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Use of Enforcement Discretion for Discarded Mercury-Containing Equipment, NYS Department of Environmental Conservation Commissioner Policy (CP-39)

Issuing Authority: Denise M. Sheehan, Commissioner
Date Issued: May 8, 2006
Last Date Revised:

I. Summary

This Policy provides for the use of enforcement discretion by the New York State Department of Environmental Conservation (Department) to allow the regulated community to comply with the United States Environmental Protection Agency (USEPA) final rule, promulgated at 70 FR 45507-45522 (August 5, 2005), which adds waste consisting of mercury-containing equipment (MCE waste) to the federal Universal Waste Rule (UWR) of 40 CFR Part 273, as an alternative to the existing Department hazardous waste regulations. This Policy effectively allows the option of managing MCE waste in New York pursuant to these USEPA MCE waste regulations.

This Policy shall terminate on the effective date of Department amendments to its hazardous waste regulations adopting these regulations in whole or in part.

II. Policy

This Policy authorizes the exercise of the Department's prosecutorial discretion to not enforce the limitations in New York State's current hazardous waste regulations of Title 6 New York Codes of Rules and Regulations (6 NYCRR) for the management of MCE waste, as defined in 40 CFR Part 273, provided that there is compliance with the newly adopted USEPA MCE waste regulations in 70 FR 45507-45522 (August 5, 2005). These USEPA provisions specific to MCE waste are found in the 40 CFR Parts 260, 261, 264, 265, 268, 270 and 273. This Enforcement Directive will allow regulated parties the option of managing MCE waste as universal waste in New York State, provided that there is compliance with all the preceding federal provisions. Parties that transport greater than 500 pounds of total universal wastes, including MCE waste, must also have a 6 NYCRR Part 364 Waste Transporter Permit.

III. Purpose and Background

The purpose of this document is to establish the Policy described in Section II with regard to the management of MCE waste. This Policy will allow persons managing MCE waste to utilize the option of the regulatory requirements of the UWR, while ensuring that the MCE waste will be managed properly at a regulated universal waste destination facility.

On August 5, 2005, the USEPA issued a final rule allowing MCE waste to be included in the federal UWR of 40 CFR Part 273. "MCE" is defined as a device or part of a device (including thermostats, but excluding batteries and lamps) that contains elemental mercury integral to its function. Various types of MCE waste include instruments that are used in industry, hospitals and households. Some commonly recognized items include, but are not limited to, thermometers, thermostats, barometers, manometers, temperature and pressure gauges, and mercury switches.

USEPA's new rule allows MCE waste to be managed as universal waste, to facilitate its collection, encourage mercury recovery, and promote safe management of mercury waste. These items are often placed into municipal waste streams and incinerators, increasing the release of mercury to the environment. Management of MCE waste as universal waste will greatly reduce its improper disposal and ensure these mercury-containing wastes are properly managed at an authorized or permitted hazardous waste facility.

Other hazardous wastes already allowed to be managed as universal waste include batteries, thermostats, certain pesticides and lamps. Mercury thermostats, which formerly were a separate category of universal waste, are now incorporated by USEPA into the MCE waste category. State and federal hazardous waste management requirements for final disposal or recycling remain unchanged.

Implementation of this Policy will aid in the education, compliance and enforcement of New York State's Mercury-Added Consumer Products Law and will encourage development of additional services and outlets for the proper management of mercury-containing equipment waste. Compliance with this Policy will assure compliance with the Mercury-Added Consumer Products Law.

IV. Responsibility

The responsibility for interpreting and updating this document resides in the Department's Division of Solid & Hazardous Materials, Bureau of Hazardous Waste Regulation, and with the Department's Office of General Counsel.

V. Procedure

As an alternative to New York State regulatory language under 6 NYCRR Parts 370 through 374 and 376 pertaining to regulation of mercury-containing equipment waste, the Department will allow the regulated community to comply with the applicable federal universal waste regulations for the management of MCE waste promulgated at 40 CFR Parts 260, 261, 264, 265, 268, 270, and 273, as amended in 70 FR 45507-45522 (August 5, 2005) and cited as follows:

  1. §260.10 Definitions of "Mercury-containing equipment" and Paragraph (3) of "Universal Waste";
  2. §261.9 Requirements for Universal Waste, (c);
  3. §264.1 Purpose, Scope, and Applicability, (g)(11)(iii);
  4. §265.1 Purpose, Scope, and Applicability, (c)(14)(iii);
  5. §268.1 Purpose, Scope, and Applicability, (f)(3);
  6. §270.1 Purpose and scope of these regulations, (c)(2)(viii)(C);
  7. Part 273, Standards for Universal Waste Management, all revisions promulgated.

Where a regulated entity is in full compliance with the above-referenced portions of 40 CFR Parts 260, 261, 264, 265, 268, 270, and 273, the Department will exercise its enforcement discretion to consider that compliance to constitute compliance with existing standards for MCE waste in 6 NYCRR Parts 370 through 374 and 376. If the regulated entity fails to comply with any USEPA regulation to which this Policy refers, the Department reserves the right to enforce its existing law and regulation.

The Department's 6 NYCRR Part 364 Waste Transporter Permit requirements are not waived under this Policy.

This Policy will be effective for all MCE waste managed within the borders of New York, for as long as the MCE waste remains within New York's borders. This Policy in no way affects the universal waste or hazardous waste management standards of other states which may regulate MCE waste under other standards.

This Policy shall terminate on the effective date of Department amendments to its hazardous waste regulations adopting these regulations in whole or in part.

VI. Related References

6 NYCRR Subpart 374-3, Standards for Universal Wastes

40 CFR Parts 260, 261, 264, 265, 268, 270, and 273, as amended in 70 FR pages 45507-45522 (August 5, 2005)


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