S-3025

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

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

NEW SECTION. Sec. 1. The legislature finds and declares that:

(1) Mercury is a persistent and toxic pollutant that bioaccumulates in the environment.

(2) Consumption of mercury-contaminated fish poses a significant public health threat.

(3) Mercury is a potent neurotoxin and exposure to it can cause severe damage to a developing fetus. Mercury negatively impacts the nervous system and can lead to blindness, deafness, behavioral problems, and death.

(4) Mercury is present in a variety of products that are used in this state and is emitted from many industrial sources that are located in Washington.

(5) The state department of ecology has released a plan to reduce and eliminate persistent bioaccumulative toxics in the state, including mercury.

(6) Numerous states, including California, Oregon, Vermont, New Hampshire, Maine, Michigan, Minnesota, and Rhode Island have passed legislation to restrict mercury pollution and many other states are considering similar legislation.

(7) Cost-effective and readily available alternatives exist for mercury-added products.

(8) The intent of this chapter is to achieve significant reductions in environmental mercury, improve public awareness of mercury pollution and proper disposal of mercury, and improve the collection, removal, and disposal of mercury products to improve public health and the environment.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

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

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

(3) "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.

(4) "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.

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

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

(7) "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.

(8) "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.

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

NEW SECTION. Sec. 3. (1) A manufacturer of a mercury-added product that is sold, offered for sale, or distributed in this state must ensure that the mercury-added product is 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 mercury-added product can be returned for recycling or disposed of as hazardous waste; or

(b) Identifying existing collection systems through which the used mercury-added product can be returned for recycling or disposed of as hazardous waste.

(2) Every manufacturer of mercury-added products 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. Where a mercury-added product is a component of another product, the collection system must provide for removal and collection of the mercury-added component or collection of both the mercury-added component and the product containing it. All collection and recycling systems are subject to department approval. As part of the approval process, the department must ensure that all Washington residents have access to mercury collection and recycling systems that are convenient, comprehensive, and cost-effective.

NEW SECTION. Sec. 4. (1) Every manufacturer of mercury-added products must ensure that the products are labeled in a manner to clearly inform purchasers: (a) That mercury is present in the item and that the item may not be disposed of or placed in a waste stream destined for disposal until the mercury is reused, recycled, or properly disposed of as a hazardous waste and does not become mixed with other solid waste or wastewater; and (b) of how to access systems for the collection, transportation, and recycling of mercury-added products. Where a mercury-added product is a component of another product, the product containing the component and the component itself must both be labeled. The label on the product containing a mercury-added component must identify the component with sufficient detail so that the component may be readily located for removal.

(2) A manufacturer may apply to the department for an alternative to the requirements of subsection (1) 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. Applications for an alternative to the requirements of subsection (1) 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 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 department may grant, deny, modify, or condition a request for an alternative to the requirements of subsection (1) of this section and approval of an alternative. The approval is for a period of up to two years and may, upon continued eligibility under the criteria of this section and compliance with the conditions of its prior approval, be renewed at two-year intervals.

(4) No person may sell, offer for sale, or distribute a mercury-added product, unless the product meets the labeling requirements of subsection (1) of this section. The labeling requirements of subsection (1) of this section do not apply to any mercury-added product for which federal law governs labeling in a manner that preempts state authority.

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) A person may not knowingly incinerate used mercury-added products.

(3) 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.

(4) 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 (4) does not apply to individuals disposing of mercury-added household products.

(5) A solid waste collector may not knowingly collect solid waste that contains one or more mercury-added products, unless the solid waste is collected at a permitted household hazardous waste collection facility for the purpose of recycling the waste.

(6) A solid waste collector must refuse to collect the contents of a solid waste container containing one or more mercury-added products, unless the solid waste is collected at a permitted household hazardous waste collection facility for the purpose of recycling the waste.

(7) An owner or operator of a solid waste management facility may not knowingly 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 solid waste. An owner or operator of a solid waste management facility must have appropriate notification and inspection procedures in place designed to prohibit mercury-added products from being disposed of at the facility. An owner or operator of a solid waste management facility must:

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

(b) Provide 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; and

(c) Implement a procedure approved by the department for periodically monitoring incoming wastes to detect the presence of mercury-added products at the solid waste management facility.

(8) An owner or operator of a solid waste management facility must refuse to accept for disposal the contents of a solid waste container containing one or more mercury-added products unless the waste is collected at a permitted household hazardous waste collection facility for the purpose of recycling solid waste.

(9) 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.

NEW SECTION. Sec. 6. (1) Except as provided under subsections (2) and (3) of this section, no person may sell, offer for sale, or distribute 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) 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 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 a thermometer that contains mercury. This subsection (2) does not apply to:

(i) An electronic thermometer with a 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 thermostat that contains mercury. A manufacturer of 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 thermostat inventory.

(4) No person may sell, offer for sale, or distribute a motor vehicle manufactured after January 1, 2003, if the motor vehicle contains a mercury switch, including mercury switches in antilock brake systems and in high intensity discharge lighting systems.

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

NEW SECTION. Sec. 8. No school may use or 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. No later than January 1, 2003, the department, in consultation with the Washington hospital association and other interested parties, must develop a mercury phase-out plan to reduce or eliminate the purchase and use of mercury-containing products at licensed health care facilities starting July 1, 2003. The plan must be fully implemented by December 31, 2005.

NEW SECTION. Sec. 10. (1) The department and the department of health must jointly 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 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 what products contain mercury 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) Notwithstanding other administrative rules, policies, and guidelines for the procurement of equipment, supplies, and other products, 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 there is no economically feasible nonmercury-added alternative that performs a similar function. 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 legislature 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 must adopt rules to implement and enforce this chapter.

NEW SECTION. Sec. 15. (1) Sections 1, 2, and 9 through 14 of this act take effect July 1, 2002.

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

NEW SECTION. Sec. 16. Sections 1 through 15 of this act constitute a new chapter in Title 70 RCW.