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                                 SENATE AMENDED
        PRIOR PRINTER'S NOS. 69, 3953, 4200           PRINTER'S NO. 4414



No. 44 Session of 2007

           HARHART, JANUARY 30, 2007

           AS AMENDED, SEPTEMBER 23, 2008

                                     AN ACT

     1  Prohibiting the sale, installation and disposal of mercury
     2     thermostats; and prescribing penalties.

     3     The General Assembly of the Commonwealth of Pennsylvania
     4  hereby enacts as follows:
     5  Section 1.  Short title.
     6     This act shall be known and may be cited as the Mercury-Free
     7  Thermostat Act.
     8  Section 2.  Legislative findings.
     9     The General Assembly finds and declares as follows:
    10         (1)  Waterways throughout this Commonwealth have been
    11     placed under fish consumption advisory warnings due to high
    12     levels of mercury contamination.
    13         (2)  Human exposure to mercury from thermostats is
    14     primarily through improper disposal of items in landfills or

     1     through incineration.
     2         (3)  Mercury thermostats represent the largest amount of
     3     mercury in ordinary household products. A single mercury
     4     thermostat contains between three and five grams of mercury.
     5     According to the Environmental Protection Agency's 2002
     6     estimates, each year about six to eight tons of mercury from
     7     discarded thermostats end up in solid waste facilities and
     8     between one and two tons are released into the air.
     9         (4)  Electronic programmable thermostats that do not
    10     contain mercury are readily available and can save consumers
    11     considerable money in energy costs when used properly. Snap
    12     switch thermostats that function like mercury thermostats,
    13     but contain no mercury, are also available.
    14         (5)  The Commonwealth supports shared responsibility for
    15     all stakeholders including manufacturers, retailers,
    16     wholesalers, local and state governments working to resolve
    17     those issues and efforts to reduce mercury entering the
    18     atmosphere and water supply from all sources in the most
    19     cooperative and cost-effective means available.
    20         (6)  The nonprofit Thermostat Recycling Corporation
    21     (TRC), created and supported by thermostat manufacturers, is
    22     a voluntary program designed to collect mercury thermostats
    23     from wholesalers. The TRC has been operating in this
    24     Commonwealth since 2000 and has recycled almost 30,000
    25     thermostats, thereby diverting more than 284 pounds of
    26     mercury in seven years in Pennsylvania. This Commonwealth has
    27     been a consistently high-performing state under the program,
    28     with collections higher than all but five other states in
    29     2007. Collections in Pennsylvania peaked at 7,019 thermostats
    30     in 2006.
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     1         (7)  It is in the public interest to increase the scope
     2     and effectiveness of mercury thermostat collection programs
     3     through promotion and expansion of recycling efforts and
     4     banning the sale, installation and disposal of mercury
     5     thermostats in this Commonwealth.
     6  Section 3.  Definitions.
     7     The following words and phrases when used in this act shall
     8  have the meanings given to them in this section unless the
     9  context clearly indicates otherwise:
    10     "Department."  The Department of Environmental Protection of
    11  the Commonwealth.
    12     "Manufacturer."  The owner of a brand name on a thermostat.
    13     "Mercury thermostat."  A product or device that contains
    14  mercury or a mercury compound and is used to sense and control
    15  room temperature through communication with heating, ventilating
    16  or air-conditioning equipment. The term does not include such
    17  product or device used to sense and control temperature as part
    18  of a manufacturing process.
    19     "Retailer."  A business that sells thermostats of any kind
    20  directly to homeowners, other nonprofessionals or contractors
    21  through any selling or distribution mechanism, including, but
    22  not limited to, sales using the Internet or catalogs. A retailer
    23  may also be a wholesaler if the retailer meets the definition of
    24  wholesaler.
    25     "Wholesaler."  A business that the Department of
    26  Environmental Protection determines is primarily engaged in the
    27  distribution and wholesale selling of large quantities of
    28  heating, ventilation and air conditioning components to
    29  contractors who install heating, ventilation and air
    30  conditioning components.
    20070H0044B4414                  - 3 -     

     1  Section 4.  Prohibition on sale and installation of mercury
     2                 thermostats.
     3     Beginning one year after the effective date of this section
     4  no person shall sell, offer for sale or install a mercury
     5  thermostat in this Commonwealth.
     6  Section 5.  Prohibiting disposal of mercury thermostats.
     7     (a)  General rule.--Beginning one year after the effective
     8  date of this section, no person, municipality or operator of a
     9  solid waste treatment, processing or disposal facility shall
    10  knowingly dispose, permit the disposal of, or send to a resource
    11  recovery facility for processing, a mercury thermostat from
    12  which the mercury has not been removed for reuse, recycling or
    13  other methods approved by the department.
    14     (b)  Exception.--No operator of a solid waste treatment,
    15  processing or disposal facility shall be found to have knowingly
    16  disposed of a mercury thermostat if the facility has notified
    17  customers of the ban in writing and posted signs at the facility
    18  clearly noting the prohibition.
    19     (c)  Construction.--This subsection shall not be construed to
    20  affect prior existing laws, rules or regulations more stringent
    21  than the provisions under subsection (a) governing the disposal
    22  of mercury, mercury thermostats and other products containing
    23  mercury.
    24  Section 6.  Collection and recycling programs.
    25     (a)  Manufacturer programs.--
    26         (1)  Each manufacturer of mercury thermostats that have
    27     been sold in this Commonwealth shall, individually or
    28     collectively, establish and maintain a department-approved
    29     collection and recycling program for out-of-service mercury
    30     thermostats from wholesalers, contractors and retailers,
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     1     service technicians and homeowners.
     2         (2)  The program shall be developed in a manner that
     3     ensures to the maximum extent that:
     4             (i)  The capture of out-of-service mercury
     5         thermostats is maximized.
     6             (ii)  There is no direct cost to contractors, service
     7         technicians or homeowners for participating in the
     8         program, except that wholesalers, contractors and
     9         retailers may be assessed a nominal administrative fee to
    10         offset the cost of each collection bin for each
    11         collection location for out-of-service thermostats.
    12             (iii)  Information and education on proper management
    13         and recycling of mercury thermostats are provided to
    14         contractors, service technicians, wholesalers, retailers,
    15         institutions and homeowners to encourage the return of
    16         out-of-service thermostats at established recycling
    17         collection points.
    18             (iv)  The purchase of mercury-free programmable
    19         thermostats qualified by the Environmental Protection
    20         Agency's Energy Star program as replacements for mercury
    21         thermostats is encouraged.
    22             (v)  Mechanisms are in place to protect against the
    23         fraudulent return of thermostats.
    24             (vi)  The handling and recycling of mercury
    25         thermostats is accomplished in a manner compliant with
    26         section 5 and all other applicable Federal, State and
    27         local requirements.
    28             (vii)  The program otherwise implements all aspects
    29         of the collection program as instructed by the
    30         department.
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     1     (b)  Wholesaler and retailer participation.--
     2         (1)  Beginning one year after the effective date of this
     3     section, EXCEPT AS PROVIDED FOR IN PARAGRAPH (4), a            <--
     4     wholesaler or retailer may not sell a thermostat in this
     5     Commonwealth unless the wholesaler, retailer or contractor
     6     acts as a collection site for thermostats that contain
     7     mercury.
     8         (2)  A wholesaler, retailer or contractor may meet the
     9     requirements of this subsection by participating as a
    10     collection site in a manufacturer collection program as
    11     described under subsection (a) or by collecting thermostats
    12     that contain mercury and managing the collected thermostats
    13     in accordance with applicable Federal and State universal
    14     waste rules.
    15         (3)  A wholesaler or retailer acting as a collection site
    16     shall provide visible signage at the site about the
    17     collection and recycling of mercury thermostats.
    18         (4)  A wholesaler, retailer or contractor that sells       <--
    19     mercury thermostats, but chooses not to act as a collection    <--
    20     site or participate in a manufacturer collection program as a
    21     collection site, shall provide notice to consumers that
    22     recycling of mercury thermostats is required under
    23     Pennsylvania law and the notice shall include the specific
    24     names and locations of any collection sites within reasonably
    25     close proximity that recycle mercury thermostats.
    26     (c)  Department oversight.--
    27         (1)  Each manufacturer shall submit to the department for
    28     review and approval the collection and recycling program
    29     required under subsection (a) no later than 180 days after
    30     the effective date of this section. The proposed collection
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     1     and recycling program may include appropriate enhancements to
     2     an existing program or a new program.
     3         (2)  Within 30 days after receipt of a manufacturer's
     4     proposed collection and recycling program, the department
     5     shall issue a public notice of the availability of the
     6     proposal and solicit public comment for 30 calendar days.
     7     Within 90 days after receipt of a proposal, the department
     8     shall approve, conditionally approve or disapprove the
     9     proposed collection and recycling program.
    10         (3)  If the proposed collection and recycling program is
    11     approved, with or without conditions, the manufacturer or
    12     manufacturers shall begin implementing the program within 90
    13     days after receipt of approval.
    14         (4)  If the entire proposed collection and recycling
    15     program is not approved, the department shall inform the
    16     manufacturer as to the reasons for the disapproval. The
    17     manufacturer shall have 30 days thereafter to submit a
    18     revised plan.
    19         (5)  Within 30 days after receipt of a manufacturer's
    20     revised collection and recycling program, the department
    21     shall issue a public notice of the availability of the
    22     revised proposal and solicit public comments for 30 calendar
    23     days. Within 90 days after receipt of a proposal, the
    24     department shall approve, conditionally approve or disapprove
    25     the proposed collection and recycling program.
    26         (6)  If the revised collection and recycling program is
    27     not approved, the manufacturer shall be considered out of
    28     compliance for the purposes of subsection (b) beginning on
    29     the date the revised plan is disapproved by the department.
    30         (7)  In conducting its duties under this subsection, the
    20070H0044B4414                  - 7 -     

     1     department shall take into account the experience of
     2     thermostat collection programs in other states. The
     3     department shall approve a manufacturer's proposed collection
     4     and recycling program if it contains terms and conditions
     5     sufficient for the department to conclude that the proposed
     6     program will substantially improve and sustain mercury
     7     thermostat collection and recycling in this Commonwealth.
     8     (d)  Safe management and recycling program.--The department
     9  shall provide education and outreach to business, local
    10  government, schools and the public on proper management of
    11  mercury thermostats and other products containing mercury,
    12  including a listing of department-approved collection sites. A
    13  list of department-approved collection sites shall also be
    14  distributed to wholesalers, retailers and contractors OR MADE     <--
    16     (e)  Reporting.--
    17         (1)  Each manufacturer with an approved collection and
    18     recycling program shall submit an annual report to the
    19     department by June 1 of each year that includes:
    20             (i)  The number of mercury thermostats collected and
    21         recycled by the manufacturer pursuant to this act during
    22         the previous year.
    23             (ii)  The estimated total amount of mercury contained
    24         in the mercury components collected by the manufacturer
    25         pursuant to this act during the previous year.
    26             (iii)  An evaluation of the effectiveness of the
    27         manufacturer's collection and recycling program and any
    28         recommendations for improvements, including modifications
    29         to the program.
    30             (iv)  Collection goals which shall be established to
    20070H0044B4414                  - 8 -     

     1         ensure an increase in the number of mercury thermostats
     2         collected each year until 2015 or a time that the
     3         department determines that the number of in-service
     4         thermostats is steadily declining as a result of the ban
     5         on sales and installation.
     6         (2)  Within 90 days after receipt of the manufacturer's
     7     annual reports, the department shall publish information in
     8     its Internet website about the collection and recycling of
     9     mercury thermostats in this Commonwealth. This information
    10     shall include:
    11             (i)  A description of the collection and recycling
    12         program established under this act.
    13             (ii)  Collection goals and data on actual collection
    14         rates.
    15         (3)  In conjunction with the manufacturer, the department
    16     may alter any and all elements of the previously approved
    17     manufacturer collection and recycling program, including, but
    18     not limited to, the number and location of the collection
    19     points and collection goals and means to achieve established
    20     goals, provided alterations are not inconsistent with the
    21     requirements of this and other applicable laws.
    22         (4)  The Secretary of Environmental Protection may
    23     discontinue the requirement for the annual report pursuant to
    24     this subsection on finding that mercury thermostats no longer
    25     pose a threat to the environment and to public health.
    26  Section 7.  Penalties.
    27     The department may assess civil penalties for violations of
    28  this act. The penalty shall not exceed $2,500 per day for each
    29  violation. Each day of continued violation, and each violation
    30  of any provision of this act, any rule or regulations adopted
    20070H0044B4414                  - 9 -     

     1  under this act, any order of the department or any condition or
     2  term of a collection and recycling program approved pursuant to
     3  this act shall constitute a separate offense and violation.
     4  Section 8.  Effective date.
     5     This act shall take effect in 60 days.

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