Relates to mercury in products and toxicity in packaging

Section 2 of this bill amends ECL §37-0201 to make technical corrections to the legislative findings and intent for ECL Article 37, Title 2 (Hazardous Packaging Act of 1990).

Section 3 of this bill amends ECL §37-0203 to clarify existing definitions, and add definitions for "distribution," "incidental presence," "intentional introduction" or "intentionally introduced," "manufacturing," "purchaser" and "supplier."

Section 4 of this bill amends ECL §37-0205 to prohibit the sale, offer for sale, or distribution of packaging and packaging components in which lead, cadmium, mercury or hexavalent chromium was intentionally introduced in the manufacturing process of the packaging or packaging components, and to provide that the incidental presence of any of these elements shall not constitute an intentional introduction.

Section 5 of this bill amends ECL §37-0207 to make technical changes to the existing exemptions to ECL Article 37, Title 2.

Section 6 of this bill adds a new ECL §37-0208 to establish requirements for a "Certificate of Compliance" to be furnished by any manufacturer, distributor or supplier of packages and packaging components to every purchaser.

Section 7 of this bill amends ECL §37-0209(2) to make conforming amendments to reflect the new Certificate of Compliance requirements of ECL §37-0208.

Section 8 of this bill adds a new ECL §37-0210 to clarify how a member of the public may request a certificate of compliance from a manufacturer, distributor or supplier.

Section 9 of this bill amends ECL §37-0211 to authorize the Department of Environmental Conservation (DEC) to periodically review the effectiveness of ECL Article 37, Title 2 in consultation with the Toxics in Packaging Clearinghouse.

Section 10 of this bill adds a new ECL § 37-0215 to add a severability clause to ECL Article 37, Title 2.

Section 11 of this bill provides that the bill takes effect on the 90th day after it becomes a law.

Existing law

ECL Article 27, Title 21 restricts the sale, labeling and disposal of mercury-added consumer products Title 21 excludes button batteries from the definition of mercury-added consumer products.

ECL Article 37, Title 2 (Hazardous Packaging Act of 1990) regulates the use of lead, cadmium, mercury and hexavalent chromium when used in packaging, consistent with an early version of the Model Toxics in Packaging Legislation (Model Legislation) developed by the Coalition of Northeastern Governors (CONEG). New York has not adopted the 1994, 1998 or 2004 updates to the Model Legislation.

Justification

ECL §27-2105 regulates the disposal of mercury-added consumer products by any person. In general, it requires the disposal of mercury-added consumer products by separated delivery to a solid waste management facility or hazardous waste management facility.

Under existing law, mercury-added consumer products include batteries sold to consumers, but not "button" batteries. See ECL §§27-2101(7) and (8). Thus, button batteries are exempted from the management and disposal requirements of ECL § 27-2105. There is no compelling justification for singling-out and exempting button batteries from the requirements of Title 21 when other batteries are subject to the law.

Packaging comprises approximately one-third of the waste stream By updating and continuing the provisions of ECL Article 37, Title 2, we will continue to reduce the amount of lead, mercury, cadmium, and hexavalent chromium entering the municipal solid waste stream and incinerators, which in turn, will lower their harmful presence in the environment.

By adopting the original Hazardous Packaging Act of 1990, the New York Legislature has recognized that lead, mercury, cadmium, and hexavalent chromium pose a hazard to public health and safety and the environment and pose a concern when they are present in packaging in light of their likely presence in emissions or ash when packaging is incinerated, or in leachate when discarded packaging is landfilled.

Created in 1976, CONEG is a non-partisan association of the Governors of eight Northeastern states Members include the Governors of Connecticut, Maine, Massachusetts, New Hampshire. New Jersey. New York, Rhode Island and Vermont CONEG encourages intergovernmental cooperation in the Northeast on shared issues relating to the economic, environmental and social well-being of the Northeast states The Model Legislation was originally drafted in 1989 by the Source Reduction Council (predecessor to the Source Reduction Task Force) of CONEG The Toxics in Packaging Clearinghouse (TPCH) was established in 1992 to promote the Model Legislation originally adopted by CONEG Membership in the TCPH extends beyond the Northeastern states; all states which implement toxics-in-packaging legislation are encouraged to join the TPCH. The Model Legislation requires affected industries to self-certify their compliance with the law in each member state and also allows exemptions for certain packages meeting specific criteria. The TPCH has helped to ease each state's administration of its toxics-in-packaging law and disseminates information about the Model Legislation to other states and interested parties. It coordinates implementation of the states' toxics-in-packaging law provisions through joint consideration of exemptions and/or clarifications, and minimizes the administrative process for states and applicants through a centralized location for receipt and processing of written requests for exemptions. The TCPH serves as a central point of contact to promote consistency and uniform administration and enforcement of each member state's law.

Nineteen states (California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin) and several countries have adopted the Model Legislation, Not all of these states are members of the TPCH. All of the TPCH member states besides New York (California, Connecticut, Illinois, Iowa, Maine, Minnesota, New Hampshire, Rhode Island, and Washington) have adopted most of the 1994 and 1998 revisions to the Model Legislation in some form and several states are in the process of adopting the 2004 revisions to the Model Legislation, which made permanent the exemption for glass and ceramic packages with vitrified labels, and specified a sample preparation method for determining compliance with this exemption.

The adoption of the updates to the Model Legislation through this bill with continue to advance the Legislature's goal of reducing the toxicity of packaging waste by eliminating the addition of these heavy metals to packaging without impeding the use of recycled materials in the production of packaging and packaging components. The adoption of these updates to the Model Legislation will also allow New York and other jurisdictions in this country and abroad to control the level of these four toxic heavy metals that are found in packaging that the public purchases everyday on a uniform basis nationally and internationally.

Legislative history

2007-2008: S.8253 ECL Article 27, Title 21 was enacted by Chapter 145 of the Laws of 2004. Title 21 was amended by Chapter 676 if the Laws of 2005 (to make technical revisions, add several new definitions for types of mercury-containing devices, and add additional prohibitions to capture new devices) and Chapter 611 of the Laws of 2006 (to add ECL §27-2117 to phase-out mercury-added components in motor vehicles). ECL Article 37, Title 2 has not been revised since originally enacted in 1990. In 2000, the Legislature introduced bills (A.291 (John)/S.4915 (Marcellino)) to update the law to incorporate the 1994 revisions to the Model Legislation adopted by CONEG. The bill passed the Senate several years but never passed the law to include both the 1994 and 1998 updates to the Model. The bill was introduced again in 2003 (S.1798-A (Marcellino)), but it not advance from committee.

Fiscal implications

Minimal.

Effective date

This bill takes effect on the 90th day after it becomes a law.