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Presentations May 23 – 25, 2005 Portland, Maine For related information visit: http://www.newmoa.org/prevention/mercury/conferences In the beginning . . . . MN Labeling

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Presentations

May 23 – 25, 2005

Portland, Maine

For related information visit:

http://www.newmoa.org/prevention/mercury/conferences


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In the beginning . . . .

MN

  • Labeling

  • Lamps -inform the purchaser on the invoice

  • Ban on toys

  • Ban on mercury manometers


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Minnesotahttp://www.moea.state.mn.us/


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Vermont’s 1998/1999 Legislation

  • All mercury-added products manufactured after March 1, 2000 must be labeled.

  • Manufacturers provide a Certified Labeling Plan

    • Detailed descriptions of the products

    • Label size & material

    • Label wording

    • Label location and attachment method



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VT Labeling Law

  • Label:

    • Product

    • Prior 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 lamp



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MODEL LEGISLATION

  • Comprehensive:

    Designed to achieve virtual elimination goal

  • Regional:

    Promotes consistency across the states

  • Menu:

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


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Labeling Model / VT Labeling

  • Model Label:

    • Product

    • Component

    • Prior to purchase

    • Package

  • Products to be labeled:

    • Fabricated products

    • Formulated products

  • Responsibility

    • Final manufacturer

  • Vermont Label:

    • Product (Component)

    • Prior to purchase (Package)

  • Products to be labeled:

    • Vermont list

  • Responsibility

    • Manufacturer of product


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States that followed . . .

MAINE

Vermont’s List

Lamps on Invoice

OREGON

Thermostats

WASHINGTON

Lamps


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More states that followed . . .

RHODE ISLAND

Model Legislation

Lamps on Invoice

No Batteries

CONNECTICUT

Model Legislation

Lamps

Products w/Batteries

NEW YORK

Model Legislation

Lamps

Batteries

Developing Rules


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CONNECTICUT ELECTRONICS LABELING

VERMONT 2007 ELECTRONICS LABELING

  • Non-replaceable +7”

    • ProductorCare & Use

    • Component (lamp)

    • Package orCare & Use

  • Non-replaceable  7”

    • Product orCare & Use

    • Component (lamp)

    • Package orCare & Use

  • Non-replaceable +7”

    • Product

    • No (lamp) label

    • Care & Use

  • Non-replaceable  7”

    • Care & Use

    • No (lamp) label


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CONNECTICUT ELECTRONICS LABELING

VERMONT 2007 ELECTRONICS LABELING

  • Replaceable lamps

    • Product

    • Package or Care & Use

    • Visible prior to purchase

  • Replaceable lamps

    • Product

    • Package

    • Care & Use (if any)

    • Visible prior to purchase


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What’s the difference?

  • Products with button cell batteries

    • Connecticut and New York

  • Medical products

    • Vermont and New York


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Contact Information

KAREN KNAEBEL

(802) 241-3455

[email protected]


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Presentations

May 23 – 25, 2005

Portland, Maine


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Legal Issues & Challenges with Mercury Reduction & Labeling Laws

Jon Hinck

Natural Resources Council of Maine

May 24, 2005

ACHIEVING MERCURY REDUCTION IN PRODUCTS & WASTE:

COORDINATING NATIONAL & LOCAL GOVERNMENT INITIATIVES CONFERENCE


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TWO CASE STUDIES:

  • MAINE'S AUTO SWITCH LAW

    38 M.R.S.A. §1665-A(1) (2002)

  • VERMONT'S MERCURY LABELING LAW

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


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Origins of Maine’s Mercury Switch Law

  • Mercury Products law enacted in 2000 requiring:

    • Labeling and

    • Recycling

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

  • DEP directed to develop a plan for auto switches


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Enactment of Maine Auto Switch Law, 38 M.R.S.A. §1665-A(1)

In April 2002, Maine

enacts law that requires

automakers to:

  • set-up a statewide system to collect, consolidate and recycle mercury-added switches

  • pay a $1 per switch bounty to car recyclers


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Key Elements of the Maine Law

  • Shared Responsibility for removal and recycling of Hg switches :

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


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Key Elements of the Maine Law Continued

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

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


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Implementation by Automakers

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


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Elements of AAM plan(covering most of the fleet)

  • Two consolidation locations—Portland and Bangor.

  • Party delivering switches to these locations must:

    1. Provide VINs for each source vehicle; and

    2. Certify that source vehicles were dismantled in Maine.


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

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

  • (1) “Dormant” Commerce;

  • (2) Equal Protection; and

  • (3) Due Process


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AAM v. Kirkpatrick

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

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


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AAM v. Kirkpatrick Analysis

The opinion 

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


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AAM v. Kirkpatrick Analysis

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


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AAM v. Kirkpatrick Analysis

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


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AAM v. Kirkpatrick Analysis

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


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AAM v. Kirkpatrick Analysis

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


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AAM v. Kirkpatrick AnalysisNo violation of Due Process and Equal Protection

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


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AAM v. Kirkpatrick AnalysisNo violation of Due Process and Equal Protection

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


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AAM v. Kirkpatrick Analysis

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


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Vermont Mercury Labeling Law

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


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Vermont Mercury Labeling Law

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


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Nat’l Elec. Mfgs (NEMA) v. Sorrell

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

  • NEMA sought to enjoin enforcement of the labeling requirement.


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NEMA v. Sorrell

  • NEMA claims:

  • Labeling requirement violates its members' constitutional rights under the:

  • (1) Commerce;

  • (2) Supremacy; and

  • (3) Due Process Clauses, and

  • (4) the First Amendment.


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NEMA v. Sorrell,

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

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


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NEMA v. Sorrell Analysis (Commerce Cl.)

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


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NEMA v. Sorrell Analysis (Commerce Cl.)

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


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NEMA v. Sorrell Analysis (Commerce Cl.)

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


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NEMA v. Sorrell Analysis (Commerce Cl.)

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


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NEMA v. Sorrell Analysis (1st A.)

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


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NEMA v. Sorrell Analysis (1st A.)

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


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NEMA v. Sorrell Analysis (1st A.)

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


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NEMA v. Sorrell Analysis (1st A.)

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


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What are our options?

Three Categories of Mercury Legislation:

1)     Bans on sale and distribution of mercury-added products;

2)     Manufacturer responsibility for recovery and recycling; and

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


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Warning

TOXIC FISH