to the development of any rules that are within the department's authority and recommending any legislation.

(6) The mercury chemical action plan must be finalized by December 1, 2002, and implementation must begin no later than January 1, 2003.

NEW SECTION. Sec. 17. Any fiscal impact on the department of ecology that results from the implementation of this act shall be paid for out of existing funds previously appropriated out of the state toxics control account for the implementation of the department's persistent, bioaccumulative toxic chemical strategy.

NEW SECTION. Sec. 18. (1) Sections 1, 2, and 9 through 15 of this act take effect July 1, 2002.

(2) Sections 3 through 8 of this act take effect January 1, 2003.

(3) Section 16 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION. Sec. 19. Sections 1 through 16 and 18 of this act constitute a new chapter in Title 70 RCW.