310 CMR 75.07 - Exemptions from the Sales and Distribution Ban
(1) The manufacturer, importer, or
distributor of a mercury switch, relay, instrument or device subject to the
sales prohibitions in
310 CMR
75.06 may apply to the Department for an
exemption from the prohibition on sale or distribution.
(2) The Department may grant an exemption,
with or without conditions, upon determining that the conditions described in
310 CMR
75.07(2)(a) through (d) all
apply, or that the condition described in
310 CMR
75.07(2)(e) applies:
(a) Use of the mercury-added product is
beneficial to the environment, or protective of public health or public safety,
based on consideration of:
1. The amount of
mercury expected to be placed in commerce annually if the exemption is
granted;
2. The likelihood that the
mercury in the product will be released to the environment, or that users of
the product will be exposed to the mercury;
3. The steps that will be taken through
product design and other methods to ensure that mercury is not released during
use and disposal of the product; and
4. The nature of the claimed benefit, and
whether it differs in kind or degree from the environment, public health and
public safety benefits afforded by available non-mercury
alternatives.
(b) There
is no technically feasible non-mercury alternative available, based on
consideration of:
1. A description of past,
current and planned efforts to identify or develop non-mercury
alternatives;
2. The individuals,
companies and resources consulted during the search for non-mercury
alternatives;
3. A description of
all potential non-mercury alternatives that have been identified and
considered; and
4. The specific
basis (e.g., electrical performance, size, power consumption,
product life) for concluding that each potential alternative was not
technically feasible for the intended use.
(c) There is no comparable non-mercury
alternative available at a reasonable cost, based on consideration of:
1. The purchase price differential between
the mercury-added product and any available non-mercury alternatives;
and
2. Costs other than purchase
price associated with the substitution of a non-mercury alternative, if
applicable.
(d) An
effective system for the collection, transportation and processing of the
mercury-added product at the end of life, pursuant to
310 CMR
75.04, has been implemented at the time that
the exemption application is submitted.
(e) The use of the product is a federal
requirement, as evidenced by
1. a statute or
regulation;
2. a contract
specification; or
3. another
documented federal requirement.
(3)
Contents of Applications for
Exemption from Sales and Distribution Ban.
(a) An application for an exemption based on
the conditions in
310 CMR
75.07(2)(a) through (d)
shall contain the following information, as applicable:
1. Applicant's name, mailing address,
telephone number, North American Industry Classification System, e-mail
address, web address and relationship to the product manufacturer;
2. The name, mailing address, telephone
number, and e-mail address of a contact person for the applicant;
3. Product manufacturer's name, mailing
address, telephone number, North American Industry Classification System,
e-mail address and web address (if different from applicant);
4. The name, mailing address, telephone
number, and e-mail address of a contact person for the product
manufacturer;
5. A description of
the mercury-added product for which an exemption is requested, including the
specific uses of the product and an explanation of the amount and purpose of
the mercury in the product;
6. An
explanation of the environmental, public health or public safety benefits that
the mercury-added product offers in comparison with available non-mercury
alternatives;
7. The amount of
mercury expected to be placed in commerce annually if the exemption is
granted;
8. The likelihood that the
mercury in the product will be released to the environment, or that users of
the product will be exposed to the mercury;
9. The steps that will be taken through
product design and other methods to ensure that mercury is not released during
use and disposal of the product;
10. A description of past, current and
planned efforts to identify or develop non-mercury alternatives;
11. A list of the individuals, companies and
resources consulted during the search for non-mercury alternatives;
12. A description of all potential
non-mercury alternatives that have been identified and considered;
13. The specific basis
(e.g., electrical performance, size, power consumption,
product life) for concluding that each potential alternative was not
technically feasible for the intended use;
14. The purchase price differential between
the mercury-added product and any available non-mercury alternatives;
15. Costs other than purchase price
associated with the substitution of a non-mercury alternative, if applicable;
and
16. A short description of the
collection and recycling system that has been implemented for end-of-life
mercury-added products pursuant to the requirements of
310 CMR
75.04.
(4)
Submission of Applications
for Exemption from Sales and Distribution Ban.
(a) Applications for exemptions from the
sales and distribution ban shall be submitted to the Department or IMERC on a
form prescribed by IMERC that shall include the information described in
310 CMR
75.07(3).
(b) Such application shall be accompanied by
a statement prescribed by
310 CMR
70.03(2)(d), to certify the
accuracy of the information in the application.
(c) Manufacturers may request that the
Department keep the information described in
310 CMR
75.07(3) confidential, in
accordance with the requirements and procedures established in 310 CMR 3.00:
Access to and Confidentiality of Department Records and
Files.
(d) An exemption
application filed with IMERC that complies with the requirements of
310 CMR
75.07(2) and (3) or
requirements established by other IMERC states shall be deemed to have been
submitted to the Department.
(5)
The Applicant Applying
Directly to the Department or IMERC Shall Publish a Legal Notice in a
Massachusetts Newspaper of General Circulation and the Massachusetts
Enviromental Monitor.
(a) The
legal notice shall include:
1. A summary of
the application for exemption;
2. A
statement that comments can be sent to the Mercury Program Manager at the
Massachusetts Department of Environmental Protection up to 21 days after the
date that the legal notice is published, and instructions for sending comments
including the appropriate mailing address; and
3. Instructions for obtaining a complete copy
of the application for exemption.
(b) Within five days following the
publication of the legal notice, the applicant shall send a tear sheet of the
legal notice to the Mercury Program Manager at the Massachusetts Department of
Environmental Protection.
(6)
Decisions on Applications for
Exemption from Sales and Distribution Ban.
(a) The Department shall determine whether
the application is complete based on the information required in
310 CMR
75.07, and may request additional
information.
(b) The Department
shall consult with the Massachusetts Department of Public Health in reviewing
applications for exemptions that pertain to mercury-added products used in
medical settings and other items that may affect public health.
(c) The Department shall consult with other
states that regulate mercury-added products that are affected by the sales ban
to ensure consistency in decisions among states to the extent
practicable.
(d) Exemptions shall
be valid for a period of time not to exceed three years from the date of
approval. An exemption may be renewed at the discretion of the Department,
based on an application that meets the requirements of
310 CMR
75.07, submitted no later than six months
prior to the end of the previously approved exemption period.
(e) Exemptions that have been approved by
IMERC states prior to August 21, 2009 shall be deemed to be approved by the
Department for the duration that the exemption has been granted.
(7) An application for an
exemption based on
310 CMR
75.07(2)(e) shall contain
the following information:
(a) All information
required in
310 CMR
75.07(3)(a)1. through
5.;
(b) A copy of the relevant
federal statute, regulation, contract specification, or other federal
requirement, and contact information for the federal agency (including a staff
contact) that established the requirement; and
(c) A statement prescribed by
310 CMR
70.03(2)(d).
(d) An applicant requesting an exemption
under
310 CMR
75.07(2)(e) is not required
to publish a legal notice as per
310 CMR
75.07(5).
(e) If the Department determines that the
product is not eligible for an exemption from the sales and distribution ban
under
310 CMR
75.07(2)(e), the
manufacturer shall either comply with the sales and distribution ban or apply
for an exemption in accordance with
310 CMR
75.07(3).
Notes
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