Draft Commissioner's Written Findings on Non-Mercury Alternatives to Certain Mercury-Containing Products

Pursuant to Environmental Conservation Law Section 27-2107(8)

WHEREAS, the New York State legislature has found that mercury is a persistent and toxic pollutant that bioaccumulates in the environment;

WHEREAS, mercury emissions, discharges and spills to the environment are not only dangerous but often difficult and very expensive to clean up;

WHEREAS, the legislature has enacted Article 27, Title 21 of the Environmental Conservation Law to limit the harmful impacts of mercury on human health and the environment;

WHEREAS, there has been considerable research performed and information available in regard to the cost, performance and accuracy of non-mercury alternatives compared to mercury products;

WHEREAS, Environmental Conservation Law §27-2107(8) directs the Commissioner to issue a written finding as to whether non-mercury alternatives are comparable in price to, are as effective in performance as, and are as accurate and precise as mercury sphygmomanometers, mercury wetted reed relays, mercury flame sensors, mercury thermometers other than thermometers prohibited from sale pursuant to Environmental Conservation Law §27-2107(2), or mercury thermostats, except for mercury thermostats used by the blind or visually impaired person; and that, upon the issuance of a finding that non-mercury alternatives are comparable in price, are effective and are as accurate and precise as the listed products, then these mercury containing products may no longer be sold in New York. A copy of Environmental Conservation Law §27-2107 is attached hereto as Exhibit 1;

WHEREAS, pursuant to Environmental Conservation Law §27-2107(8) and (9), this finding shall not apply to the sale or distribution of any mercury-added consumer product delineated in this finding if such product is used to replace a product that is a component in a larger product in use prior to the issuance of this finding or the resale of such product manufactured prior to the issuance of this finding or if the use of such product is a federal requirement.

WHEREAS, the legislature, by adoption of Environmental Conservation Law §§27-2107(2) and (8), has prohibited the sale of mercury fever thermometers except by prescription written by a physician, and has also found it necessary to except mercury thermostats used by a blind or visually impaired person from this prohibition. In doing so, the legislature recognized that, without exceptions for special circumstances, a blanket prohibition may not be feasible or wise and that a prohibition with limited exceptions is consistent with the legislative purpose of limiting the harmful impacts of mercury on human health and the environment;

WHEREAS, the legislature, in contemplating the banning of certain mercury containing products based on specific inquiries and findings by the Commissioner did not expressly provide for an affirmative finding with limited exceptions based on special circumstances or specific uses that become apparent from the research for the required findings;

WHEREAS, the Commissioner finds that without the express authority to make an affirmative finding with limited exceptions and without a statutory procedure for accepting and determining exemption requests for special circumstances or specific uses, that an affirmative finding must be limited to those products for which the research has demonstrated an unconditional affirmative finding is warranted; and

WHEREAS, Environmental Conservation Law §27-2107(8) directs the Commissioner to make this written finding no earlier than January 1, 2008 and no later than February 20, 2008;

NOW, THEREFORE, I hereby find that:

I. There are non-mercury alternatives comparable in price to, effective in performance as, and as accurate and precise as:

A. MERCURY SPHYGMOMANOMETERS

A sphygmomanometer is a device used to measure blood pressure. It is comprised of an inflatable cuff to restrict blood flow and a manometer to measure pressure. There are non-mercury (aneroid) sphygmomanometers that are:

comparable in price to (see Exhibit 2, page 19, Table 4.3; Exhibit 5,Cost Comparison Insert, page 9; and Exhibit 6, Costs, page 2);
effective in performance as (see Exhibit 2, Section 4.2, pages 20-21 and Appendix 5, pages 83-84; Exhibit 4, page 731; Exhibit 5, Efficacy Insert, page 10; and Exhibit 6, page 1); and
accurate and precise as (see Exhibit 2, Section 4.2, pages 20-21 and Appendix 5, pages 83-84; Exhibit 4, pages 729-731; and Exhibit 6, page 1) mercury sphygmomanometers.

B. MERCURY THERMOMETERS (other than thermometers prohibited from sale pursuant to Environmental Conservation Law §27-2107(2))

There are non-mercury thermometers that are:

comparable in price to (see Exhibit 2, Section 4.5, pages 24-27);
effective in performance as (see Exhibit 2, Section 4.5, pages 24-27); and
accurate and precise as mercury thermometers (see Exhibit 2, Section 4.5, pages 24-27).

Note: Body/fever thermometers containing mercury are banned by Environmental Conservation Law §27-2107(2), except by written prescription from a physician (see Exhibit 1). Other non-mercury thermometers are comparable in price to mercury thermometers.

AND I FURTHER find that:

II. An unconditional affirmative finding cannot be made at this time for mercury wetted reed relays, mercury flame sensors and mercury thermostats. The law does not expressly provide for a conditional affirmative finding with limited exceptions based on special circumstances or specific uses or provide a procedure for accepting and determining exemption requests for special circumstances or specific uses.

NOTWITHSTANDING the inability to make a conditional affirmative finding regarding mercury wetted reed relays, mercury flame sensors and mercury thermostats, purchasers and manufacturers of these products must be made aware that in most instances there are non-mercury alternatives for these products that are comparable in price to, as effective in performance as, and as accurate and precise as the mercury containing product. Such a conditional affirmative finding shall not act to prohibit the sale of mercury wetted reed relays, mercury flame sensors and mercury thermostats, but in the furtherance of the legislative purpose, the Department strongly urges users of these products to utilize the non-mercury alternatives. Therefore I further hereby find that, with limited exceptions, there are non-mercury alternatives comparable in price to, effective in performance as, and as accurate and precise as:

A. MERCURY WETTED REED RELAYS

A wetted reed relay is a type of electro-mechanical relay that employs a sealed reed switch. It is typically used in electronic devices for switching or signal routing functions. With limited exceptions, there are non-mercury relays that are:

comparable in price to (see Exhibit 2, Section 4.16B and C, pages 57-64);
effective in performance as (see Exhibit 2, Section 4.16B, page 58);
and accurate and precise as (see Exhibit 2, Section 4.16B, page 58) mercury wetted reed relays.

The limited exceptions to this finding include instances where the application of these relays requires consideration of no contact bounce, long operational life, or low contact resistance which may not be achieved with a non-mercury alternative. (see Exhibit 2, Section 4.16B, page 58)

B. MERCURY FLAME SENSORS

A flame sensor is a safety device used in a gas appliance that stops the flow of gas if there is no heat produced by a pilot light. With limited exceptions, there are non-mercury flame sensors that are:

comparable in price to (see Exhibit 2, Section 4.17, pages 64-65);
effective in performance as (see Exhibit 2, Section 4.17, pages 64-65); and
accurate and precise as (see Exhibit 2, Section 4.17, pages 64-65) mercury flame sensors.

The limited exceptions to this finding include the impossibility of retrofitting an existing mercury flame sensor with a non-mercury alternative or situations where electricity is intermittent or not available for a non-mercury alternative. (see Exhibit 2, Section 4.17, page 65)

C. MERCURY THERMOSTATS (except for mercury thermostats used by a blind or visually impaired person)

With limited exceptions, there are non-mercury thermostats that are:

comparable in price to (see Exhibit 3, pages 16-24);
effective in performance as (see Exhibit 3, page 24); and
accurate and precise as (see Exhibit 3, page 24) mercury thermostats.

A mercury thermostat used by a blind or a visually impaired person is an exception to this finding pursuant to Environmental Conservation Law §27-2107(8) (see Exhibit 1). The limited exceptions to this finding include instances where non-mercury alternatives may not function properly such as in industrial settings with harsh environmental conditions (see Exhibit 2, page 31).

This finding shall become effective 30 days from final publication in the Environmental Notice Bulletin.

Date: 2/20/08

___________/s/_______________

Alexander B. Grannis
Commissioner
New York State Department of Environmental Conservation

Exhibit 1 - Environmental Conservation Law §27-2107

Exhibit 2 (PDF, 404 kb) - An Investigation of Alternatives Mercury Containing Products, Lowell Center for Sustainable Production, University of Massachusetts Lowell, January 22, 2003.

Exhibit 3 (PDF, 124 kb) - A Review of Thermostat Energy Efficiency and Pricing, Lowell Center for Sustainable Production, University of Massachusetts Lowell, May 12, 2003.

Exhibit 4 (PDF, 62 kb) - Are Aneroid Sphygmomanometers Accurate in Hospital and Clinic Settings?, Vincent J. Canzanello, M.D., Patricia L. Jensen, R.N. and Gary L. Schwartz, M.D., Archives of Internal Medicine, Vol. 161 at 729, March 12, 2001.

Exhibit 5 (PDF, 752 kb) - "Eliminating Mercury in Hospitals", Environmental Best Practices for Health Care Facilities, United States Environmental Protection Agency, November 2002.

Exhibit 6 - Purchasing for Pollution Prevention: Mercury-Free Medical and Surgical Supplies Fact Sheet, INFORM, Strategies for a Better Environment, www.informinc.org/fact_P3medicalsupply.php