2003 -- H 5356

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LC01050

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2003

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A N A C T

RELATING TO HEALTH AND SAFETY

     Introduced By: Representatives Ginaitt, McNamara, Naughton, Handy, and S Anderson

     Date Introduced: January 30, 2003

     Referred To: Joint Environment & Energy

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 23 of the General Laws entitled "Health and Safety" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 24.10

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MERCURY-FREE VEHICLE ACT

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     23-24.10-1. Short title. – This chapter shall be known as the “Mercury-Free Vehicle

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Act.”

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     23-24.10-2. Findings. – The general assembly has found and hereby declares that:

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

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     (2) Forty-one (41) states including Rhode Island have issued fish advisories that warn

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certain individuals to restrict or avoid consuming fish from bodies of water contaminated with

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mercury. (U.S. Environmental Protection Agency, Fact Sheet – Update: National Listing of Fish

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and Wildlife Advisories, April 2001. (EPA-823-F-01-010));

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     (3) The U.S. Food and Drug Administration has advised pregnant women and women of

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childbearing age who may become pregnant not to eat shark, swordfish, king mackerel, and

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tilefish due to methyl mercury contamination. (U.S. Food and Drug Administration, “Updated

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Consumer Advisory – FDA Announces Advisory on Methyl Mercury in Fish,” March 2001.);

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     (4) According to National Research Council estimates, over sixty thousand (60,000)

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babies are born annually at risk for adverse neurodevelopmental effects from inutero exposure to

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methyl mercury resulting from the consumption of mercury contaminated fish. These children

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will have to struggle to keep up in school and might require remedial classes or special education.

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(National Research Council, “Toxicological Effects of Methyl mercury,” 2000.);

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     (5) Recent findings show historic and current use of mercury in automobiles can cause

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the release of as much as ten (10) tons of mercury to the environment each year. Based on the

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automobile industry’s own data, there is an estimated one hundred fifty (150) to two hundred

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(200) tons of mercury contained in the vehicles currently on the road in North America;

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     (6) Pollution prevention is the preferred strategy, more desirable than waste management

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and pollution control. Preventing mercury or mercury-containing components from entering

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thermal combustion units is an effective way to reduce mercury emissions into the environment;

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     (7) Vehicle mercury switch collection programs are being established across the country

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to protect human health and the environment; and

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     (8) The intent of this chapter is to reduce the quantity of mercury in the environment by:

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     (i) removing mercury from vehicles in commerce and end-of-life vehicles in the state of

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Rhode Island;

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     (ii) creating a collection and recovery program for mercury switches removed from

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vehicles in the state of Rhode Island;

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     (iii) establishing a system to store the mercury collected and recovered from vehicle

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components in the event that environmentally appropriate management technologies are not

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available; and

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     (iv) designing future vehicles for maximum environmental protection and recyclability at

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the end of their useful lives by implementing a design for recycling program which includes

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phasing out the use of mercury in future vehicle models.

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     23-24.10-3. Definitions. – For the purposes of this chapter:

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     (1) “Capture rate” means removal, collection, and recovery as a percentage of the total

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mercury available from vehicles in commerce and end-of-life vehicles annually.

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     (2) “End-of-life vehicle” means any vehicle which is sold, given or otherwise conveyed

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to a vehicle recycler or scrap recycling facility for the purpose of recycling.

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     (3) “Manufacturer” means any person, firm, association, partnership, corporation,

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governmental entity, organization, combination, or joint venture which is the last person to

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produce or assemble a new vehicle that utilizes mercury-added components, or in the case of an

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imported vehicle, the importer or domestic distributor of such vehicle.

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     (4) “Manufacturer-dealer warranty program” means an arrangement between a

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manufacturer and its franchisee(s), whereby the manufacturer agrees to reimburse the

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franchisee(s), at established rates, for labor or parts necessary to repair a vehicle pursuant to the

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manufacturer’s original equipment warranty to the original purchaser of the vehicle.

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     (5) “Mercury-added component” means a component that contains mercury and which

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was intentionally added to a vehicle in order to provide a specific characteristic, appearance, or

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quality or to perform a specific function, or for any other reason. Such components may include,

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but are not limited to, switches, sensors, lights, and navigational systems.

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     (6) “Mercury-added switch” a convenience light switch installed by an automotive

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manufacturer in a motor vehicle.

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     (7) “Scrap recycling facility” means any licensed individual or entity engaged in the

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processing and manufacturing of scrap metal into prepared grades and whose principal product is

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scrap iron, scrap steel or nonferrous metallic scrap for sale for remelting purposes.

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     (8) “Vehicle recycler” means any licensed individual or entity engaged in the business of

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acquiring, dismantling or destroying vehicles for the primary purpose of resale of their parts or

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scraps therefrom.

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     (9) “Vehicle in commerce” means any vehicle offered for sale by a dealer or registered

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by the state of Rhode Island to be operated on public roads and highways.

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     23-24.10-4. Removal, replacement, collection, and recovery of vehicle mercury

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switches. – Within ninety (90) days of enactment of this chapter, every manufacturer of vehicles

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sold within the state of Rhode Island shall, individually or as part of a group, submit to the

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department of environmental management for review and approval a plan to remove, collect, and

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recover mercury switches.

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     (a) Removal, replacement, collection, and recovery system.

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     (1) Vehicle manufacturers shall develop and implement a system to remove, replace,

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where possible, collect, and recover mercury switches from vehicles in commerce and end-of-life

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vehicles. For vehicles in commerce, the system shall provide for the removal, collection, and

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recovery of mercury switches, and replace them with mercury-free alternatives, where possible;

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the system shall also provide for the removal, collection, and recovery of mercury switches from

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end-of-life vehicles.

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     (2) The removal, replacement, where possible, collection, and recovery system shall

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include, at a minimum, the following:

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     (A) an education program to inform the public and other stakeholders about the purposes

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of the collection program and how to participate in it;

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     (B) a plan for implementing and financing the system, in accordance with section 23-

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24.10-4(b);

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     (C) documentation of the willingness of all necessary parties to implement the proposed

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system;

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     (D) information identifying the make, model, and year of vehicles containing mercury

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switches; a description of the component; the location of these components; and the safe, cost

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effective, and environmentally sound methods for their removal from vehicles in commerce and

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end-of-life vehicles;

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     (E) a mercury switch capture rate of at least ninety percent (90%), consistent with the

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principle that mercury switches shall be recovered unless the part is inaccessible due to

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significant damage to the vehicle in the area surrounding where the mercury switch is located;

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     (F) a description of the performance measures to be utilized and reported upon by the

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manufacturer to demonstrate that the system is meeting the capture rate identified in paragraph

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(E) of this section and other measures of program effectiveness, including, but not limited to, the

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number of switches collected from both end-of-life and vehicles in commerce, amount of mercury

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collected, the number of vehicles containing mercury switches, and the number of vehicles

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processed for recycling;

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     (G) a description of additional or alternative actions that shall be implemented to improve

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the system and its operation in the event that the program targets established under paragraph (E)

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are not met; and

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     (H) a plan to store the mercury collected and recovered from vehicle components in the

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event that environmentally appropriate management technologies are not available.

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     (3) Use of existing infrastructure for mercury switch replacement. In developing a

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removal, replacement, collection, and recovery system, manufacturers shall, to the extent

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practicable, utilize existing dealerships, service stations, inspection stations, repair shops, and

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other facilities which regularly service vehicles in commerce. Where a manufacturer does not

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utilize such infrastructure, the manufacturer shall include in its plan the reasons for establishing a

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separate removal, replacement, collection, and recovery infrastructure.

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     (4) Use of existing end-of-life vehicle infrastructure for mercury switch removal. In

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developing a removal, collection, and recovery system, manufacturers shall, to the extent

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practicable, utilize the existing end-of-life vehicle recycling infrastructure. Where a manufacturer

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does not utilize such infrastructure, the manufacturer must include in its plan the reasons for

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establishing a separate removal, collection, and recovery infrastructure.

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     (b) Cost. The total cost of the removal, replacement, collection, and recovery system for

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mercury switches shall be borne by the manufacturer or manufacturers. Costs shall include, but

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not be limited to, the following:

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     (1) labor to remove, or replace where possible, mercury switches. Labor shall be

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reimbursed at the prevailing rate auto manufacturers use to reimburse automotive dealers for

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replacing faulty switches under the manufacturer-dealer warranty program;

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     (2) training;

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     (3) packaging in which to transport mercury switches to recycling, storage or disposal

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facilities;

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     (4) shipping of mercury switches to recycling, storage or disposal facilities;

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     (5) recycling, storage or disposal of the mercury switches;

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     (6) public education materials and presentations; and

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     (7) maintenance of all appropriate systems and procedures to protect the environment

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from mercury contamination.

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     (c) Plan approval. The director of the department of environmental management shall:

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     (1) Within thirty (30) days of receipt of a manufacturer’s plan, issue public notice and

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solicit public comment on the manufacturer’s plan;

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     (2) Within ninety (90) days after receipt of a manufacturer’s plan:

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     (A) determine whether the entire plan complies with this section. If the entire plan is

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approved, the manufacturer shall begin implementation as soon as practicable. If the entire plan is

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rejected, the director shall inform the manufacturer as to the reasons for such rejection. The

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manufacturer will have thirty (30) days thereafter to submit a new plan; or

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     (B) determine whether any part of the plan meets the requirements of this section and

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shall approve such part(s) and disapprove such other(s) that do not comply with the requirements

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of this section. The manufacturer shall immediately implement the approved part(s) and submit a

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revised plan respecting the remaining parts within thirty (30) days after receipt of notification of

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the director’s disapproval. The director shall review a manufacturer’s revised plan within thirty

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(30) days of receipt.

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     (3) Two hundred forty (240) days after the date of enactment of this chapter, complete,

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on behalf of a manufacturer, any portion of the plan that has not been approved.

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     (4) The director of the department of environmental management shall review the plan

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three (3) years after the original date of approval of the plan and every three (3) years thereafter,

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and shall require modifications to the plan as appropriate.

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     23-24.10-5. Prohibition and proper management of vehicle mercury switches. – A

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licensed vehicle recycler who sells, gives or otherwise conveys ownership of an end-of-life

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vehicle to a scrap recycling facility for recycling shall remove all mercury-added switches from

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such end-of-life vehicle prior to delivery to such facility. Notwithstanding the foregoing, a scrap

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recycling facility may agree to accept an end-of-life vehicle (which has not been intentionally

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flattened, crushed or baled) with mercury-added switches, in which case the scrap recycling

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facility shall be responsible for removing such switches. It shall be unlawful for any person to

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represent that mercury switches have been removed from a vehicle or vehicle hulk being sold,

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given or otherwise conveyed for recycling if that person has not removed such mercury switches

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or arranged with another person to remove such switches.

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     23-24.10-6. Phase-out of mercury-added vehicle components and exemptions. – (a)

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Phase-out of mercury-added components. To prevent emissions or other releases of mercury from

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vehicles, effective two (2) vehicle model years from the date of enactment of this chapter, no

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mercury-added component shall be included as part of a new vehicle offered for sale in the state

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of Rhode Island.

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     (b) Exemption. A mercury-added component in a vehicle that is necessary in order to

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comply with federal or state health or safety requirements, or for purposes of national security,

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shall be exempt from the requirements of subsection (a) of this section, provided that:

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     (1) The manufacturer must apply, or reapply, for such exemption to the director of the

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department of environmental management;

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     (2) The application must be in writing, in a form acceptable to the director of the

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department of environmental management, stating the need for an exemption and the legal basis

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for an exemption. It must include documentation that there is no technically feasible alternative to

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the use of mercury in the component and that there is no comparable mercury-free component

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available at reasonable cost to address the health or safety requirement, or national security. “No

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technically feasible alternative” does not include the use of mercury for the purpose of marketing.

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     (A) The application must include a description of how the manufacturer will insure that a

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system exists, and how the manufacturer will fund such system, for the proper removal,

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collection, and recovery of the mercury-added component while the vehicle is in commerce and

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at the end of the vehicle’s useful life.

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     (B) Subject to the issuance of public notice and solicitation of public comment, the

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department of environmental management shall, within ninety (90) days, accept or reject the

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application for exemption.

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     (3) An exemption application may be submitted to the director of the department of

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environmental management, subject to public notice and comment, for safety components not

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required by federal or state law. An exemption may only be granted upon clear demonstration

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that:

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     (A) Such components will substantially increase public health and safety considering any

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impacts the components may have on overall public safety on the roads, and the life-cycle

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impacts of the mercury use; and

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     (B) That there is no technically feasible alternative to the use of mercury in the

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component.

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     (4) An exemption granted under this section by the director of the department of

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environmental management shall be valid for a period not to exceed two (2) years.

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     (5) Exemptions granted under this section shall be renewable for periods not to exceed

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two (2) years.

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     (6) If granted an exemption, any vehicle that may contain a mercury-added component

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shall be labeled by the manufacturer in a manner to clearly inform purchasers that mercury is

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present in the vehicle, and that the component may not be disposed of or placed in a waste stream

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destined for disposal until the mercury is removed or reused, recovered, or properly disposed of

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as a hazardous waste or otherwise managed to ensure that the mercury does not become mixed

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with other solid waste. The label shall identify the component with sufficient detail so that it may

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be readily located for removal. This label shall be placed on the doorpost of each vehicle that may

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contain a mercury-added component and be constructed of materials that are sufficiently durable

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to remain legible for the useful life of the vehicle.

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     (c) Design for recycling. Manufacturers, when designing vehicles and their components,

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shall:

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     (1) to the maximum extent practicable eliminate hazardous substances from their

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vehicles;

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     (2) insure that their vehicles are designed to be recycled in a safe, cost-effective, and

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environmentally sound manner, using existing technologies and infrastructures;

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     (3) where a vehicle is found to present environmental risks that make it uneconomical to

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recycle, the manufacturer shall make appropriate design or manufacturing changes.

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     23-24.10-7. Prohibit auto dismantling by unlicensed entities. – Any person or entity

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not licensed under the provisions of chapter 42-14.2 and chapter 5-21 is prohibited from

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dismantling automobiles for the sale of used parts and disposal at the end life of a motor vehicle.

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     23-24.10-8. General compliance with other provisions. – Except as expressly provided

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in this chapter, compliance with this chapter shall not exempt a person from compliance with any

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other law.

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     23-24.10-9. Regulations. – The director of the department of environmental management

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may promulgate rules and regulations concerning this chapter.

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     23-24.10-10. Public notification and comment. – The department of environmental

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management shall issue public notice and solicit public comment on; (1) the removal,

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replacement, collection, and recovery plans submitted by the vehicle manufacturer(s) submitted

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pursuant to section 23-24.10-4; and (2) the applications/reapplications for exemptions from the

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phase-out provisions of section 23-24.10-6. Such notification and solicitation shall be issued

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within thirty (30) days of receiving a plan/application from the manufacturer(s), giving the public

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adequate time to comment on the proposals.

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     Public comments received within the ninety (90) day review period of these provisions

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shall be considered by the department of environmental management when making its decision to

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accept or reject either the plan or the application for exemption.

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     23-24.10-11. Reporting. – One (1) year after the implementation of the removal,

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replacement, collection, and recovery system, and annually thereafter, a manufacturer subject to

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section 23-24.10-4 shall report to the department of environmental management concerning the

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performance of the manufacturer’s plan. The report shall include, but not be limited to, the

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following:

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     (a) a detailed description and documentation of the capture rate achieved;

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     (b) a plan to implement additional or alternative actions, if necessary to improve the

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capture rate;

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     (c) a listing of the public educational initiatives implemented, including size of audience

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reached; and

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     (d) any changes in the participation of the necessary parties for the plan to be effectively

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implemented.

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     23-24.10-12. Violations. – A violation of any of the provisions of this law or any rule or

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regulation promulgated pursuant thereto shall be punishable, in the case of a first violation, by a

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civil penalty not to exceed one thousand dollars ($1,000). In the case of a second and any further

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violations, the liability shall be for a civil penalty not to exceed five thousand dollars ($5,000) for

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each violation.

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     23-24.10-13. Universal waste. – The department of environmental management shall

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modify its rules governing universal hazardous waste as appropriate to promote the collection,

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transport, recovery, and proper management of mercury-added vehicle components.

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     23-24.10-14. Public education and outreach. – (a) Automobile manufacturers shall

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implement a comprehensive education and outreach program for the general public and the

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parties willingly participating in the removal, replacement where appropriate, recovery and

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disposal system established under this chapter. This education and outreach program should focus

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on the hazards related to, and the proper handling of, mercury; the requirements and obligations

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of individuals, manufacturers, and agencies under this chapter; and the details of the system

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established under this chapter.

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     (b) In collaboration with automobile manufacturers, the department of environmental

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management shall supplement this education and outreach program with an assistance program

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for businesses that might participate in the collection, replacement where appropriate, recovery

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and disposal system established under this chapter.

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     (c) Willingly participating parties shall implement a public education and outreach

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program focused on their participation in the collection, replacement (where applicable), recovery

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and disposal system established under this chapter.

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     23-24.10-15. Government procurement. – Notwithstanding other policies and

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guidelines for the procurement of vehicles, the department of administration shall, within one (1)

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year of the effective date of this chapter, revise its policies, rules and procedures to give priority

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and preference to the purchase of mercury-free vehicles taking into consideration competition,

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price, availability and performance.

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     23-24.10-16. Severability and construction. – The provisions of this chapter shall be

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severable, and if any court declares any phrase, clause, sentence, or provision of this chapter to be

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invalid, or its applicability of any government, agency, person, or circumstance is declared

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invalid, the remainder of the chapter and its relevant applicability shall not be affected. The

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provisions of this chapter shall be liberally construed to give effect to the purposes thereof.

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     SECTION 2. This act shall take effect upon passage.

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LC01050

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY

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     This act would establish the “Mercury-Free Vehicle Act.”

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     This act would take effect upon passage.

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LC01050

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