By Laura Hart
I. LDEQ Recently Issued Proposed Rule Pursuant to Louisiana Mercury Risk Reduction Act to Reduce Use of Mercury-Containing Products and to Force Proper Disposal or Recycling of Mercury-Containing Products
In the August 2008 publication of the Louisiana Register, the Louisiana Department of Environmental Quality (“LDEQ”) issued a proposed rule that will supplement the procedures and requirements set forth in the Louisiana Mercury Risk Reduction Act (La. R.S. 30:2571–2588) for manufacturers of mercury-added products offered for sale, users of mercury-added products in drinking water and wastewater treatment systems, and dismantlers of end-of-life productions that contain mercury-added products within Louisiana (hereinafter “Proposed Rule”). See, La. Admin. Code Tit. 33, §§ 2701, 2703, 2705, 2707, 2709, 2711, 2713, 2715, 2717, 2719, and 2721 (2008). The Proposed Rule was published after the LDEQ’s consideration of numerous comments received in response to a rule published by the LDEQ in the December 2007 Potpourri Section of the Louisiana Register.
The Louisiana Mercury Risk Reduction Act was enacted in June 2006. The law was the first of its kind and provided the LDEQ with the authority to regulate mercury-added products and also gave the LDEQ the authority to handle unregulated mercury sources. The stated intent of the Louisiana Mercury Risk Reduction Act was to “achieve significant reductions in environmental mercury by encouraging the establishment of effective state and local waste reduction, recycling, and management programs while encouraging non-mercury alternatives.” La. R.S. 30:2571(C).
II. Provisions of the Proposed Rule
A. Notification of LDEQ by Manufacturer of Sale or Distribution of Mercury-Containing Products
The Proposed Rule maintains the requirement that no mercury-added products are to be offered for final sale or use or distributed for promotional purposes in Louisiana without prior written notification by the manufacturer to the LDEQ and establishes the specific requirements a manufacturer must follow for such notification. La. Admin. Code Tit. 33, §2707(C). The notification procedures in the Proposed Rule do not vary from the requirements set forth in La. R.S. 30:2574(A). Id. A noteworthy change made in the Proposed Rule is the establishment of a 90-day deadline for a manufacturer to update and revise the information in the notification whenever a change in the information occurs or when otherwise requested by the LDEQ. La. Admin. Code Tit. 33, §2707(C). In addition, the Proposed Rule maintains a manufacturer’s right to request that certain information submitted in response to the notification procedures contained in the Proposed Rule remain confidential. La. Admin. Code Tit. 33, §2707(D).
The Louisiana Mercury Risk Reduction Act at Section 2575 (A) – (D) restricted the sale, use, or distribution of certain mercury-added products, which is generally defined as “a product, commodity, chemical, or a product with a component that contains mercury or a mercury-compound intentionally added to the product, commodity, chemical, or component in order to provide a specific characteristic, appearance, or quality or to perform a specific function or for any other reasons.” La. R.S. 30:2573(A)(4). The specific mercury-added products restricted by the Louisiana Mercury Risk Reduction Act at Section 2575 (A) – (D) were: (A) mercury-added novelties (defined as “a mercury-added product intended mainly for personal or household enjoyment or adornment . . . include[ing], but 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, including footwear, or similar products.”); (B) mercury fever thermometers provided to consumers and patients without prescriptions; (C) bulk elemental or chemical mercury for primary or secondary schools; and (D) mercury dairy or natural gas monometers. La. R.S. 30:2575 (A)-(D).
The Proposed Rule sets forth specific notification procedures for manufacturers that produce and sell the particular types of mercury-added products to notify retailers about the restrictions on the sale of those items at La. Admin. Code Tit. 33, §2709(B). Further, the Proposed Rule requires the manufacturers of such mercury-added products to maintain records that document the notification of the retailers. See, La. Admin. Code Tit. 33, §2709(C).
B. Exemptions to Phase-Out Provisions for Sale or Distribution of Mercury-Containing Products
The Proposed Rule also sets forth a procedure whereby a manufacturer of a mercury-added product subject to the phase-out provisions of La. R.S. 30:2576 can petition the LDEQ for an exemption. The phase-out provisions in La. R.S. 30:2576 allow manufacturers of mercury-added products to apply to the LDEQ for an exemption from the limits on total mercury content set forth in subsection (A) of the statute for a product or category of products. See, La. R.S. 30:2576(E). The authority of the LDEQ to grant exemptions to the mercury phase-out provisions of the Louisiana Mercury Risk Reduction Act is described, in pertinent part, as follows:
The Department of Environmental Quality may grant with modifications or conditions as an exemption for a product or category of products if it finds that a system exists for the proper collection, transportation, and processing of the mercury-added product. Such a system may include direct return of a waste product to the manufacturer or an industry or trade group that supports a collection or recycling system, or other similar private and public sector efforts and it considers each of the following criteria:
(1) Use of the product is beneficial to the environment or protective of public health or protective of public safety.
(2) There is no technically feasible alternative to the use of mercury in the product.
(3) There is no comparable non-mercury-added product available at reasonable cost.
La. R.S. 30: 2576(F). Under the Proposed Rule, La. Admin. Code Tit. 33, §2711(B), the following information must be provided in each application for an exemption from the phase-out provisions of the Louisiana Mercury Risk Reduction Act.
Applications for exemption from mercury-added product phase-out must contain the following information:
1. documentation of the basis for the requested exemption or renewal of exemption;
2. a description of how the manufacturer will ensure that a system exists for the proper collection, transportation and processing of the products at the end of their useful lives;
3. documentation of the readiness of all necessary parties to perform as intended in the planned system;
4. a statement of the consistency of the exemption request with the practices of other IMERC states;
5. criteria considering whether use of the product is beneficial to the environment or protective of public health or protective of public safety, and if so, how;
6. criteria considering whether there exist any technically feasible alternatives to the use of mercury in the product, and, if so, a description of such alternatives; and
7. criteria considering whether any comparable non-mercury added products are available at a reasonable cost, and if so, a description of such products and their costs.
Procedurally, once a manufacturer has made an application for an exemption from the phase-out provisions of the Louisiana Mercury Risk Reduction Act then the LDEQ has 180 days from the date of the application to decide whether to grant the exemption. La. Admin. Code Tit. 33, §2711(E). A longer time period for deciding on whether to grant the application for exemption can be taken if there is mutual consent of the LDEQ and the applicant. Id. Once an exemption is granted, it may be renewed by reapplication by the manufacturer and findings by the LDEQ of continued eligibility. La. Admin. Code Tit. 33, §2711(F). Such renewal can occur one or more times, but each renewal is limited to a period of no longer than two years. Id.
C. Labeling Requirements for Sale or Distribution of Mercury-Added Products
The Proposed Rule maintains the requirement that manufacturers, and not wholesalers or retailers, are responsible for assuring that mercury-added products are labeled correctly. La. Admin. Code Tit. 33, §2713(A). See also, La. R.S. 30:2577. The Proposed Rule requires that the labels affixed to mercury-added products must:
(1) be clearly visible to the product purchaser prior to sale and at the point of sale;
(2) be printed in English using a 10 point font or larger;
(3) be mounted, engraved, molded, embossed, or otherwise affixed to the product using materials that are sufficiently durable to remain legible throughout the life of the product;
(4) bear the wording “Contains Mercury” or equivalent wording; and
(5) state that the product cannot be placed in the trash and must be recycled, handled as a universal waste, or disposed of as a hazardous waste.
La. Admin. Code Tit. 33, §2713(C).
Labeling of Products Where Packaging Covers Label on the Product
Additionally, if a product is sold in packaging that covers the label on the product itself, the Proposed Rule requires:
(1) that the packaging itself be labeled, and
(2) that the label on the package:
(a) be visible at the time of purchase;
(b) bear the wording “Contains Mercury” in a 10 point or larger font;
(c) identify the mercury-added component within the package;
(d) bear the wording “Dispose of according to local, state, and federal laws.” or “Do not place in trash. Dispose of as a hazardous waste.” or some equivalent wording.
La. Admin. Code Tit. 33, §2713(F).
Products Made Before Labeling Requirements Effective
If a manufacturer has products that are packaged but not sold before the labeling requirements go into effect, the manufacturer can seek an exemption from the labeling requirements. See, La. Admin. Code Tit. 33, §2713.
Labeling Requirements for Internet, Catalog, and Telephone Sales
What is more, where a mercury-added product is sold on the internet, through a catalog, or by telephone and the labeling on the product or the package is not visible, the consumer must be made aware before the purchase or receipt that there is mercury in the product by placing a label or providing other information in the sales literature. La. Admin. Code Tit. 33, §2713(G).
Labeling of Mercury-Added Products That Are Component Parts of Another Product
Furthermore, the Proposed Rule continues to require that where the mercury-added product is a component part of another product, that both the product containing the mercury-added component and the component itself have to be labeled. La. Admin. Code Tit. 33, §2713(E).
D. Alternative Labeling
Alternative labeling can be allowed pursuant to La. R.S. 30: 2579. According to the Proposed Rule, a manufacturer seeking to be allowed to use the alternative labeling must apply to the LDEQ. La. Admin. Code Tit. 33, §2715(B). The application for alternative labeling must contain the following information:
(1) documentation of the justification for the requested alternative, which can include claims that compliance with the labeling requirements in the Louisiana Mercury Risk Reduction Act is not feasible or that federal law preempts the state labeling requirements;
(2) a description of how the alternative labeling ensures that consumers of mercury-added products will be made aware of the mercury content prior to the purchase or receipt of the product;
(3) a description of how a person disposing of the product will be made aware of the need for proper disposal;
(4) documentation of the readiness of all necessary parties to implement the proposed alternative; and
(5) a description of the performance measures to be used by the manufacturer to prove that the alternative labeling is providing effective pre-sale notification and pre-disposal notification.
La. Admin. Code Tit. 33, §2715(B).
If alternative labeling is approved, the approval is valid for a period of no more than two years and can be renewed for following two-year intervals, with such renewal applications being due six months before the renewal anniversary date. La. Admin. Code Tit. 33, §2715(C),(D).
E. Written Plan for Collection System Indicating Disposal or Recycling Method Required to Be Submitted by Manufacturer to Allow for Sale or Distribution of Mercury-Added Products in Louisiana
If any manufacturer wants to offer any mercury-added products for sale in Louisiana that contain more than 10 milligrams of mercury, the manufacturer must submit a written collection system to the LDEQ. La. Admin. Code Tit. 33, §2717. The proposed collection system shall include the following information:
(1) the manufacturer’s name, mailing address, and if available, Internet address;
(2) the contact person’s name and phone number;
(3) documentation describing a public education program, including implementation dates, that will inform the public about the purpose of the collection system program and how to participate in it;
(4) identification of the targeted capture rate for the mercury-added product, product category, or component;
(5) a plan for implementation of the proposed collection system, including documentation demonstrating the financing thereof;
(6) documentation of the willingness of all necessary parties to implement and participate in the program, and their contact information;
(7) a description of the performance measures to be used to demonstrate that the collection system is meeting capture rate targets;
(8) 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;
(9) a description of a recycling or disposal plan;
(10) a signed certification stating that the person signing:
(a) has personally examined and is familiar with the information submitted within the collection system plan and all attachments; and
(b) is authorized to sign the certification by the entity on whose behalf he is signing.
La. Admin. Code Tit. 33, §2717(C).
Actions Required by Manufacturer Upon Implementation of Approved Collection System Plan
Within one year after the LDEQ has approved a collection system plan, the manufacturer or entity that submitted the plan for the manufacturer must “ensure that a convenient and accessible recovery system . . . is in full operation.” La. Admin. Code Tit. 33, §2715(D). Furthermore, two years after the collection plan is implemented, and every two years thereafter, the manufacturer or entity that submitted the plan for the manufacturer must “submit a report on the effectiveness of the collection system.” La. Admin. Code Tit. 33, §2715(D).
Exemptions to Development and Submission of Collection System Plan
Exemptions to the requirements for development and submission of collection system plans are allowed for mercury-added products that are “intended to be totally consumed in use, such as cosmetics, pharmaceuticals, and reagents and other laboratory chemicals. . . .” La. Admin. Code Tit. 33, §2715(E).
Furthermore, a manufacturer can apply for an exemption for the requirement of the development and submission of a collection system plan by submitting an application to the LDEQ that contains, at minimum, the following information:
(1) the amount of mercury in the mercury-added product;
(2) the total amount of the mercury-added product sold in Louisiana;
(3) the total amount of the mercury-added product disposed of in Louisiana;
(4) the feasibility of a collection system; and
(5) the overall risk to human health and the environment posed by the mercury-added product.
La. Admin. Code Tit. 33, §2715(F). Such an exemption shall be granted by the LDEQ within 180 days from the submission of the application for the exemption, unless a longer time is mutually agreed upon by the applicant and the LDEQ. La. Admin. Code Tit. 33, §2715(G). Exemptions from the development and submission of a collection plan may be renewed by reapplication by the manufacturer one or more times and each renewal may be for a period of no longer than two years. La. Admin. Code Tit. 33, §2715(H).
F. Specific Rules for Scrap Metal Facilities
The Proposed Rule at La. Admin. Code Tit. 33, §2719 provides specific rules and regulations for the disposal ban and proper management of mercury in scrap metal facilities. The Proposed Rule bans any person from crushing, baling, shearing, or shredding a motor vehicle “unless the person has made a reasonable effort, to the extent safe and practicable, to remove, or verify the removal of, the mercury-containing convenience lighting switches and antilock braking system components.” La. Admin. Code Tit. 33, §2719(B). The person removing or verifying the removal of the mercury-containing components will be required to maintain a written certification of the removal or the verification of the removal of the mercury. La. Admin. Code Tit. 33, §2719(B). Any person who receives the crushed, baled, sheared, or shredded motor vehicle scrap must also obtain the certification that the scrap had any mercury containing convenience lighting or braking systems removed and also are required to conduct a visual examination that the mercury-containing components had been removed. La. Admin. Code Tit. 33, §2715(C).
The Proposed Rule also bans any person from crushing, baling, shearing, or shredding appliances or white goods containing mercury-containing switches or other mercury-added products unless the person made an effort to verify that the mercury-containing components had been removed. La. Admin. Code Tit. 33, §2719(D). Verification of removal of mercury-added products in the white goods would be accomplished by the adoption of a best management practice governing mercury-added products in white goods and maintenance of written certification of the screening and removal of mercury-added products by the person removing or verifying the removal of the product. La. Admin. Code Tit. 33, §2719(D). Any person who receives the crushed, baled, sheared, or shredded white goods must also obtain the certification that the appliances had any mercury-containing products removed and also are required to conduct a visual examination that the mercury-containing components had been removed. La. Admin. Code Tit. 33, §2715(E).
G. Best Management Practices [“BMP”] for Health Care Facilities
In accordance with La. R.S. 30:2583, the Proposed Order establishes the BMP for Health Care Facilities using a mercury-added product. See, La. Admin. Code Tit. 33, §2721. The key provisions of the BMP for Health Care Facilities require any health care facility using a mercury-added product, a formulated mercury-added product, or a fabricated mercury-added product to:
(1) Maintain a MSDS on any elemental mercury used. La. Admin. Code Tit. 33, §2721(A).
(2) Certify that its employees or other persons acting under its direction or control:
(i) will use the mercury only for medical, dental, research, or manufacturing purposes;
(ii) will store, use, and handle mercury in accordance with Subsection C of the Section, understanding that mercury is toxic; and
(iii) will dispose of the mercury-added products in accordance with Subsections C or F of this Section. La. Admin. Code Tit. 33, §2721(B).
(3) Develop, maintain, and follow a Mercury Management Plan (MMP) that is designed to eliminate or capture mercury in waste. La. Admin. Code Tit. 33, §2721(C).
Certain minimum requirements for the MMP are set forth therein and include: having an inventory of mercury-containing devices; a timeline for reduction and eventual elimination of mercury-containing equipment; safe mercury management/handling protocols; discarding and recycling of mercury-containing items and maintenance of records of the disposal and/or recycling at the facility for three (3) years and specific disposal requirements for the facilities receiving the disposed items; safe and proper management and storage of mercury-containing devices in leak-proof, sealed, labeled containers that will not allow transmission of mercury vapors; establishment of an environmental preferable purchasing policy (EPP) for mercury products and a process to regularly review mercury use reduction and elimination progress; and any other aspects of the BMP developed by the American Hospital Association or the American Medical Association. La. Admin. Code Tit. 33, §2721(C).
Additionally, the Proposed Rule set forth the minimum standards for a health care facility’s Dental Amalgam Management Plan that is required to be developed, maintained and complied with by any health care facility using dental amalgam. La. Admin. Code Tit. 33, §2721(D). The purpose of the Dental Amalgam Management Plan is to capture mercury in dental amalgam waste and excess. La. Admin. Code Tit. 33, §2721(D).
III. Public Hearing Date and Written Comment Deadlines
The public hearing on the Proposed Rule is scheduled for September 25, 2008 and written comments on the Proposed Rule are due by October 2, 2008.