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STATE OF NEW YORK ________________________________________________________________________ 1661 2011-2012 Regular Sessions IN ASSEMBLY January 11, 2011 ___________ Introduced by M. of A. ROSENTHAL -- read once and referred to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, the agriculture and markets law, and the insurance law, in relation to enacting the Mercu- ry-Free Water Resources and Mercury Reduction Management Strategy Act; to amend the state finance law, in relation to making technical corrections thereto and to repeal certain provisions of the environ- mental conservation law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known as "The Mercury-Free 2 Water Resources and Mercury Reduction Management Strategy Act". 3 § 2. Title 21 of article 27 and section 71-2724 of the environmental 4 conservation law are REPEALED. 5 § 3. Article 15 of the environmental conservation law is amended by 6 adding a new title 35 to read as follows: 7 TITLE 35 8 MERCURY REDUCTION MANAGEMENT STRATEGY 9 Section 15-3501. Short title. 10 15-3503. Definitions. 11 15-3505. Publicly owned sewage treatment plants; regulation of 12 mercury. 13 15-3507. Publicly owned sewage treatment plants; control of 14 mercury. 15 15-3509. Point source release; mercury containment trap require- 16 ment. 17 15-3511. Exemption. 18 § 15-3501. Short title. 19 This title shall be known as "The Mercury Reduction Management Strate- 20 gy Act". 21 § 15-3503. Definitions. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04578-01-1A. 1661 2 1 For purposes of this title, the terms "effluent limitation" and "point 2 source" have the same meanings as are defined in section 17-0105 of this 3 chapter and the term "household" means private dwellings and multiple 4 dwellings as defined in section 4 of the multiple dwelling law. 5 § 15-3505. Publicly owned sewage treatment plants; regulation of mercu- 6 ry. 7 1. On or before December thirty-first, two thousand twelve, each 8 publicly owned sewage treatment works shall: 9 (a) measure the levels of mercury in effluent from publicly owned 10 treatment works using the United States environmental protection agen- 11 cy's test method; 12 (b) develop and implement a monitoring program to identify publicly 13 owned treatment works users that discharge wastewater containing mercu- 14 ry; and 15 (c) provide information on mercury discharges and the sources of 16 mercury discharges to the public through inserts in customer billing 17 statements. 18 2. (a) On or before December thirty-first, two thousand thirteen, the 19 department and each publicly owned treatment works shall use results 20 from the measurements performed and the monitoring program implemented 21 under subdivision one of this section to develop and implement a volun- 22 tary pollution prevention program. 23 (b) The purpose of the voluntary pollution prevention program is to 24 minimize the levels of mercury in the discharge of publicly owned treat- 25 ment works users to reflect the relative contribution of different 26 sources of mercury to the mercury levels in the publicly owned treatment 27 works effluent. 28 3. On or before December thirty-first, two thousand fourteen, the 29 department shall develop: 30 (a) an acceptable limit on the concentration of mercury in sewage 31 sludge and incinerator ash; 32 (b) effluent limitation on the discharge of mercury from publicly 33 owned treatment works that are no greater than the limits of detection 34 of the United States environmental protection agency's test method; and 35 (c) pretreatment standards that reflect the best available treatment 36 technology for each category of sources of mercury that have been deter- 37 mined to contribute to the discharge of wastewater containing mercury to 38 publicly owned treatment works. 39 § 15-3507. Publicly owned sewage treatment plants; control of mercury. 40 1. The department shall establish: 41 (a) an acceptable limit on the concentration of mercury in sewage 42 sludge and incinerator ash; 43 (b) effluent limitation on the discharge of mercury from publicly 44 owned treatment works that are no greater than the limits of detection 45 of the United States environmental protection agency's test method; and 46 (c) pretreatment standards that reflect the best available treatment 47 technology for each category of sources of mercury that have been deter- 48 mined to contribute to the discharge of wastewater containing mercury to 49 publicly owned treatment works. 50 2. A person shall not: 51 (a) discharge mercury through a publicly owned treatment works into a 52 body of water in excess of the effluent standards established under 53 subdivision 1 of this section; 54 (b) accept for disposal in a landfill sludge that contains mercury in 55 excess of the standards under subdivision 1 of this section;A. 1661 3 1 (c) discharge mercury into a wastewater treatment plant in excess of 2 the pretreatment requirements established under subdivision 1 of this 3 section; or 4 (d) apply to land any sewage sludge or incinerator ash that contains 5 mercury in excess of the concentration limits established under subdivi- 6 sion 1 of this section. 7 § 15-3509. Point source release; mercury containment trap requirement. 8 1. Any facility that has the potential for release of elemental mercu- 9 ry or a mercury containing substance into plumbing systems during its 10 normal daily operations, including but not limited to dental offices, 11 dental training or vocational schools, dental hospitals, mercury recycl- 12 ing centers, laboratories, and any other entity the department deter- 13 mines shall be considered a point source pursuant to article 17 of this 14 chapter, unless such facility shall place into service a mercury 15 containment trap as certified by the department. 16 2. The department shall promulgate regulations for the proper instal- 17 lation, maintenance, use, and certification of such mercury containment 18 traps. 19 § 15-3511. Exemption. 20 The provisions of subdivision 2 of section 15-3507 of this title shall 21 not apply to households until two years after this title takes effect. 22 § 4. Article 27 of the environmental conservation law is amended by 23 adding a new title 21 to read as follows: 24 TITLE 21 25 COMPREHENSIVE MANAGEMENT 26 OF WASTE MERCURY 27 Section 27-2101. Short title. 28 27-2103. Definitions. 29 27-2105. Disclosure of mercury content. 30 27-2107. Mercury-added product phase-out. 31 27-2109. Mercury disposal prohibition. 32 27-2111. Labeling of products containing mercury. 33 27-2113. Source separation. 34 27-2115. Collection. 35 27-2117. Elemental mercury. 36 27-2119. Removal from service; mercury-added products. 37 27-2121. Ban on toys, games, cosmetics, and apparel. 38 27-2123. Ban on distribution and sale of mercury thermometers. 39 27-2125. Replacement of mercury-added manometers and gas-pres- 40 sure regulators. 41 27-2127. Dental office requirements. 42 27-2129. Notification. 43 27-2131. Informed consent; dental procedures. 44 27-2133. Ban on health insurance discrimination. 45 27-2135. Lamp recycling facility requirements. 46 27-2137. Addition of all mercury-added products to state 47 universal wastes rules. 48 27-2139. State advisory committee on mercury pollution. 49 27-2141. Exemption. 50 § 27-2101. Short title. 51 This title shall be known as "The Comprehensive Management of Waste 52 Mercury Act". 53 § 27-2103. Definitions. 54 As used in this title:A. 1661 4 1 1. "Lamp recycling facility" means a facility operated to remove, 2 recover, and recycle for reuse mercury or other hazardous materials from 3 fluorescent or high intensity discharge lamps. 4 2. "Mercury-added product" means equipment or a product, device, or 5 instrument into which elemental mercury or mercury compounds are inten- 6 tionally added during its formulation or manufacture and in which the 7 continued presence of mercury is desired to provide a specific charac- 8 teristic or to perform a specific function, including but not limited 9 to: batteries; lamps; thermostats; thermometers; electric switches; 10 dental amalgams; appliances; gauges; medical or scientific instruments 11 or devices; electric or displacement relays; gas pressure regulators; 12 testing equipment; manometers; and any other electrical device from 13 which the added mercury has not been removed. 14 3. "Person" shall mean any entity, including but not limited to 15 natural persons, corporations, firms, limited liability companies, part- 16 nerships, state agencies, state authorities, and federal agencies. 17 4. "Household" means private dwellings and multiple dwellings as 18 defined in section 4 of the multiple dwelling law. 19 § 27-2105. Disclosure of mercury content. 20 A manufacturer or wholesaler shall not sell a mercury-added product at 21 retail in this state, to a retailer in this state, or for use in this 22 state without prior thereto notifying the commissioner in writing of the 23 amount of mercury in each retail-sized unit of the product, the total 24 amount of mercury in each type of product sold at retail in the state 25 each year by the manufacturer or wholesaler, and the essential-use 26 purpose that the mercury in the product serves. 27 § 27-2107. Mercury-added product phase-out. 28 1. A manufacturer, directly or through an agent, shall not sell a 29 mercury-added product at retail or wholesale in this state, to a retail- 30 er or wholesaler in this state, or for use in this state after January 31 first, two thousand fourteen unless the manufacturer has received a 32 "phase-out exemption" permit from the commissioner. 33 2. Upon making a determination that an application for a phase-out 34 exemption is complete, the commissioner shall provide a sixty day public 35 comment period on all applications for exemptions and shall hold a 36 public informational meeting, if such a meeting is requested. The 37 commissioner shall fully consider all written and oral submissions 38 concerning proposed exemptions prior to taking final action on a phase- 39 out exemption request. 40 3. The commissioner shall only grant a phase-out exemption upon deter- 41 mination of all of the following: 42 The mercury-added product is an essential use that is used where no 43 alternative non-mercury-added products are available that: 44 (a) perform the same function; 45 (b) are commercially available; 46 (c) are economically practical; and 47 (d) are more environmentally safe. 48 § 27-2109. Mercury disposal prohibition. 49 Mercury-added products shall not be placed in any of the following: 50 1. solid waste. 51 2. medical, infectious, or laboratory waste. 52 3. wastewater. 53 4. radioactive waste. 54 5. scrap metal processing or recycling streams. 55 § 27-2111. Labeling of products containing mercury.A. 1661 5 1 A manufacturer or wholesaler shall not sell at retail or wholesale in 2 this state, to a retailer or wholesaler in this state, or for use in 3 this state, and a retailer or wholesaler shall not knowingly sell in 4 this state, a mercury-added product, unless such product is labeled in a 5 manner to clearly inform a purchaser or consumer of such product that 6 mercury is present in the product and that the product may not be 7 disposed of in violation of the prohibitions established under section 8 27-2109 of this title. 9 § 27-2113. Source separation. 10 Every person who discards solid waste, medical waste, infectious 11 waste, laboratory waste, radioactive waste, or wastewater within the 12 state or who places scrap metal in a reprocessing or recycling stream 13 within the state shall ensure that the waste or scrap metal does not 14 contain mercury above naturally occurring background levels. Any person 15 who replaces, removes, or transports mercury-added products is responsi- 16 ble for the proper management of any discarded mercury-added product. 17 § 27-2115. Collection. 18 The manufacturer of a mercury-added product shall: 19 1. Provide a system for the collection of such product from users in 20 this state. 21 2. Clearly inform each purchaser of a mercury-added product of all of 22 the following: 23 (a) Details concerning the available system for proper collection of 24 the product. 25 (b) That state law prohibits charging a fee for collection of the 26 product. 27 (c) That disposal of the product is prohibited in solid waste, medical 28 waste, infectious waste, laboratory waste, radioactive waste, or waste- 29 water, as is placement of the product in a scrap metal reprocessing or 30 recycling stream. 31 3. The department shall promulgate regulations to implement this 32 section. 33 § 27-2117. Elemental mercury. 34 1. Sale. A person shall not sell mercury to another person in this 35 state without providing a material safety data sheet, as defined in 42 36 U.S.C. 11049. 37 2. Use. A person who uses elemental mercury in any application shall 38 not place, or deliver the mercury to another person who places, resi- 39 dues, particles, scrapings, or other materials that contain mercury in 40 solid waste, medical waste, infectious waste, laboratory waste, radioac- 41 tive waste, wastewater, or hazardous waste, except for traces of materi- 42 als that may inadvertently pass through a filtration system during a 43 dental procedure. 44 3. The department shall adopt regulations in relation to allowed trace 45 point source releases of elemental mercury and mercury containing 46 substances. 47 § 27-2119. Removal from service; mercury-added products. 48 1. When a mercury-added product is removed from service, the mercury 49 in the item shall be source-separated for stabilization for retirement 50 or otherwise managed to prevent its release into the environment. The 51 commissioner shall, by regulation, provide for the use of mercury, and 52 permit mercury that has been source separated to be recycled for 53 purposes of reuse, in products that have received a phase-out exemption 54 permit from the commissioner pursuant to section 27-2107 of this title. 55 2. A person who is in the business of replacing or repairing a mercu- 56 ry-added product in households shall deliver, or cause to be delivered,A. 1661 6 1 any item in need of replacement to a manufacturer's collection system 2 pursuant to section 27-2115 of this title. 3 3. The department shall promulgate regulations for the proper removal 4 from service and source-separation of mercury-added products, including, 5 but not limited to, automobiles, buildings, home or commercial appli- 6 ances, and fluorescent lamps. 7 § 27-2121. Ban on toys, games, cosmetics, and apparel. 8 A manufacturer or wholesaler shall not sell at retail in this state, 9 to a retailer in this state, or for use in this state, and a retailer 10 shall not sell in this state, a mercury-added toy or game, or mercury- 11 added cosmetics, or any item of clothing or wearing apparel that 12 contains a mercury-added electric switch. 13 § 27-2123. Ban on distribution and sale of mercury thermometers. 14 No person shall distribute free of charge or sell a mercury-added 15 fever thermometer. Such thermometers shall be prohibited from being sold 16 at retail as of January first, two thousand thirteen. 17 § 27-2125. Replacement of mercury-added manometers and gas-pressure 18 regulators. 19 1. The department of agriculture and markets shall develop a program 20 to replace mercury-added manometers used for dairy purposes with non- 21 mercury manometers for such purposes. The mercury, manometers, and 22 apparatus shall be managed in accordance with this title. 23 2. (a) No person, public or private utility, or contractor shall use 24 mercury-added gas-pressure regulators to monitor, regulate, or test 25 vaporized gasses, including, but not limited to, those devices contained 26 within natural gas lines. 27 (b) The department shall promulgate regulations for the proper removal 28 of mercury-added gas-pressure regulators. Such regulations shall require 29 those entities engaged in the use of mercury-added gas-pressure regula- 30 tors to conduct a test for the presence of mercury after removal of such 31 mercury-added gas-pressure regulators within a time period specified by 32 the department. 33 (c) Upon the implementation of this title, priority shall be assigned 34 to removal of those mercury-added gas-pressure regulators located within 35 households and commercial premises. 36 (d) Notification. Any utility using mercury-added gas-pressure regula- 37 tors within households or commercial premises shall notify owners of 38 such properties of the existence of such mercury-added gas-pressure 39 regulators and shall notify owners of the dangers posed by the presence 40 of mercury. The department shall promulgate regulations providing for 41 notification requirements. 42 3. (a) No person, public or private utility, or contractor shall use 43 mercury-added testing equipment. For the purposes of this section, 44 "mercury-added testing equipment" means any device containing mercury 45 used for purposes of testing pressure, including, but not limited to, 46 natural gas lines. This includes hand-held, portable, or stationary 47 testing equipment containing mercury, including, but not limited to, 48 mercury-added manometers and mercury-added gauges. 49 (b) The department shall promulgate regulations for the proper removal 50 from service of mercury-added testing equipment, including testing for 51 presence of mercury within dwellings known or possibly known to have 52 been tested using mercury-added testing equipment. 53 § 27-2127. Dental office requirements. 54 Each dental office is required to submit an annual amalgam mercury 55 report describing quantities of all sources stored and recycled: includ- 56 ing chair-side traps, clean scrap, elemental mercury, amalgam sludge,A. 1661 7 1 and mercury containment traps. The department shall provide by regu- 2 lation therefor. 3 § 27-2129. Notification. 4 Every dentist shall display, in boldface print, in the English and 5 Spanish language, and in a conspicuous place within such dentist's 6 office, a notice stating the following: 7 "This office uses amalgam filling materials which contain and expose 8 you to mercury, a chemical known to the State of New York as a toxin 9 linked to neurological and developmental defects. Additionally, scien- 10 tific studies of mercury-containing amalgam use have shown that a 11 significant health hazard exists for pregnant women and children under 12 the age of 15. Safe alternatives to mercury-containing amalgams exist. 13 Please consult your dentist for more information." 14 § 27-2131. Informed consent; dental procedures. 15 No dentist shall use mercury or mercury amalgam in a dental procedure 16 unless, prior to the use, the dentist certifies in writing that the 17 patient gave informed consent thereto freely and without coercion. Such 18 informed consent shall be provided in writing and required for each 19 dental office visit in which the procedure involves the use of mercury 20 amalgam and shall contain the following statement in boldface print: 21 "I consent to the use of mercury containing amalgam in this dental 22 procedure. I have been informed that the amalgam to be used in this 23 procedure contains mercury, a chemical known to the State of New York as 24 a toxin linked to neurological and developmental defects. Additionally, 25 I have been informed that scientific studies of amalgam containing 26 mercury have shown that a significant health hazard exists for pregnant 27 women and children under the age of 15. I have also been informed that 28 safe alternatives to amalgam containing mercury exist." 29 § 27-2133. Ban on health insurance discrimination. 30 No health insurance policy or contract shall in any way discriminate 31 against amalgams that do not contain added mercury. 32 § 27-2135. Lamp recycling facility requirements. 33 No person shall operate a lamp recycling facility without obtaining a 34 permit for the facility from the commissioner, issued by the commission- 35 er no later than nine months after the effective date of this title. 36 § 27-2137. Addition of all mercury-added products to state universal 37 wastes rules. 38 The commissioner shall promulgate the universal wastes rules for 39 mercury-added thermostats and shall add all mercury-added products to 40 its universal wastes rules within one year of the effective date of this 41 title. 42 § 27-2139. State advisory committee on mercury pollution. 43 1. There is created an advisory committee on mercury pollution, to 44 consist of one appointee of the temporary president of the senate, one 45 appointee of the speaker of the assembly, the commissioner (or his or 46 her designee), the commissioner of health (or his or her designee), and 47 the following persons appointed by the governor: one public health 48 specialist, one toxicologist, one representative of a Native American 49 tribe or group, one scientist who is knowledgeable on matters related to 50 mercury contamination, one children's advocate, and one consumer advo- 51 cate. The advisory committee shall advise the legislature and the execu- 52 tive branch on matters relating to the prevention and cleanup of mercury 53 pollution and the reduction in human exposure to mercury. 54 2. By January fifteenth of each year, beginning in two thousand 55 twelve, the advisory committee shall submit a report to the legislature 56 regarding:A. 1661 8 1 (a) The extent of mercury contamination in the soil, waters, and air 2 of the state. 3 (b) The extent of any health risk from mercury contamination in the 4 state, especially to women of childbearing years, children, Native Amer- 5 icans, sports fishers, and subsistence fishers; and ways to reduce human 6 exposure to mercury. 7 (c) All methods available for minimizing risk of further contamination 8 or increased health risk to the public. 9 (d) Coordination needed with other states to effectively address 10 mercury issues and pollution. 11 (e) Ways to eliminate nonessential uses of mercury in health care 12 institutions, government buildings, and consumer and business uses. 13 (f) Ways to reduce the waste disposal, wastewater disposal, and waste 14 incineration of mercury-added products and the extent to which solid 15 waste and medical waste are incinerated or autoclaved within the state 16 or sent out of state for such purposes. 17 § 27-2141. Exemption. 18 The provisions of section 27-2113 of this title shall not apply to 19 households until two years after this title takes effect. 20 § 5. The environmental conservation law is amended by adding a new 21 section 71-2730 to read as follows: 22 § 71-2730. Penalties for violations of title 21 of article 27 and title 23 35 of article 15. 24 1. For a first violation of title 21 of article 27 and title 35 of 25 article 15 of this chapter, in lieu of a penalty, a violator shall be 26 issued a written warning by the department and shall also be issued 27 educational materials at the discretion of the department. Such person 28 shall, however, for a second violation, be liable to the people of the 29 state for a civil penalty not to exceed seventy-five dollars for each 30 violation, which in the aggregate shall not exceed: 31 a. Two hundred twenty-five dollars for households, to the extent that 32 the violation involves only the improper placement of the waste produced 33 by the person or persons within such dwelling. 34 b. Ten thousand dollars for manufacturers of mercury-added products or 35 distributors or providers of elemental mercury. 36 c. Five thousand dollars for all other violators. 37 2. Such civil penalty shall be in addition to any other penalties 38 authorized under other federal, state, or local laws governing the ille- 39 gal disposal, sale, resale, or distribution of elemental mercury or 40 mercury-added products. The criminal penalties set forth in section 41 71-4001 of this article shall not apply to violations of title 21 of 42 article 27 or title 35 of article 15 of this chapter. 43 3. Penalties under this section shall be assessed by the commissioner 44 after a hearing or opportunity to be heard pursuant to the provisions of 45 section 71-1709 of this article, and, in addition thereto, any person 46 found to have violated the provisions of title 21 of article 27 or title 47 35 of article 15 of this chapter may by similar process be enjoined from 48 continuing such violation. For the purposes of this section, the unlaw- 49 ful sale, resale, distribution, or disposal of each item containing 50 mercury shall constitute a separate violation. 51 4. All civil penalties and fines collected for any violation of title 52 21 of article 27 or title 35 of article 15 of this chapter shall be paid 53 over to the commissioner for deposit in the general fund of the state. 54 5. For purposes of this section, "household" means private dwellings 55 and multiple dwellings as defined in section 4 of the multiple dwelling 56 law.A. 1661 9 1 § 6. Section 16 of the agriculture and markets law is amended by 2 adding a new subdivision 45 to read as follows: 3 45. Establish a program to replace mercury-added manometers used for 4 dairy purposes with non-mercury manometers for such purposes pursuant to 5 section 27-2125 of the environmental conservation law. 6 § 7. The insurance law is amended by adding a new section 3240 to read 7 as follows: 8 § 3240. Dental amalgam nondiscrimination. No health insurance policy, 9 contract, or benefit, whether subject to this article or article forty- 10 three or forty-four of this chapter, shall discriminate in regard to 11 dental amalgams in violation of section 27-2133 of the environmental 12 conservation law. 13 § 8. Subdivision 3 of section 92-s of the state finance law, as 14 amended by section 2 of part T of chapter 59 of the laws of 2009, is 15 amended to read as follows: 16 3. Such fund shall consist of the amount of revenue collected within 17 the state from the amount of revenue, interest and penalties deposited 18 pursuant to section fourteen hundred twenty-one of the tax law, the 19 amount of fees and penalties received from easements or leases pursuant 20 to subdivision fourteen of section seventy-five of the public lands law 21 and the money received as annual service charges pursuant to section 22 four hundred four-l of the vehicle and traffic law, all moneys required 23 to be deposited therein from the contingency reserve fund pursuant to 24 section two hundred ninety-four of chapter fifty-seven of the laws of 25 nineteen hundred ninety-three, all moneys required to be deposited 26 pursuant to section thirteen of chapter six hundred ten of the laws of 27 nineteen hundred ninety-three, repayments of loans made pursuant to 28 section 54-0511 of the environmental conservation law, all moneys to be 29 deposited from the Northville settlement pursuant to section one hundred 30 twenty-four of chapter three hundred nine of the laws of nineteen 31 hundred ninety-six, provided however, that such moneys shall only be 32 used for the cost of the purchase of private lands in the core area of 33 the central Suffolk pine barrens pursuant to a consent order with the 34 Northville industries signed on October thirteenth, nineteen hundred 35 ninety-four and the related resource restoration and replacement plan, 36 [ the amount of penalties required to be deposited therein by section37 71-2724 of the environmental conservation law,] all moneys required to 38 be deposited pursuant to article thirty-three of the environmental 39 conservation law, all fees collected pursuant to subdivision eight of 40 section 70-0117 of the environmental conservation law, [ as added by a41 chapter of the laws of two thousand nine,] all moneys collected pursuant 42 to title thirty-three of article fifteen of the environmental conserva- 43 tion law, [ as added by a chapter of the laws of two thousand nine] and 44 all other moneys credited or transferred thereto from any other fund or 45 source pursuant to law. All such revenue shall be initially deposited 46 into the environmental protection fund, for application as provided in 47 subdivision five of this section. 48 § 9. This act shall take effect on the first of January next succeed- 49 ing the date on which it shall have become a law. Effective immediately 50 the commissioner of environmental conservation is authorized to promul- 51 gate any and all rules and regulations and take any other measures 52 necessary to implement this act on its effective date on or before such 53 date.