§ 6620a. Limitations on the use of heavy metals in packaging

(a) This section shall take effect on the date the Secretary determines that a law similar to this section has been adopted by any combination of the northeast states with an aggregate population of at least 10,000,000 people. For purposes of this section, northeastern states shall include the New England states, Pennsylvania, New York, and New Jersey.

(b) As used in this section, the following definitions shall apply:

(1) "Package" means a container providing a means of marketing, protecting, or handling a product and shall include a unit package, an intermediate package and a shipping container. "Package" also shall mean and include such unsealed receptacles as carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs.

(2) "Distributor" means any person, firm, or corporation that takes title to goods purchased for resale.

(3) "Packaging component" means any individual assembled part of a package such as, but not limited to any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, and labels. Tin-plated steel that meets the American Society for Testing and Materials (ASTM) specification A-623 shall be considered as a single package component. Electro-galvanized coated steel and hot dipped coated galvanized steel that meets the ASTM specifications A-525 and A-879 shall be treated in the same manner as tin-plated steel.

(4) "Intentional introduction" means the act of deliberately utilizing a regulated metal in the formulation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality.

(5) "Incidental presence" means the presence of a regulated metal as an unintended or undesired ingredient of a package or packaging component.

(6) "Manufacturing" means physical or chemical modification of one or more materials to produce packaging or packaging components.

(7) "Distribution" means the practice of taking title to one or more package or packaging components for promotional purposes or resale. Persons involved solely in delivering one or more packages or packaging components on behalf of their parties are not considered distributors.

(8) "Manufacturer" means any person, firm, association, partnership, or corporation producing one or more packages or packaging components as defined in this section.

(9) "Supplier" means any person, firm, association, partnership, or corporation which sells, offers for sale, or offers for promotional purposes packages or packaging components which shall be used by any other person, firm, association, partnership, or corporation to package a product.

(c)(1) As soon as feasible, but not later than one year after the Secretary makes the finding described in subsection (a) of this section, no package or packaging component shall be offered for sale or for promotional purposes by its manufacturer or distributor in the State of Vermont which includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers, or any other additives containing any lead, cadmium, mercury, or hexavalent chromium which has been intentionally introduced as an element during manufacturing or distribution as opposed to the incidental presence of any of these elements.

(2) The use of a regulated metal as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, resulting in the incidental retention of a residue of that metal in the final package or packaging component which is neither desired nor deliberate, is not considered intentional introduction for the purposes of this section where that final package or packaging component is in compliance with subdivision (e)(3) of this section and where there is no reasonable alternative.

(3) The use of recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the recycled materials may contain amounts of the regulated metals, is not considered intentional introduction for the purposes of this section where the new package or packaging component is in compliance with subdivision (e)(3) of this section.

(d) As soon as feasible, but not later than one year after the Secretary makes the finding described in subsection (a) of this section, no product shall be offered for sale or for promotional purposes by its manufacturer or distributor in the State of Vermont in a package which includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers, or any other additives containing any lead, cadmium, mercury, or hexavalent chromium which has been intentionally introduced as an element during manufacturing or distribution as opposed to the incidental presence of any of these elements.

(e) The sum of the concentration levels of lead, cadmium, mercury, and hexavalent chromium present in any package or packaging component shall not exceed the following:

(1) 600 parts per million by weight (0.06 percent) effective two years after the Secretary makes the findings described in subsection (a) of this section;

(2) 250 parts per million by weight (0.025 percent) effective three years after the Secretary makes the findings described in subsection (a) of this section; and

(3) 100 parts per million by weight (0.01 percent) effective four years after the Secretary makes the findings described in subsection (a) of this section.

(f) All packages and packaging components shall be subject to subsections (c), (d) and (e) of this section except the following:

(1) Those packages or packaging components with a code indicating date of manufacture that were manufactured prior to the effective date of this statute.

(2) 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 manufacturer of a package or packaging component must petition the Secretary for any exemption from the provisions of this subsection for a particular package or packaging component based upon either criterion; and provided further, that the Secretary may grant an exemption for up to two years if warranted by the circumstances; and provided further, that such an exemption may, upon meeting the criterion of this subsection, be renewed at two-year intervals.

(3) Packages and packaging components that would not exceed the maximum contaminant levels set forth in this section but for the addition of recycled materials; and provided that the exemption under this subdivision shall expire on January 1, 2000.

(4) Packages and packaging components that are reused but exceed contaminant levels set forth in this section, provided that the product being conveyed by that package and the package and packaging itself are regulated under federal or State health or safety laws, or both; and provided that transportation of those packaged products is regulated under federal or State transportation provisions, or both; and provided that disposal of the package is performed according to federal and State radioactive or hazardous waste disposal requirements, and provided that an exemption under this subdivision shall expire on January 1, 2000.

(5) Packages and packaging components having a controlled distribution and reuse (referred to as "reusable entities") that exceed the contaminant levels set forth in this section, provided that the manufacturers or distributors of those packages or packaging components must petition the Secretary for exemption and receive approval from the Secretary, working with the CONEG toxics in a packaging clearinghouse, according to standards established in this subdivision (5), set by the Secretary and based upon satisfactory demonstrations 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 set forth in this section; and provided that an exemption under this subdivision shall expire on January 1, 2000. A plan, to be proposed by the manufacturer seeking the exemption, or the manufacturer's designee, shall include each of the following elements:

(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 reusable entities manufactured and distributed to other persons are not discarded by those persons after use, but are returned to the manufacturer or the manufacturer's 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 wastes which are subject to existing federal or State laws or regulations, or both, governing those manufacturing wastes, to ensure that these wastes do not enter the commercial or municipal waste stream; and

(E) a system of annually reporting to the Secretary changes to the system and changes in designees.

(g) Once the Secretary has made the finding described in subsection (a) of this section, the Secretary may notify a manufacturer that there are grounds for suspecting that a package or packaging component produced by that manufacturer may not be in compliance with this section, and may request the manufacturer to certify that the package or component is in compliance. If the manufacturer certifies that the package or component is exempt, the specific basis for the exemption shall be stated. If the manufacturer does not certify that the product is in compliance or is exempt, the Secretary may order that the packages or components in question be withdrawn from sale or promotional use within the State. For purposes of this subsection, the term manufacturer shall include the importer of a product manufactured outside the United States. False or fraudulent statements by a manufacturer may subject the manufacturer to the penalties of 13 V.S.A. § 3016.

(h) The Secretary shall review the effectiveness of this section by the second January first that follows the determination made under subsection (a) of this section and shall provide a report based upon that review to the Governor, the House Committee on Natural Resources, Fish, and Wildlife, and the Senate Committee on Natural Resources and Energy. The report may contain recommendations to add other toxic substances contained in packaging to the list set forth in this section in order to further reduce the toxicity of packaging waste, and a description of the nature of the substitutes used in lieu of lead, mercury, cadmium, and hexavalent chromium. The Secretary shall, in consultation with the source reduction task force of the Coalition of Northeastern Governors (CONEG), review the extension of the recycling exemption as it is provided for in subdivision (f)(3) of this section. This review shall commence on or before January 1, 1997. A report based upon that review shall be provided to the Governor and General Assembly on or before January 1, 1999. (Added 1989, No. 286 (Adj. Sess.), § 1; amended 1995, No. 57, § 5; 1995, No. 143 (Adj. Sess.), § 1; 2017, No. 113 (Adj. Sess.), § 49a.)