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

310 CMR, § 75.07

Amended by Mass Register Issue 1388, eff. 4/5/2019.