Presentations May 23 – 25, 2005 Portland, Maine For related information visit: .

Presentations May 23 – 25, 2005 Portland, Maine

For related information visit: http://www.newmoa.org/prevention/mercury/conferences

In the beginning . . . .

Labeling Lamps -inform the purchaser on the invoiceBan on toysBan on mercury manometers

MN

MinnesotaMinnesotahttp://www.moea.state.mn.us/http://www.moea.state.mn.us/

Vermont’s Vermont’s

1998/1999 1998/1999

LegislationLegislationAll mercury-added products manufacturedmanufactured after March 1, 2000 must be labeled.

Manufacturers provide a Certified Labeling Certified Labeling PlanPlan – Detailed descriptions of the products – Label size & material– Label wording– Label location and attachment method

Alternative Labeling:Alternative Labeling:

VT Labeling LawVT Labeling Law

Label: Product Product Prior to purchasePrior to purchase

Products to be labeled:– Thermostat or thermometer– Switch, individually or as part of another product– Medical or scientific instrument– An electric relay or other electrical device– A battery– other than a button battery– k

A lampA lamp

Vermont’s breakthroughs in lamp labeling . . .

Lamps manufactured after November 2003 must be labeled.Lamps were labeled nationally/internationally

Lamp Package Label

HID AUTOMOBILE HEADLIGHT

MODEL LEGISLATIONMODEL LEGISLATION

Comprehensive:Comprehensive: Designed to achieve virtual elimination goal

Regional:Regional:Promotes consistency across the states

Menu:Menu:Enables states to select provisions that are best suited to their jurisdiction/political interests

Labeling Model / VT LabelingLabeling Model / VT Labeling

Model Label:– ProductProduct– ComponentComponent– Prior to purchasePrior to purchase – PackagePackage

Products to be labeled:– Fabricated productsFabricated products – Formulated productsFormulated products

Responsibility – Final manufacturerFinal manufacturer

Vermont Label:– Product (Component)Product (Component)– Prior to purchase Prior to purchase

(Package)(Package)

Products to be labeled:– Vermont listVermont list

Responsibility – Manufacturer of productManufacturer of product

States that followed . . .States that followed . . .

MAINEMAINE

Vermont’s List

Lamps on Invoice

OREGONOREGON

Thermostats

WASHINGTONWASHINGTON

Lamps

http://www.mercvt.org/contacts.htm

More states that followed . . .More states that followed . . .

NEW YORKNEW YORK

Model Legislation

Lamps

Batteries

Developing Rules

RHODE ISLANDRHODE ISLAND

Model Legislation

Lamps on Invoice

No Batteries

CONNECTICUTCONNECTICUT

Model Legislation

Lamps

Products w/Batteries

Non-replaceable +7”– ProductProduct oror Care & Use– ComponentComponent (lamp)– Package oror Care & UseCare & Use

Non-replaceable 7”– Product oror Care & UseCare & Use– ComponentComponent (lamp)– Package oror Care & UseCare & Use

Non-replaceable +7”– ProductProduct– No No (lamp) label– Care & UseCare & Use

Non-replaceable 7”– Care & Use– No (lamp) label

CONNECTICUT CONNECTICUT ELECTRONICS LABELING

VERMONT 2007VERMONT 2007 ELECTRONICS LABELING

Replaceable lamps– ProductProduct– Package oror Care & Use

– Visible prior to purchase

Replaceable lamps–Product–Package–Care & Use (if any)–Visible prior to purchase

CONNECTICUT CONNECTICUT ELECTRONICS LABELING

VERMONT 2007VERMONT 2007 ELECTRONICS LABELING

What’s the difference?What’s the difference?

Products with button cell batteries– Connecticut and New York

Medical products– Vermont and New York

Contact InformationContact Information

KAREN KNAEBEL

(802) 241-3455

[email protected]

PresentationsMay 23 – 25, 2005Portland, Maine

Legal Issues & Challenges withLegal Issues & Challenges with Mercury Reduction & Labeling Mercury Reduction & Labeling

LawsLaws

Jon HinckJon Hinck

Natural Resources Council of Natural Resources Council of MaineMaine

May 24, 2005May 24, 2005

ACHIEVING MERCURY REDUCTION IN PRODUCTS & WASTE:COORDINATING NATIONAL & LOCAL GOVERNMENT INITIATIVES

CONFERENCE

TWO CASE STUDIES:TWO CASE STUDIES:

MAINE'S AUTO SWITCH LAWMAINE'S AUTO SWITCH LAW

38 M.R.S.A. §1665-A(1) (2002)38 M.R.S.A. §1665-A(1) (2002)

VERMONT'S MERCURY LABELING LAWVERMONT'S MERCURY LABELING LAW

Vt. Stat. Ann. tit. 10, § 6621d(a)Vt. Stat. Ann. tit. 10, § 6621d(a)(1998)(1998)

Mercury Products law enacted in 2000 Mercury Products law enacted in 2000 requiring:requiring: Labeling andLabeling and RecyclingRecycling

Auto switch part delayed 6 months to Auto switch part delayed 6 months to address concerns of the Alliance of address concerns of the Alliance of Automobile Manufacturers (AAM) and Automobile Manufacturers (AAM) and the Maine Auto Recyclers Association the Maine Auto Recyclers Association (MARA). (MARA).

DEP directed to develop a plan for auto DEP directed to develop a plan for auto switchesswitches

Origins of Maine’s Mercury Origins of Maine’s Mercury Switch LawSwitch Law

Enactment of Maine Auto Switch Enactment of Maine Auto Switch Law,Law,

38 M.R.S.A. §1665-A(1) 38 M.R.S.A. §1665-A(1)In April 2002, MaineIn April 2002, Maineenacts law that requiresenacts law that requiresautomakers to:automakers to: set-up a statewide set-up a statewide

system to collect, system to collect, consolidate and consolidate and recycle mercury-recycle mercury-added switchesadded switches

pay a $1 per switch pay a $1 per switch bounty to car bounty to car recyclers recyclers

Key Elements of the Maine LawKey Elements of the Maine Law

Shared Responsibility Shared Responsibility for removal and for removal and recycling of Hg recycling of Hg switches :switches : ELV handlers ELV handlers

remove the remove the switches, log and switches, log and transport them to a transport them to a consolidation consolidation facility. facility.

Automakers establish Automakers establish consolidation facilities, pay $1 for consolidation facilities, pay $1 for each switch delivered to the each switch delivered to the facilities, and ship for recycling.facilities, and ship for recycling.

The DEP provides information The DEP provides information and training on removal and and training on removal and recycling of the switches. recycling of the switches.

Key Elements of the Maine Key Elements of the Maine Law ContinuedLaw Continued

Implementation by Implementation by AutomakersAutomakers

Plans received from AAM, Plans received from AAM, Subaru, Recreation Vehicle Subaru, Recreation Vehicle Industry Association and Industry Association and Truck Manufacturers Truck Manufacturers Association.Association.

Elements of AAM planElements of AAM plan(covering most of the fleet)(covering most of the fleet)

Two consolidation Two consolidation locations—Portland and locations—Portland and Bangor.Bangor.

Party delivering switches Party delivering switches to these locations must:to these locations must:

1. Provide VINs for each 1. Provide VINs for each source vehicle; andsource vehicle; and

2. Certify that source 2. Certify that source vehicles were vehicles were dismantled in Maine.dismantled in Maine.

Alliance of Automobile Alliance of Automobile Manufacturers v. Kirkpatrick Manufacturers v. Kirkpatrick (Fed. District Court of Maine)(Fed. District Court of Maine)

AAM sued, arguing the law violates AAM sued, arguing the law violates its members rights under the its members rights under the following clauses of the U.S. following clauses of the U.S. Constitution: Constitution:

(1) “Dormant” Commerce; (1) “Dormant” Commerce; (2) Equal Protection; and (2) Equal Protection; and (3) Due Process(3) Due Process

AAM v. KirkpatrickAAM v. Kirkpatrick

On July 17, 2003, U.S. Magistrate On July 17, 2003, U.S. Magistrate Judge Margaret Kravchuk issued Judge Margaret Kravchuk issued an opinion recommending an opinion recommending dismissal.dismissal.

On February 17, 2004, the U.S. On February 17, 2004, the U.S. District Court adopted the District Court adopted the recommended decision granting recommended decision granting summary judgment for Maine.summary judgment for Maine.

AAM v. KirkpatrickAAM v. Kirkpatrick Analysis Analysis

The opinion recognizes the State’s broad authority to protect public health and the environment.

Pursuing those Pursuing those objectives, the objectives, the State can shift State can shift costs to parties costs to parties responsible for responsible for creating a creating a recognized hazard recognized hazard such as mercury such as mercury pollution. pollution.


“ “The Alliance has not challenged The Alliance has not challenged Maine’s assertion that upwind release Maine’s assertion that upwind release of mercury results in appreciable of mercury results in appreciable mercury deposition in Maine or that mercury deposition in Maine or that the burden placed on manufacturers is the burden placed on manufacturers is wholly out of proportion to the degree wholly out of proportion to the degree of harm presented. Each of the of harm presented. Each of the challenged provisions appears to have challenged provisions appears to have a rational relationship to advancing a rational relationship to advancing the mercury remediation effort.” the mercury remediation effort.”



“ “The obvious answer to the The obvious answer to the Alliance’s [interstate Alliance’s [interstate commerce clause] challenge commerce clause] challenge it that it is not excessively it that it is not excessively burdensome to impose on burdensome to impose on those who placed mercury those who placed mercury switches in interstate switches in interstate commerce a reasonable commerce a reasonable financial obligation to help financial obligation to help ensure that the ensure that the encapsulated mercury does encapsulated mercury does not cause harm to public not cause harm to public health or the environment.” health or the environment.”


““The Alliance ultimately fails to make The Alliance ultimately fails to make any factual showing in support of its any factual showing in support of its conception of fairness. What is conception of fairness. What is offered is that the manufacturers offered is that the manufacturers estimate the cost of compliance to estimate the cost of compliance to amount to roughly $200,000 in start amount to roughly $200,000 in start up costs and projected annual costs up costs and projected annual costs of $120,000. In my view, this simple of $120,000. In my view, this simple showing falls short of demonstrating showing falls short of demonstrating a clearly excessive burden in relation a clearly excessive burden in relation to the local benefit of recovering to the local benefit of recovering switches”switches”

““According to the Alliance, According to the Alliance, because certain provisions in the because certain provisions in the Act serve the purpose of protecting Act serve the purpose of protecting domestic industries from certain domestic industries from certain financial and administrative financial and administrative burdens under the regulatory burdens under the regulatory scheme, the Court should infer scheme, the Court should infer that these same burdens were that these same burdens were relegated to manufacturers 'solely relegated to manufacturers 'solely because of their residence.' This because of their residence.' This simply does not follow.”simply does not follow.”

AAM v. KirkpatrickAAM v. Kirkpatrick Analysis AnalysisNo violation of Due Process and Equal No violation of Due Process and Equal

ProtectionProtection

““It is far more plausible that the primary It is far more plausible that the primary burden was imposed on manufacturers burden was imposed on manufacturers in recognition of the fact that the need in recognition of the fact that the need for a mercury switch recovery program for a mercury switch recovery program existed solely by virtue of the existed solely by virtue of the manufacturers' incorporation of these manufacturers' incorporation of these mercury-laden components in their mercury-laden components in their automobiles for roughly ten years after automobiles for roughly ten years after the industry's cognizance of the the industry's cognizance of the mercury disposal problem.”mercury disposal problem.”

AAM v. KirkpatrickAAM v. Kirkpatrick Analysis AnalysisNo violation of Due Process and Equal No violation of Due Process and Equal

ProtectionProtection

The Court also rejected the automakers’ The Court also rejected the automakers’ slippery slope argument alleging harm that slippery slope argument alleging harm that would arise if other states adopted their would arise if other states adopted their own version of this law. In response, the own version of this law. In response, the Court said that “the consequence would Court said that “the consequence would be akin to multi-state bottle bills,” posing be akin to multi-state bottle bills,” posing no great restriction on commerce. no great restriction on commerce.


Vermont Mercury Labeling Vermont Mercury Labeling LawLaw

1998 Vermont law, 10 Vt. Stat. Ann. § 1998 Vermont law, 10 Vt. Stat. Ann. § 6621d, (as later amended) requires 6621d, (as later amended) requires labeling of mercury-added consumer labeling of mercury-added consumer products. The label must: inform products. The label must: inform consumers that (1) the product consumers that (1) the product contains mercury and (2) should be contains mercury and (2) should be recycled or disposed of as hazardous recycled or disposed of as hazardous waste and not discarded. waste and not discarded.

Vermont Mercury Labeling LawVermont Mercury Labeling Law

Applies to: thermostats; Applies to: thermostats; thermometers; switches; medical thermometers; switches; medical and scientific devices; electrical and scientific devices; electrical relays and other electrical devices; relays and other electrical devices; lamps; and certain batteries. lamps; and certain batteries.

Nat’l Elec. Mfgs (NEMA) v. Nat’l Elec. Mfgs (NEMA) v. SorrellSorrell

In 1999, The National Electrical In 1999, The National Electrical Manufacturers Association (NEMA) – Manufacturers Association (NEMA) – a trade association – filed suit in a trade association – filed suit in federal court on behalf of federal court on behalf of manufacturers of fluorescent and manufacturers of fluorescent and other mercury-containing lamps. other mercury-containing lamps.

NEMA sought to enjoin enforcement NEMA sought to enjoin enforcement of the labeling requirement.of the labeling requirement.

NEMA v. SorrellNEMA v. Sorrell NEMA claims:NEMA claims: Labeling requirement Labeling requirement

violates its members' violates its members' constitutional rights constitutional rights under the: under the:

(1) Commerce; (1) Commerce; (2) Supremacy; and (2) Supremacy; and (3) Due Process Clauses, (3) Due Process Clauses,

and and (4) the First Amendment. (4) the First Amendment.

NEMA v. SorrellNEMA v. Sorrell, ,

On 11/8/99, District Court, Judge On 11/8/99, District Court, Judge Garvan Murtha issued a preliminary Garvan Murtha issued a preliminary injunction barring enforcement injunction barring enforcement holding that NEMA had demonstrated holding that NEMA had demonstrated a likelihood of success on the merits.a likelihood of success on the merits.

The 11/6/01, the Second Circuit The 11/6/01, the Second Circuit Appeals Court reversed holding for Appeals Court reversed holding for the State of Vermont. 272 F.3d 104 the State of Vermont. 272 F.3d 104 (2(2ndnd Cir. 2001) Cir. 2001)

NEMA v. SorrellNEMA v. Sorrell Analysis Analysis (Commerce Cl.)(Commerce Cl.)

Standard: Dormant Commerce Standard: Dormant Commerce Clause is Violated by a Statute Clause is Violated by a Statute that imposes a burden on that imposes a burden on interstate commerce greater interstate commerce greater than the local benefits secured.than the local benefits secured.


““The statute does not The statute does not inescapably require inescapably require manufacturers to label all manufacturers to label all lamps wherever distributed.... lamps wherever distributed.... To the extent the statute may To the extent the statute may be said to “require” labels on be said to “require” labels on lamps sold outside Vermont, lamps sold outside Vermont, then, it is only because the then, it is only because the manufacturers are unwilling manufacturers are unwilling to differentiate between to differentiate between Vermont-bound and non-Vermont-bound and non-Vermont-bound lamps.” Vermont-bound lamps.”


Rejected claim that the law Rejected claim that the law burdens interstate burdens interstate commerce with the commerce with the possibility of multiple, possibility of multiple, inconsistent labeling inconsistent labeling requirements between requirements between states. “It is not enough to states. “It is not enough to point to a risk of conflicting point to a risk of conflicting regulatory regimes in regulatory regimes in multiple states; there must multiple states; there must be an actual conflict.”be an actual conflict.”


““Whatever the policy reasons Whatever the policy reasons may be in support of a nationally may be in support of a nationally uniform regulatory framework uniform regulatory framework for mercury-containing products, for mercury-containing products, such a framework is not such a framework is not compelled by the Commerce compelled by the Commerce clause.”clause.”

NEMA v. SorrellNEMA v. Sorrell Analysis Analysis (1(1stst A.) A.)

““The (First) Amendment is The (First) Amendment is satisfied ... by a rational satisfied ... by a rational connection between the purpose connection between the purpose of a commercial disclosure of a commercial disclosure requirement and the means requirement and the means employed to realize the employed to realize the purpose.”purpose.”


““Vermont’s interest in protecting Vermont’s interest in protecting human health and the environment human health and the environment from mercury poisoning is a from mercury poisoning is a legitimate and significant public legitimate and significant public goal....We believe that such a goal....We believe that such a reasonable relationship is plain in reasonable relationship is plain in this case.”this case.”


““The prescribed labeling would likely The prescribed labeling would likely contribute directly to the reduction contribute directly to the reduction of mercury pollution....It is probably of mercury pollution....It is probably that some lamp purchasers, newly that some lamp purchasers, newly informed by the Vermont label, will informed by the Vermont label, will properly dispose of them and properly dispose of them and thereby reduce mercury pollution.”thereby reduce mercury pollution.”


““States are not bound to follow States are not bound to follow any particular hierarchy in any particular hierarchy in addressing problems within their addressing problems within their borders.... a state may choose borders.... a state may choose to tackle a subsidiary cause, to tackle a subsidiary cause, particularly where the primary particularly where the primary cause lies out of its reach.”cause lies out of its reach.”

What are our options?What are our options?

Three Categories of Mercury Legislation:Three Categories of Mercury Legislation: 1) Bans on sale and distribution of 1) Bans on sale and distribution of

mercury-added products;mercury-added products;

2) Manufacturer responsibility for 2) Manufacturer responsibility for recovery and recycling; andrecovery and recycling; and

3) Mandatory labeling with notice of 3) Mandatory labeling with notice of mercury content and recycling tipsmercury content and recycling tips

Warning

TOXIC FISH

Presentations May 23 – 25, 2005 Portland, Maine For related information visit: .

Documents

Transcript of Presentations May 23 – 25, 2005 Portland, Maine For related information visit: .