06- 096 C.M.R. ch. 872, § 5

Current through 2024-51, December 18, 2024

Section 096-872-5 - Scope of review; submissions

This section describes the scope of the commissioner's review in determining whether an applicant has met one of the criteria for exemption under section 4. This section also lists, for each exemption criterion, the submissions required of applicants seeking an exemption on the basis of that criterion.

A.Technical infeasibility

(1) Scope of review.In determining if an exemption should be granted on the basis that technically feasible nonmercury alternatives to a mercury-added product are not available, the commissioner shall consider all relevant evidence to that effect, such as:

(a) The extent to which nonmercury alternatives are offered for sale in the U.S. marketplace; and

(b) The extent to which nonmercury alternatives are used in the particular application or applications for which exemption is requested.

(2) Submissions. An applicant seeking exemption on the basis that technically feasible nonmercury alternatives are not available must submit the following information:

(a) A description of the mercury-added product, including identification of the manufacturer and an explanation of the need for and purpose of the mercury in the product;

(b) The specific uses of the product for which exemption is requested;

(c) A description of past, current and planned future efforts to identify or develop nonmercury alternatives;

(d) A list of the individuals, companies and resources consulted during the search for alternatives;

(e) A description of all potential nonmercury alternatives that have been identified and considered; and

(f) 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.

B.Cost

(1) Scope of review.In determining whether to grant an exemption on the basis that technically feasible nonmercury alternatives, although available, are too costly, the commissioner shall consider all relevant evidence to that effect, such as:

(a) The purchase price differential between the mercury-added product and available nonmercury alternatives;

(b) Costs other than purchase price associated with the substitution of a nonmercury alternative;

(c) The affordability of the nonmercury alternatives as demonstrated by their availability in the marketplace and sales volumes; and

(d) Any costs savings, such as avoided mercury spill cleanup and hazardous waste disposal costs, that the applicant or user of the product will realize by switching to a nonmercury alternative.

The focus of the commissioner 's review is on the cost of nonmercury alternatives to users of the product for which exemption is requested and not on redesign, retooling or other costs incurred by the product manufacturer to discontinue the use of mercury. If nonmercury alternatives are available in the marketplace and widely used, the commissioner may presume that the alternatives are available at comparable cost. The applicant may overcome this presumption by persuasive evidence demonstrating that the cost of the nonmercury alternatives will pose a financial hardship to users of the product for which exemption is requested.

(2) Submissions. An applicant seeking exemption on the basis that the available nonmercury alternatives are too costly must, at a minimum, submit the following information:

(a) A description of the mercury-added product, including identification of the manufacturer and an explanation of the purpose of and need for the mercury in the product;

(b) The specific uses of the product for which exemption is requested and the price, or range of prices, at which the product is sold to users;

(c) For each use for which an exemption is requested, a list of the available nonmercury alternatives and their price range;

(d) An estimate of the additional cost that will be incurred by users of the mercury-added product to replace it with a nonmercury alternative and an explanation of how the additional costs were calculated;

(e) The actual or estimated mercury spill cleanup and disposal costs incurred by the applicant or users of the mercury-added product during the 5 years immediately preceding the filing of the exemption application.

C.Environmental benefit

(1) Scope of review.In determining whether to grant an exemption on the basis that use of the mercury-added product provides a net benefit to the environment, public health or public safety when compared to available nonmercury alternatives, the commissioner shall consider all relevant evidence to that effect, such as:

(a) 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 nonmercury alternatives;

(b) The amount of mercury expected to be placed in commerce annually if the exemption is granted;

(c) 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; and

(d) The steps that will be taken through product design or otherwise to ensure that mercury is not released during use and disposal of the product.

The commissioner may not grant an exemption for the reason that a mercury-added product provides a net benefit to the environment, public health or public safety if the claimed benefit does not differ from the benefits available from nonmercury alternatives.

(2) Submissions. An applicant seeking exemption on the basis that the mercury-added product provides a net benefit to the environment, public health or public safety when compared to available nonmercury alternatives must submit the following information:

(a) A description of the mercury-added product, including identification of the manufacturer and an explanation of the purpose of and need for the mercury in the product;

(b) The specific uses of the product for which exemption is requested;

(c) A narrative identifying the specific benefit claimed and explaining how the claimed benefit differs from the benefits afforded by available nonmercury alternatives; and

(d) The rationale for the applicant's position that the claimed benefit exceeds the potential adverse environment and public health consequences associated with the use of mercury in the product, including:

(i) Identification of the risks to human health associated with the use of mercury in the product and the pathways by which humans could be exposed to the mercury;

(ii) An estimate of the amount of mercury that will be released to the environment if the exemption is granted; and

(iii) The steps, if any, that will be taken through product design or otherwise to minimize the release of mercury during use and disposal of the product.

D.Advanced technology product

(1) Scope of review.In determining whether the use of a mercury-added product is required to meet specifications identified by the customer or end user of an advanced technology product, the commissioner shall consider all relevant evidence to that effect, such as:

(a) The written product specification that requires the use of the mercury-added component for which exemption is requested; and

(b) Evidence that the advanced technology product has been or can be manufactured using nonmercury alternatives to the product for which exemption is requested.

(2) Submissions. An applicant seeking exemption on the basis that the mercury-added product is needed for an advanced technology product must submit the following information:

(a) A description of the advanced technology product, the applications in which it is used and the number of units expected to be sold if the exemption is granted;

(b) A copy of the product specifications that require the use of the mercury-added product.

06- 096 C.M.R. ch. 872, § 5