HOUSE BILL REPORT

ESSB 5543

As Reported by House Committee On:

Environmental Health

Title: An act relating to mercury reduction.

Brief Description: Reducing the release of mercury into the environment.

Sponsors: Senate Committee on Environment, Water & Energy (originally sponsored by Senators Pridemore, Oemig, Rockefeller, Fairley, Murray, Kline, Keiser, Shin, Regala, Franklin, McAuliffe, Fraser, Ranker and Kohl-Welles).

Brief History:

Committee Activity:

Environmental Health: 2/17/10 [DPA].

Majority Report: Do pass as amended. Signed by 9 members: Representatives Campbell, Chair; Chase, Vice Chair; Shea, Ranking Minority Member; Orcutt, Assistant Ranking Minority Member; Dickerson, Dunshee, Finn, Hudgins and Rolfes.

Staff: Pam Madson (786-7111).

Background:

Mercury is a persistent, bioaccumulative toxin that can damage the human central nervous and cardiovascular systems and cause environmental harm.

In 2003 the Legislature prohibited mercury components in a number of consumer products. The law requires labeling of fluorescent lamps to indicate the presence of mercury and to inform purchasers on the proper disposal of the product.

The Department of Ecology's (DOE) Chemical Action Plan for mercury identified that a significant amount of mercury released into the environment comes from the disposal of products including fluorescent light tubes that are improperly discarded.

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Summary of Amended Bill:

Effective January 1, 2013, all users must recycle mercury-containing lights. Mercury-containing lights may not be disposed of in waste incinerators or landfills. Mercury-containing lights may be recycled under certain circumstances. Solid waste facilities or collectors are not subject to violations if mercury-containing lights are recycled or disposed of as solid waste under this prohibition.

All producers of mercury-containing lights sold in or into Washington for residential use must participate in a product stewardship program by January 1, 2013.

The DOE must contract with a product stewardship organization to operate a mercury-containing lights recycling program. Producers must participate in the program or may participate in an independent program approved by the DOE.

Producers must pay all costs of administration and operation of a product stewardship program except for curbside collection programs and mail-back programs. Producers must pay for the transportation to and processing of mercury-containing lights but not the collection activity for curbside and mail-back programs.

Producers must finance the implementation of a product stewardship program and agency costs for administering and enforcing the law. The amount producers must pay to the DOE is $15,000, $10,000 of which is used to cover the cost of the product stewardship program and $5,000 to pay the DOE's costs to administer and enforce the product stewardship law. Producers solely involved in the retail sales of mercury-containing lights are not considered producers and are not subject to the responsibilities of producers. These funds are deposited into the Product Stewardship Programs Account.

Product stewardship programs must collect mercury-containing lights from residential households or persons who deliver 15 or fewer lights to a registered collector or a registered mail-back program but may not charge consumers a fee at the collection point.

Mercury-containing lights may not be sold or offered for sale unless the producer of the lights participates in a product stewardship program.

Product stewardship programs must provide collection services to all counties and to all cities with a population greater than 10,000. Producer participants must recover their fair share of unwanted mercury-containing lights as determined by the DOE.

Collectors of mercury-containing lights participating in a product stewardship program must:

• register with the DOE and provide certain information about collection activities;

• maintain a spill and release response plan at the collection location (except mail-back);

• maintain a worker safety plan at the collection location (except mail-back); and

• use packaging and shipping material that minimizes breakage and release of mercury into the environment. Shipping through the U.S. Postal Service or a common carrier will require mercury vapor barrier packaging.

Product stewardship plans for mercury-containing lights from producers not participating in the state-contracted program must be submitted to the DOE by January 1, 2012, and approved by the DOE for implementation by January 1, 2013. The elements of the plan are determined by rule adopted by the DOE. The following elements are required:

• general information about the plan participants and the management of the product stewardship organization;

• a collection system including consideration given to existing residential curbside programs and mail-back programs;

• a disposal system including information about the status of facilities and the handling of hazardous substances;

• how existing businesses in the state will be used to implement the plan;

• a financing system used by the product stewardship program; and

• education and outreach activities to encourage and evaluate the use of the program.

Plans must be updated at least two years after the start of the product stewardship program and every four years subsequently. Plans must be reviewed and approved by the DOE.

Product stewardship programs must report annually on implementation of the product stewardship program. Reports will be available to the public.

Enforcement with respect to producers begins with written warnings prior to imposing any monetary penalty. Penalties include:

• Failure to participate in a product stewardship program. After a warning, the DOE may impose a penalty of up to $10,000 per day of light sales.

• Failure to implement its plan. A producer who fails to implement its approved plan must receive a penalty, after a warning, of $5,000. If the plan is not implemented in 30 days, the producer receives a penalty of $10,000. Each subsequent 30-day period of non-compliance is another violation.

• Additional violations. Failure to submit a plan, update or change a plan when required, or submit an annual report, after a warning, will result in a $10,000 penalty per day of violation.

Penalties are reduced by 50 percent if the producer complies within 30 days of the second violation notice. Producers may appeal penalties to the Pollution Control Hearings Board.

Product wholesalers, distributors, and retailers who sell products from producers who are not participating in a product stewardship program are subject to violations and penalties after a warning. Sales of used products are not subject to penalties under certain circumstances. In-state retailers may use inventory that is on hand when restrictions on sale go into effect.

The DOE may adopt rules and performance standards and may establish administrative penalties for failure to meet performance standards. Beginning October 1, 2014, the DOE must evaluate the impact of the product stewardship program on the availability of energy efficient lighting and on the availability of non mercury-containing energy efficient lighting. The DOE must also calculate an annual recycling rate and what portion of the rate is attributable to the product stewardship programs beginning October 31, 2013. The DOE may also evaluate mercury vapor barrier packaging and restrict its use if necessary. The DOE must report to the appropriate committees of the Legislature on the status of the product stewardship programs and any recommendations for change to the laws governing product stewardship programs each year by December 31, beginning in 2010 and continuing through 2014.

By June 30, 2012, the sale or purchase of bulk mercury is prohibited. This prohibition does not apply to dangerous waste recycling facilities or treatment, storage, and disposal facilities approved by the DOE.

Amended Bill Compared to Engrossed Substitute Bill:

The striking amendment does the following: (1) adds the statewide requirement to recycle mercury-containing lights by January 1, 2013, and prohibits disposal of mercury-containing lights in waste incinerators or landfills; (2) provides that solid waste facilities or collectors are not subject to violation if these lights are recycled or disposed of as solid waste under this prohibition; (3) removes the authority of the DOE to adopt rules allowing a product stewardship organization to adjust fees paid by producers to implement the program and administer and enforce the law on mercury-containing lights; and (4) corrects references and removes unnecessary language.

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Appropriation: None.

Fiscal Note: Requested on February 15, 2010.

Effective Date of Amended Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed.

Staff Summary of Public Testimony:

(In support) This bill will get a statewide recycling program for compact fluorescent lights and florescent tubes available in our state. Tens of millions of these lamps are being sold, creating hundreds of pounds of mercury. Getting a program started now is important. The producer responsibility approach will create a cost-effective system for recycling this product. It provides that no-cost recycling will be available statewide. There are strong environmental and health standards and the DOE will get feedback on satisfaction with the program from users. Much work has been done on this issue.

(In support with amendments) All stakeholders worked on this bill and the striking amendment. The proposal strikes a good balance between a producer-funded program and using those services are currently available and having the DOE contract with an organization to run the program using the funding mechanism that is provided. This may not be perfect but it is a good start and should move forward.

(With concerns) The striking amendment contains a requirement to recycle all lamps by a certain date. There is concern about mercury vapor barrier packaging as a type of packaging offered by a certain company. An alternative is to use performance standards or refer to effectively containing mercury in transit.

(Neutral) There is some concern that the funding mechanism will not produce enough revenue to cover the cost of the program; however, there is an opportunity for the DOE to report to the Legislature annually through the first year of operation of the program. This will show how the bill is being implemented and if resources are available.

(Opposed) None.

Persons Testifying: (In support) Margaret Shield, Local Hazardous Waste Management Program in King County; and Brad Boswell, Waste Management.

(In support with amendments) Charlie Brown, National Electrical Manufacturers Association.

(With concerns) Craig Lorch, Ecolights Northwest.

(Neutral) Jay Shepard, Department of Ecology.

Persons Signed In To Testify But Not Testifying: None.