13:1E-99.48 Exemptions, criteria.

5. a. Any package manufacturer, product manufacturer or distributor may, in accordance with rules or regulations adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), claim an exemption from the provisions of section 4 of this act for any package or packaging component meeting any of the following criteria:

(1) Those packages or packaging components labeled with a code indicating a date of manufacture prior to January 1, 1993; except that the labeling requirement may be waived by the department in those instances where it is not feasible or practical to label individual packages or packaging components provided that suitable alternative evidence of date of manufacture is furnished to the department;

(2) Those packages or packaging components used to contain alcoholic beverages, including liquor, wine, vermouth and sparkling wine, bottled prior to January 1, 1993;

(3) Those packages or packaging components which are glass containers with ceramic labeling used to contain pharmaceutical preparations; except that the exemption provided in this paragraph shall expire on January 1, 1995;

(4) Those packages or packaging components which are glass containers with ceramic labeling used to contain cosmetics; except that the exemption provided in this paragraph shall expire on January 1, 1995;

(5) Those packages or packaging components to which lead, cadmium, mercury or hexavalent chromium have been added in the manufacturing, forming, printing or distribution process in order to comply with health or safety requirements of federal law, provided that the package manufacturers of such package or packaging component shall petition the department for an exemption and receive approval from the department based upon a satisfactory demonstration that the criterion is met; provided that an exemption under this paragraph shall be for a period of no more than two years, except that the package manufacturer may apply to the department for renewals of the exemption for periods of no more than two years;

(6) Those packages or packaging components to which lead, cadmium, mercury or hexavalent chromium have been added in the manufacturing, forming, printing or distribution process for the use of which there is no feasible or practical alternative, provided that the package manufacturers of such package or packaging component shall petition the department for an exemption and receive approval from the department based upon a satisfactory demonstration that the criterion is met; provided that an exemption under this paragraph shall be for a period of no more than two years, except that the package manufacturer may apply to the department for renewals of the exemption for periods of no more than two years;

(7) Those packages or packaging components that would not exceed the maximum contaminant levels set forth in subsection c. of section 4 of this act but for the addition of recycled materials; except that the exemption provided in this paragraph shall expire on January 1, 2000;

(8) Those packages or packaging components composed of metal and commonly referred to as "tin cans" that are used to contain food or food products intended for human consumption and that may exceed the maximum contaminant levels set forth in subsection c. of section 4 of this act due to the incidental presence of lead as a naturally occurring chemical element in the metal that is unrelated to the manufacturing process;

(9) Those packages or packaging components composed of metal and commonly referred to as "tin cans" that are used to contain paint, chemicals or other nonfood products, to which lead has been added in the manufacturing process for the purposes of forming, soldering or sealing the can, or that may exceed the maximum contaminant levels set forth in subsection c. of section 4 of this act due to the incidental presence of lead as a naturally occurring chemical element in the metal that is unrelated to the manufacturing process;

(10) Those packages or packaging components that are reused, provided that the related product is regulated under federal or State health or safety requirements and that the transportation of the related product is regulated under federal or State transportation requirements, and the disposal of the related product is performed according to federal or State radioactive or hazardous waste disposal requirements; provided that an exemption under this paragraph shall expire on January 1, 2000;

(11) Those packages or packaging components having a controlled distribution and reuse, provided that the manufacturers or distributors of such package or packaging component shall petition the department for an exemption and receive approval from the department, based on satisfactory demonstration that the environmental benefit of the controlled distribution and reuse is significantly greater as compared to the same package manufactured in compliance with the contaminant levels; provided that an exemption under this paragraph shall expire on January 1, 2000.

The manufacturer shall submit with the petition a plan that shall include:

(a) A means of identifying in a permanent and visible manner those reusable entities containing regulated metals for which an exemption is sought;

(b) A method of regulatory and financial accountability so that a specified percentage of the reusable entities manufactured and distributed to other persons are not discarded by those persons after use but are returned to the manufacturer or designee;

(c) A system of inventory and record maintenance to account for the reusable entities placed in, and removed from, service;

(d) A means of transforming returned entities, that are no longer reusable, into recycled materials for manufacturing or into manufacturing waste that are subject to existing federal or State laws or regulations governing manufacturing waste to ensure that these wastes do not enter the commercial or municipal waste stream; and

(e) A system of annually reporting to the commissioner changes to the system and changes in designees; or

(12) Those packages or packaging components that are glass or ceramic that have a vitrified decoration and when tested in accordance with the toxicity characteristic leaching procedure (TCLP) of the United States Environmental Protection Agency Test Method SW-846 does not exceed 1.0 ppm for cadmium and 5.0 ppm for lead; provided that an exemption under this paragraph shall expire on January 1, 2000.

The exemptions provided in paragraphs (8) and (9) shall expire on January 1, 1997, except that any exemption provided in paragraph (8) or (9) may be renewed by the department after this date for periods not to exceed two years. Any renewal granted by the department for the exemption provided in paragraph (8) or (9) shall be based on evidence furnished to the department that there is no feasible method to reduce the concentration levels of lead for the specified package or packaging component.

For the purposes of this subsection, a use for which there is "no feasible or practical alternative or substitute" means one in which the use of lead, cadmium, mercury or hexavalent chromium is essential to the protection, safe handling, or function of the contents of the package.

b. Any package manufacturer, product manufacturer or distributor claiming an exemption pursuant to subsection a. of this section shall maintain on file a written declaration of exemption for each specified package or packaging component for which an exemption is claimed. Copies of each declaration of exemption shall be furnished to the department upon its request and to members of the public in accordance with the provisions of section 14 of this act.

c. Any product contained in a package or packaging component for which an exemption is claimed may be sold by a retailer provided that the declaration of exemption claimed is valid and in accordance with the criteria provided in subsection a. of this section, as may be verified by the department pursuant to section 9 of this act.

L.1991,c.520,s.5; amended 1997, c.307, s.3.