HB5348 95TH GENERAL ASSEMBLY

LRB095 18468 BDD 44554 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB5348

Introduced , by Rep. Naomi D. Jakobsson

SYNOPSIS AS INTRODUCED:

New Act
415 ILCS 5/22.23b

Creates the Mercury Thermostat Collection Act. Requires thermostat manufacturers to establish and maintain a program for the collection and recycling of mercury thermostats. Sets forth requirements for the Program. Requires that mercury thermostats be handled as universal waste. Prohibits wholesalers, retailers, and technicians from selling or distributing non-mercury thermostats if they have not taken certain actions with respect to the disposal of mercury thermostats. Sets forth penalties for violations of the Act. Requires the Environmental Protection Agency to publish certain information and make recommendations to the Governor and General Assembly concerning the collection of mercury thermostats. Contains other provisions. Amends the Environmental Protection Act. Prohibits the sale or distribution of button cell batteries that contains mercury. Prohibits the sale or distribution of certain mercury-added products. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning environmental safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Mercury Thermostat Collection Act.

Section 10. Definitions.

"Agency" means the Environmental Protection Agency.

"Board" means the Pollution Control Board.

"Mercury thermostat" means a product or device that uses a mercury switch to sense and control room temperature through communication with heating, ventilating, or air conditioning equipment. "Mercury thermostat" includes thermostats used to sense and control room temperature in residential, commercial, industrial, and other buildings, but does not include thermostats used to sense and control temperature as a part of a manufacturing or industrial process.

"Thermostat manufacturer" means the person who owned or owns the brand name of a thermostat.

"Thermostat retailer" means a person who sells thermostats of any kind primarily to consumers.

"Thermostat technician" means a person who installs or repairs thermostats, but does not include a person who installs or repairs a thermostat serving his or her own residence.

"Thermostat wholesaler" means a person who sells thermostats of any kind primarily for resale.

Section 15. Mercury thermostat collection programs.

(a) This Section applies to thermostat manufacturers. Thermostat manufacturers must, individually or collectively, establish and maintain an Agency-approved program for the collection and recycling of mercury thermostats that have been removed, replaced, or otherwise taken out of service. The program must:

(1) include outreach and education efforts directed towards the following persons to inform them of the program and encourage their participation: thermostat wholesalers, thermostat technicians, thermostat retailers, and homeowners;

(2) provide the following persons with containers to be used for the collection of mercury thermostats:

(A) each thermostat wholesaler who requests to participate in the program as a mercury thermostat collection point;

(B) each thermostat technician that requests to participate in the program as a mercury thermostat collection point; and

(C) each thermostat retailer that requests to participate in the program as a mercury thermostat collection point;

(3) ensure that mercury thermostats delivered to persons participating in the program as mercury thermostat collection points are properly managed as universal waste in accordance with the Illinois Pollution Control Board's universal waste regulations;

(4) be designed to achieve the collection goals in subsection (e) of this Section;

(5) include financial or other incentives designed to encourage sufficient participation in the program to achieve the collection goals in subsection (e) of this Section; and

(6) not include any fees or other charges to persons participating in the program, except that each thermostat wholesaler, thermostat technician, or thermostat retailer that is provided with one or more collection containers may be charged a program administration fee not to exceed $75 per collection container.

(b) No later than January 1, 2009, thermostat manufacturers must, individually or collectively, submit to the Agency a plan for a mercury thermostat collection program. The plan must demonstrate that the collection program meets the requirements of subsection (a) of this Section. In reviewing the plans, the Agency may consider a plan's consistency with other thermostat manufacturer's collection plans in this State and mercury thermostat collection programs in other states. In addition, the Agency may consult with thermostat manufacturers, thermostat wholesalers, thermostat technicians, thermostat retailers, and environmental interest groups. Within 90 days after its receipt of a plan, the Agency must approve or deny the plan in writing. The Agency must approve the plan, with or without modifications, if the thermostat manufacturer's collection program meets the requirements of subsection (a) of this Section. If the Agency denies the plan or approves the plan with conditions, the Agency's decision shall be subject to appeal to the Board in accordance with the procedures of Section 40 of the Environmental Protection Act (415 ILCS 5/40) for appealing permit denials or conditions.

(c) No later than July 1, 2009, thermostats manufacturers must, individually or collectively, implement an Agency-approved mercury thermostat collection program, including any modifications required by the Agency.

(d) No later than March 1, 2010, and no later than March 1 of each year thereafter, thermostat manufacturers must, individually or collectively, submit to the Agency a report on their mercury thermostat collection program that at a minimum contains the following information:

(1) the number of mercury thermostats collected under the program during the previous calendar year;

(2) the estimated total amount of mercury contained in the mercury thermostats collected under the program during the previous calendar year;

(3) an evaluation of the effectiveness of the program, including, but not limited to, the program's contribution to meeting the collection goals set forth in subsection (e) of this Section and the effectiveness of the incentives required under subsection (a)(5) of this Section; and

(4) a list of all thermostat wholesalers, thermostat technicians, and thermostat retailers participating in the program as mercury thermostat collection points.

(e) The mercury thermostat collection programs required under this Act must be designed to collectively achieve the following collection goals:

(1) For calendar years 2011 and 2012, the collection goal for each year is 15% of the estimated number of mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

(2) For calendar years 2013 and 2014, the collection goal for each year is 30% of the estimated mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

(3) For calendar years 2015 and 2016, the collection goal for each year is 50% of the estimated mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

(4) For calendar year 2017 and each calendar year thereafter, the collection goal for each year is 80% of the estimated mercury thermostats in this State that are removed, replaced, or otherwise taken out of service during the calendar year.

The estimated number of mercury thermostats in this State that are removed, replaced, or otherwise taken out of service each year must be determined by the Agency in consultation with thermostat manufacturers, thermostat wholesalers, thermostat technicians, thermostat retailers, and environmental interest groups. No later than March 1, 2013, and no later than March 1 of each year thereafter, the Agency must publish on its website the estimated number of mercury thermostats that were removed, replaced, or otherwise taken out of service during the previous calendar year.

(f) If the collection goals set forth in subsection (e) of this Section are not met for the calendar year 2012, 2014, 2016, or 2018, the Agency may require one or more thermostat manufacturers to revise their mercury thermostat collection programs. Thermostat manufacturers required to revise their collection programs must, individually or collectively, submit plans for revised collection programs no later than 90 days after the Agency's written notice that a revised collection program is required. The Agency shall review and approve revised plans in accordance with subsection (b) of this Section. Thermostat manufacturers must, individually or collectively, implement revised plans within 90 days after the Agency approves the revised plans in writing, including any modifications required by the Agency.

Section 20. Removal of mercury thermostats. Any person who removes, replaces, or otherwise takes out of service a mercury thermostat must properly manage the mercury thermostat as universal waste in accordance with the Board's universal waste regulations. This Section does not apply to a person who (i) removes, replaces, or otherwise takes out of service a mercury thermostat that serves his or her own residence and (ii) disposes of the thermostat as household waste.

Section 25. Certain prohibited activities. On and after July 1, 2009:

(1) No thermostat manufacturer that is in violation of this Act may sell, offer to sell, distribute, or offer to distribute a non-mercury thermostat.

(2) No thermostat wholesaler may sell, offer to sell, distribute, or offer to distribute a non-mercury thermostat unless the wholesaler participates in one or more collection programs required under this Act as a mercury thermostat collection point.

(3) No thermostat technician may remove, replace, or otherwise take out of service a mercury thermostat unless the thermostat technician delivers it to a person participating in a collection program required under this Act as a mercury thermostat collection point.

(4) No thermostat retailer may sell, offer to sell, distribute, or offer to distribute a non-mercury thermostat unless the retailer provides educational materials to inform consumers about programs for the collection of mercury thermostats. Educational materials may include, but are not limited to, labels, inserts, brochures, or signs.

Section 30. Information regarding the collection and recycling of mercury thermostats. No later than June 1, 2010, and no later than June 1 of each year thereafter, the Agency must post on its website information regarding the collection and recycling of mercury thermostats in this State. The information must include, but is not limited to, the following:

(1) a description of the collection programs established under this Act; and

(2) a report on the thermostat manufacturers' success in achieving the collection goals set forth in Section 15(e) of this Act.

Section 35. Duty to investigate. The Agency has the duty to investigate violations of this Act.

Section 40. Penalties.

(a) Any thermostat manufacturer who violates any provision of this Act or fails to perform any duty imposed by this Act (i) is liable for a civil penalty not to exceed $1,000 for the violation and an additional civil penalty not to exceed $1,000 for each day the violation continues and (ii) is liable for a civil penalty not to exceed $5,000 for a second or subsequent violation and an additional civil penalty not to exceed $1,000 for each day the second or subsequent violation continues.

(b) Any thermostat wholesaler, thermostat technician, or thermostat retailer who violates any provision of this Act or fails to perform any duty imposed by this Act is liable for a civil penalty not to exceed $250 for the first violation and not to exceed $500 for a second or subsequent violation.

(c) The penalties provided for in this Section may be recovered in a civil action brought by the Attorney General on behalf of the Agency and the People of the State of Illinois, or by the State's Attorney of the county in which the violation occurred. Without limiting any other authority that may exist for the awarding of attorney's fees and costs, a court of competent jurisdiction may award costs and reasonable attorney's fees, including the reasonable costs of expert witnesses and consultants, to the Attorney General or the State's Attorney in a case where he or she has prevailed against a person who has committed a willful, knowing, or repeated violation of this Act. Any funds collected under this Section in an action in which the Attorney General has prevailed must be deposited into the Hazardous Waste Fund established under the Environmental Protection Act. Any funds collected under this Section in an action in which a State's Attorney has prevailed shall be retained by the county in which he or she serves.

(d) The Attorney General or the State's Attorney of the county in which the violation occurred may, at the request of the Agency or on his or her own motion, institute a civil action for an injunction, prohibitory or mandatory, to restrain violations of this Act or to require such other actions as may be necessary to address violations of this Act.

(e) The penalties and injunctions provided in this Act are in addition to any penalties, injunctions, or other relief provided under any other law. Nothing in this Act bars a cause of action by the State for any other penalty, injunction, or relief provided by any other law.

(f) There is no penalty under this Section for a thermostat manufacturer's failure to achieve the collection goals set forth in subsection (e) of Section 15 of this Act.

Section 45. Recommendations to the Governor and the General Assembly. On or before January 1, 2010, the Agency shall investigate and make recommendations to the Governor and the General Assembly regarding strategies for improving the collection and proper management of mercury thermostats removed, replaced, or otherwise taken out of service by homeowners. In developing its recommendations, the Agency shall consult with thermostat manufacturers, thermostat retailers, local governments, recycling associations, environmental interest groups, and other appropriate stakeholder groups. The Agency shall identify the best available options for collecting mercury thermostats from homeowners taking into account such considerations as cost and convenience, safety and training, education and outreach needs, and shared responsibilities for implementing the collection and recycling program.

Section 90. The Environmental Protection Act is amended by changing Section 22.23b as follows:

(415 ILCS 5/22.23b)

Sec. 22.23b. Mercury and mercury-added products.

(a) No Beginning July 1, 2005, no person shall purchase or accept, for use in a primary or secondary school classroom, bulk elemental mercury, chemicals containing mercury compounds, or instructional equipment or materials containing mercury added during their manufacture. This subsection (a) does not apply to: (i) other products containing mercury added during their manufacture that are used in schools and (ii) measuring devices used as teaching aids, including, but not limited to, barometers, manometers, and thermometers, if no adequate mercury-free substitute exists.

(b) Beginning July 1, 2007, no person shall sell, offer to sell, distribute, or offer to distribute a mercury switch or mercury relay individually or as a product component. For a product that contains one or more mercury switches or mercury relays as a component, this subsection (b) is applicable to each component part or parts and not the entire product. This subsection (b) does not apply to the following:

(1) Mercury switches and mercury relays used in medical diagnostic equipment regulated under the federal Food, Drug, and Cosmetic Act.

(2) Mercury switches and mercury relays used at electric generating facilities.

(3) Mercury switches in thermostats used to sense and control room temperature.

(4) Mercury switches and mercury relays required to be used under federal law or federal contract specifications.

(5) A mercury switch or mercury relay used to replace a mercury switch or mercury relay that is a component in a larger product in use prior to July 1, 2007, and one of the following applies:

(A) The larger product is used in manufacturing; or

(B) The mercury switch or mercury relay is integrated and not physically separate from other components of the larger product.

(c) The manufacturer of a mercury switch or mercury relay, or a scientific instrument or piece of instructional equipment containing mercury added during its manufacture, may apply to the Agency for an exemption from the provisions of subsection (a) or (b) of this Section for one or more specific uses of the switch, relay, instrument, or piece of equipment by filing a written petition with the Agency. The Agency may grant an exemption, with or without conditions, if the manufacturer demonstrates the following:

(1) A convenient and widely available system exists for the proper collection, transportation, and processing of the switch, relay, instrument, or piece of equipment at the end of its useful life; and

(2) The specific use or uses of the switch, relay, instrument, or piece of equipment provides a net benefit to the environment, public health, or public safety when compared to available nonmercury alternatives.

Before approving any exemption under this subsection (c) the Agency must consult with other states to promote consistency in the regulation of products containing mercury added during their manufacture. Exemptions shall be granted for a period of 5 years. The manufacturer may request renewals of the exemption for additional 5-year periods by filing additional written petitions with the Agency. The Agency may renew an exemption if the manufacturer demonstrates that the criteria set forth in paragraphs (1) and (2) of this subsection (c) continue to be satisfied. All petitions for an exemption or exemption renewal shall be submitted on forms prescribed by the Agency.

The Agency must adopt rules for processing petitions submitted pursuant to this subsection (c). The rules shall include, but shall not be limited to, provisions allowing for the submission of written public comments on the petitions.

(d) No later than January 1, 2005, the Agency must submit to the Governor and the General Assembly a report that includes the following:

(1) An evaluation of programs to reduce and recycle mercury from mercury thermostats and mercury vehicle components; and

(2) Recommendations for altering the programs to make them more effective.

In preparing the report the Agency may seek information from and consult with, businesses, trade associations, environmental organizations, and other government agencies.

(e) Mercury switches and mercury relays, and scientific instruments and instructional equipment containing mercury added during their manufacture, are hereby designated as categories of universal waste subject to the streamlined hazardous waste rules set forth in Title 35 of the Illinois Administrative Code, Subtitle G, Chapter I, Subchapter c, Part 733 ("Part 733"). Within 60 days of the effective date of this amendatory Act of the 93rd General Assembly, the Agency shall propose, and within 180 days of receipt of the Agency's proposal the Board shall adopt, rules that reflect this designation and that prescribe procedures and standards for the management of such items as universal waste.

If the United States Environmental Protection Agency adopts streamlined hazardous waste regulations pertaining to the management of mercury switches or mercury relays, or scientific instruments or instructional equipment containing mercury added during their manufacture, or otherwise exempts such items from regulation as hazardous waste, the Board shall adopt equivalent rules in accordance with Section 7.2 of this Act within 180 days of adoption of the federal regulations. The equivalent Board rules may serve as an alternative to the rules adopted under subsection (1) of this subsection (e).

(f) Beginning July 1, 2008, no person shall install, sell, offer to sell, distribute, or offer to distribute a mercury thermostat in this State. For purposes of this subsection (f), "mercury thermostat" means a product or device that uses a mercury switch to sense and control room temperature through communication with heating, ventilating, or air conditioning equipment. "Mercury thermostat" includes thermostats used to sense and control room temperature in residential, commercial, industrial, and other buildings, but does not include thermostats used to sense and control temperature as a part of a manufacturing or industrial process.

(g) Beginning July 1, 2011, no person may sell, offer to sell, distribute, or offer to distribute, either individually or as a product component, a button cell battery that contains mercury. For a product that has one or more mercury-containing button cell batteries as a component, this subsection (g) applies to each component part or parts and not to the entire product. For purposes of this subsection (g), "button cell battery" means a battery that is similar to a button or coin in size and shape.

(h) Beginning July 1, 2009, no person may sell, offer to sell, distribute, or offer to distribute a mercury-added product if its mercury content exceeds 10 parts per million for formulated mercury products or 10 milligrams for all other mercury-added products. For a product that has one or more mercury-added products as a component: (i) this subsection (h) applies to each component part or parts and not the entire product and (ii) the limits set forth in this subsection apply to each component separately and not to the sum of the mercury in all of the components.

This subsection (h) does not apply to the following:

(1) Fluorescent lamps, but only through June 30, 2013.

(2) High-intensity discharge lamps, including, but not limited to, metal halide, high pressure sodium, and mercury vapor lamps. For high-intensity discharge lamps that are components of a motor vehicle, this item (2) applies only if the motor vehicle is manufactured prior to July 1, 2009.

(3) Mercury-added products if the level of mercury contained in the products is required in order to comply with federal or State health, safety, or homeland security requirements, laws, or regulations.

(4) Dental amalgam.

(5) Pharmaceuticals, pharmaceutical products, biological products, or any substance that may be lawfully sold with a prescription or over-the-counter without a prescription under the federal Food, Drug and Cosmetics Act (21 U.S.C. 301, et seq.). For the purpose of this item (5), "biological product" means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product or an analogous product, or asphenamine (a derivative of arsphenamine) or any other trivalent organic arsenic compound used for the prevention, treatment, or cure of a disease or condition of human beings.

(6) Mercury switches and mercury relays that are exempt from subsection (b) of this Section.

(7) Mercury thermostats that are exempt from subsection (f) of this Section.

(8) Mercury fever thermometers and mercury-added products that are exempt from the Mercury-Added Product Prohibition Act (410 ILCS 46/10).

The manufacturer of a mercury-added product may file a written petition with the Agency to apply for an exemption from the provisions of this subsection (h) for one or more specific uses of the mercury-added product. The Agency may grant an exemption, with or without conditions, if the manufacturer demonstrates the following:

(1) a convenient and widely available system exists for the proper collection, transportation, and processing of the mercury-added product at the end of its useful life; and

(2) the specific use or uses of the mercury-added product provides a net benefit to the environment, public health, or public safety when compared to available nonmercury alternatives.

Before approving any exemption under this subsection (h), the Agency may consult with other states to promote consistency in the regulation of mercury-added products. Exemptions shall be granted for a period of 2 years. The manufacturer may request renewals of the exemption for additional 2 year periods by filing additional written petitions with the Agency. The Agency may renew an exemption if the manufacturer demonstrates that the criteria set forth in paragraphs (1) and (2) of this subsection (h)(4) continue to be satisfied. All petitions for an exemption or exemption renewal must be submitted on forms prescribed by the Agency. The Agency must adopt rules for processing petitions submitted pursuant to this subsection (h). The rules may, but are not required to, include provisions allowing for the submission of written public comments on the petitions. For purposes of this subsection (h):

"Mercury-added product" means a product, commodity, chemical, or component of a product that contains mercury or a mercury compound that is intentionally added for any reason. "Mercury-added product" includes, but is not limited to, formulated mercury-added products and fabricated mercury-added products.

"Formulated mercury-added product" means a mercury-added product that is a consistent mixture of chemicals. Formulated mercury-added products include, but are not limited to, laboratory chemicals, cleaning products, cosmetics, pharmaceuticals, and coating materials.

"Fabricated mercury-added product" means a mercury-added product consisting of a combination of individual components that combine to make a single unit.

(i) If the Agency refuses to grant or grants with conditions an exemption under subsection (c) or (h) of this Section, then the Agency's decision is subject to appeal to the Board in accordance with the procedures of Section 40 of this Act for appealing permit denials or conditions.

(Source: P.A. 95-452, eff. 8-27-07.)

Section 99. Effective date. This Act takes effect upon becoming law.