Vermont Agency of Natural Resources
Advisory Committee on Mercury Pollution

Advisory Committee on Mercury Pollution

Meeting #23: Thursday, November 30, 2000
Time: 9:00 a.m.-11:30 a.m.
Location: Training Room, Department of Environmental Conservation
Waterbury State Complex, Waterbury, Vermont

MINUTES

Members Present:
Rich Phillips, Vermont Agency of Natural Resources, Environmental Assistance
Michael Bender, Abenaki Self-Help Association, Inc.
William Bress, Vermont Department of Health
Ric Erdheim, National Electrical Manufacturers Association
Henrietta Jordan, House Natural Resources and Energy Committee
Neil Kamman, Agency of Natural Resources, Water Quality Division

Guests Present:
Milly Archer, Downs, Rachlin & Martin
Allison Crowley-Demag, New England Public Affairs Group
Julie Hackbarth, Vermont Agency of Natural Resources, Waste Management Division
Rebecca D. Ramos, National Wildlife Federation
Karen Knaebel, Vermont Agency of Natural Resources, Environmental Assistance

The Committee members and interested parties gathered in the Training Room of the Department of Environmental Conservation in the Waterbury State Complex in Waterbury, Vermont and the meeting was called to order by Rich Phillips

Agenda Item 1-
Accept minutes of the October 23rd meeting and changes to today’s agenda.

Acceptance of minutes of the October 23, 2000 meeting was deferred for review to the next meeting.

Agenda Item 2-
Review comments from stakeholder meeting and outside comments

The Committee reviewed the Summary of Stakeholder written comments.

General Comments on Proposed Legislation:

(NWF)
Suggest 2010 Virtual elimination goal.

Comments:

• Some question as to whether such a goal should be placed in the legislation.
• Package Committee is working on is one piece of the process for virtual elimination.
• Question as to whether Committee wants to add a dated goal.
• Department does not believe this needs to be stated directly in legislation.
• Suggestion that New England Governors and Vermont Governor have both shown an interest and a willingness to establish a date-certain goal for virtual elimination. Perhaps, the Committee could at least commit to a time by which a commitment could be made if a specific date for a goal is not included.
• Concern that goals are not effective without a time.
• Question as to whether this might be included rather as a "policy statement."
• Suggestion that goal may not be stated more than indicated in Section 2(j) saying by implication that the Committee is endorsing a goal. The target date would give the goal some life.
• Suggestion that there is no definition of "virtual elimination" and therefore there is no reference for a targeted goal.
• Comment that there is no dated goal in the Governors’ recommendations for virtual elimination.
• Suggestion that with no regional date established, perhaps to pursue the concept of virtual elimination without a date.
• Question as to whether including a target date would impede the legislation.
• Vermont has taken a leadership role on a lot of mercury issues and there have been references and inferences regarding Governor Dean of Vermont as to his support of the virtual elimination goal.
• Suggestion to add language by date certain for a virtual elimination goal.
• Suggestion to put in legislative recommendation report.
• Suggestion to introduce resolution on the date of the card room presentation.
• Suggestion that setting a goal, even if placed in the body of the legislation, is not a requirement -- it is a policy statement.
• Suggestion that Committee make a recommendation that Agency needs to make stronger statements that "virtual elimination" is a goal and to set those goals.
• Suggestion to add that the General Assembly finds that the achievement of attaining this goal is essential to the health of the people of Vermont.
• Ric Erdheim opposes this suggestion.
• Suggestion that the information would provide a meaning to regulators.
• Suggestion that the information could not provide a meaning as virtual elimination is not quantified.
• Suggestion made by Bill Bress that "virtual elimination" is defined.
• Suggestion to support the concept of "virtual elimination."
• Michael Bender does not support including the "concept" of virtual elimination.
• Suggestion that the term "virtual elimination" has been established in National and International agreements.
• Suggestion that a statement be placed in findings and also that the Agency also focuses on the goal.

Rich Phillips to draft language to add to finding 2(j) that the legislative support the goal as necessary for the health and safety of Vermonters, directs the Agency of Natural Resources to lead towards the goal and include no attainment date.

(NWF)
Oppose exclusion of Section 10 of the model "collection of mercury added products" Manufacturers have resources to implement collection programs. Necessary for successful implementation of disposal ban.

Comments:

• Suggestion by Rich Phillips that introduction of Section 10 be postponed for introduction into the legislature at a later date. First there are existing infrastructures in place and since there are so many other issues included in this legislation, the Department recommends delay of this until a later date. Second, there are other activities such as a product stewardship group in Massachusetts that are pushing this issue and there may potentially be policies and procedures that come out of these processes.
• Suggestion that elimination of this section is too inconsistent with the regional approach. Reference was made to the Governor’s Action Plan and NEWMOA’s 6/26/2000 response on page 15 to clarify the role of existing recycling systems…intent is to allow manufacturers flexibility… Urge Committee that the legislature does not go back and revisit the issue if it is left out now. The Solid Waste Districts cannot stand up to another local, unfunded mandate adding products to existing legislation without funding to supplement the burdens of additional products.
• Concern that this section is the key to making certain that the manufacturers take financial responsibility for disposal in that it would prompt them to seek alternative products, and they would be directed to take responsibility for proper disposal of their products.
• Rich Phillips suggested that this what not a matter of "if" but a matter of "when" this would be dealt with.
• Julie Hackbarth reminded the Committee that Jen Holiday had attended these meetings and expressed that she felt this Section would require significant changes in order to be effective in Vermont
• Michael Bender feels that not including this section is a major omission and urges the Agency to reconsider its position. Although he understands the Agency’s position he would suggest that it be made a priority to be addressed in the future.
• NWF believes that this section could be considered as a bargaining piece.
• Suggestion to add language to (j) or (k) to expand the effectiveness of existing take-back programs based on capture rate date.
• Suggestion to add additional language to (k) that expresses legislative desire for further pursuit for manufacturer programs. That the Agency encourage and facilitate the development of manufacturer collection programs and provide a regional leadership role.

Rich Phillips to make a cut of this language and e-mail to Committee for review.

(NWF)
Opposes exclusion of Section 12 of the model regarding requirement for certificates of analysis of mercury containing products in hospitals.

Comments:

• Suggestion that there may be information already available according to information received by New Hampshire.
• Suggestion that other types of industries are required to supply all types of reduction plans, but not hospitals.
• Suggestion that language exists (i.e."the agency shall provide guidance") would allow for any information regarding certificates of analysis. Neil Kamman believes that the reduction plan is more important.

Committee determined to leave the wording in Section 12 as indicated in the Committee’s Draft and that the Agency would follow the activities of the states regarding the certificates of analysis.

(VPIRG)
Crucial to establish a point in time at which the state expects to achieve virtual elimination.

Comments:

• Discussed above.

(CLF)
Believes there should be a consistency among the states.

The Committee agrees with this concept.

(Dept. of Agriculture)
Recommends $40,000 allocation from general fund to cover the cost manometer removal, replacement and disposal of remaining manometers.

Committee concluded to make this recommendation in the Committee’s Annual Report to the Legislature.

Subsequent to the 11/30 Committee meeting, Annie MacMillan of the Department of Agriculture, Food and Markets indicated Commissioner Leon Graves wants the $40,000 in the bill. This would have to be added in the appropriations section which we have not yet dealt with.

(EIA)
Wishes to work with Committee to devise a more sensible approach to reducing mercury risks from electronic equipment.

Comments:

• The Agency believes this should be dealt with under the proposed legislation and not with exemptions.
• The alternative labeling in the legislation can structure for individual sectors.

(AIAM)(Alliance of Automobile Manufacturers)
Ford and GM proposed to eliminate convenience lighting switches by 2002.

Comments:

• Chrysler reportedly has already eliminated the switches.
• Concern that this promise was previous expressed. Committee is hopeful that this elimination in vehicles will come to pass.

(VRA)
Opposes the exclusion of collection systems as outlined in the model legislation.

Comments:

• Encouraging that state trade association is supporting legislation.
• Comments regarding this listed above under General.

Section 2 - Declarations:

(NWF)
Include in (p) "in furtherance of the committee’s goal of the virtual elimination of the discharge of anthopogenic mercury into the environment:

Comments:

• See comments in general section on this issue.

(EIA)
Disagree with the finding concerning labeling.

Comments:

• EIA questions the value of labels.

A majority of the Committee believes that labeling is a critical element of Information and Education for customers and that it can be appropriately modified by alternative submitted to meet the requirements of various sales methods.

Section 3 - Definitions:

(NWF)
Add "only" after Section 5 regarding definition of manufacturer.

Consensus that wording is changed to include the word "only."

(VRA)
Suggests that a retailer could potentially be a manufacturer as an "importer" or "domestic distributor." Concern that retailer may have to label as a manufacturer. (Notification, Labeling and other requirements)

Comments:

• Suggestion that there may be no way around this issue. If a retailer falls under these criteria, then they are responsible to insure that the product is labeled.

Consensus to leave wording as it is in the draft.

Section 4 – Interstate Clearing House:

(AIAM) (Alliance of Automobile Manufacturers)
Supports clearing house provided it is the sole location for submission of applications and materials.

Comments:

• Work is being done to establish the clearinghouse. This comment will be considered during the establishment of the clearinghouse.

The consensus of the Committee is to support the clearinghouse wherever it may be located and to reduce the administrative burden where reasonable.

Section 5 – Notification:

(NWF) – (VPIRG)
(e)Include specific, limited and verifiable criteria for determining what constitutes confidential business information.

The Agency will discuss this with their attorney for guidance as this section and advise the Committee by E-mail.

(f)Clarify language in describing exclusion of particular manufacturers from notification.

Rich Phillips will draft language to try to clarify this section and E-mail to members for their review.

(VSDS)
Recommends exemption for dental amalgam.

Comments:

• Two options to proceed – Leave as it is where amalgam is subject to phase out after two years, subject to labeling or alternative notification where at a minimum notice would be given to the client or perhaps a notification posted on the wall.
• Concern that amalgam has too much of an environmental impact to exempt.
• Suggestion to address the issue of traps.
• Suggestion to address amalgam in a separate section specific to amalgam.
• Suggestion that the dentists could report on a voluntary basis to demonstrate that mercury is not going into the environment, submit some sort of plan.
• Suggestion that the Committee needs to demonstrate that it is serious and to prompt dentists to suggest alternative solutions.
• VPIRG has suggested that the Committee consider requiring dentists to show they have traps in every dentist chair. The question is whether they have amalgam separators in their offices.
• Suggestion that the legislation remains the same and allows the dentists to provide information to the legislature and the legislature would make the final decision.
• Suggestion that it is reasonable to have a dental office go through the exemption process.

Consensus of Committee to not exempt dental amalgam from the draft.

(EIA)
Concerned that proprietary data may be disclosed to competitors.
Urges that aggregated data developed by trade associations are allowed for notification purposes.

Comments:

• Suggestion that Vermont law has an exemption for certain business information so that release is not required.
• Suggestion that aggregated data serves no purpose except in the mercury use totals where it is allowed.

Agency attorney will review proprietary data and response will be E-mailed to the Committee.

(AIAM) (Alliance of Automobile Manufacturers)
Assumes that notification applies to total component mercury levels for each motor vehicle.

Comments:

• Concern for method of reporting for mercury amounts per vehicle.

Conclusion that notification would be by individual model and are a total of all component parts contained in each particular model and a list of what those components are.

Section 6 – Restrictions on the Sale of Certain Mercury-added Products:

(NWF) – (VPIRG)
(a)Change wording concerning the Internet

Consensus that the order in which "Internet" and "by any means" should be changed. Agency will draft wording and E-mail to Committee.

(NWF) – (VPIRG)
(c)Suggest removing the word "science" before program

(VPIRG) Suggested language for this section: "Within one year of the adoption of this act, no school in Vermont may use or purchase for use in a primary or secondary program elemental mercury, chemicals containing mercury/mercury compounds or mercury added measuring devices. Thermostats already installed in schools are exempt from this provision."

Comments:

• Original intent of Committee was to exempt programs at Essex Technical School from this provision.
• Suggestion to not limit the restriction to only those items in the science classroom.
• Suggestion to require dental training programs to provide plan developed in cooperation with Agency for training students proper disposal and handling of mercury and incorporating this instruction as a part of their curriculum.
• Karen Knaebel advised Committee that she had contacted Essex Tech to determine if they were utilizing the best management guide provided by the National Wildlife Federation and the Vermont State Dental Society and they advised there were using the guidance document but needed more copies. An arrangement was made to allow the school to photocopy the document to distribute to their students.
• Suggestion to defer the requirement to submit a plan to the Agency’s education component.
• Suggestion to require the school to submit a plan on an annual basis.
• Suggestion to change "science" to "non-vocational" in this section.
• Suggestion to add a restriction against outside parties, such as children, from bringing mercury into the schools.
• Suggestions that schools suspend, expel or by other means enforce such a requirement.

Bill Bress to draft wording for change to "non-vocational" and also to address the requirement for dental training programs to provide a plan.

Rich Phillips to check with the Agency’s attorney to draft wording for children bringing mercury into schools.

All draft language will be E-mailed to members for review.

(NWF)
(d) Remove the word "dairy" from manometers to include other types of manometers.

By consensus the Committee concluded that the intent of the model was to focus on dairy manometers and to leave this section as it is.

(CLF)
Supports this section.

(Dept. of Agriculture)
(d) Suggests replacement language for this section. See comment letter.

Comments:

• This section is a restriction of the "sale" of manometers only and additional time may not be required.
• Suggestion to change the time frame for this section to two years.
• Suggestion to leave the time frame for this section at one year.
• Suggestion to change the time frame of this to six months.

The Committee determined to leave the time frame for implementation as it is and to contact the Agriculture Department to determine why they suggested the change. Agency will E-mail findings back to the Committee for review.

Note: After the 11-30-00 meeting, Annie MacMillan of the Department of Agriculture, Food and markets indicated they agree with making the sales ban effective on passage.

(VSDS)
Recommends exemption for dental amalgam. Wants the dental assistance programs in schools to not be affected by the school bans on use.

(VRA)
Provision for manufacturer to notify retailer was deleted from (b) and (c) – suggest to also delete in (a) and (d).

Agency to research minutes to determine why the wording was removed from (b) and (c) and E-mail the findings to the members for review.

Section 7 – Phase-out and Exemptions:

(NWF) – (VPIRG)
(a)Phase out should include products containing 5mg or more and then eventually zero.

Comments:

• Suggestion to go to even a lower level that listed.
• Model suggests limit down to 10mg with state review.
• Suggestion to add language to possibly lower 10mg limit over a period of time

The Agency will evaluate and E-mail members possible language or comments for review.

(NWF) – (VPIRG)
(f)Limit renewal of exemptions – see (i)
(g) and (h) Only manufacturer designed and funded collection systems should qualify under exemptions.

(VPIRG)(i) Possible language: "Exemptions shall be renewable (upon presentation of documentation of all the qualification) 3 times on this basis, for up to 6 years total . . . refer to suggested language in VPIRG comments.

Comments:

• Suggestion to limit number of exemptions.
• Suggestion that criteria show some effort to reduce.
• Suggestion for renewal of exemption five times for up to ten years.
• Suggestion that this is a serious topic "exemption renewal" that needs to be revisited to eliminate potential perpetual exemptions.
• Suggestion that this limitation go into rule making process. Comment that it would be necessary to go into law in order to enforce.
• Suggestion to add additional criteria to limit exemptions now.
• Suggestion that this is a manufacturers’ privilege and if a manufacturers’ responsibility system exists there will be accountability for more than two years as they meet the criteria each time.
• Suggestion to add a third criteria to require the manufacturer to provide a schedule to show that a need for an exemption will not be there in the future.
• Suggestion that a schedule could not be provided if you were going to substitute an alternative that is not currently available.
• Suggestion to specify a number of times that an exemption could be renewed without further legislative amendments.
• Suggestion that manufacturer demonstrate an increase in capture rates and have a mechanism available to raise the rate of capture. Comment that a manufacturer cannot control the capture rates and therefore could not report on capture rates.

The Agency will draft language for the Committee to review by E-mail.

Because of lack of time, the review of the summary of comments ceased in the middle of Section 7 – Phase-out and Exemptions. The Committee determined that each member would indicate on the remaining summary of comments whether they agreed or disagreed and E-mail the comments to Karen Knaebel. The comments from the members would be pulled together for a consensus and a rough outline of the draft changes would be E-mailed to each member for review.

Agenda Item 3-
Other topics not on agenda

Karen Knaebel advised the Committee that the date for the card room had been changed to January 23, 2001 at which time the location would be available for full use by the Committee and plans were being made to contact the Governor to participate.

Rich Phillips asked the members to be thinking about items for the annual report that might not have been in last year’s report. The annual report will be a topic for discuss at the next meeting.

Agenda Item 4-
Set date and agenda for next meeting

The next meeting of the Advisory Committee on Mercury Pollution is to be held on Wednesday, December 20, 2000 from 9:00 a.m. to 11:30 p.m. The meeting will be held in the Training Room of the Department of Environmental Conservation in the Waterbury State Complex in Waterbury, Vermont.