Calendar No. 182

104TH CONGRESS

1ST SESSION S. 619

[Report No. 104–136]

A BILL

To phase out the use of mercury in batteries and

other purposes.batteries, and certain other batteries, and fornickel cadmium batteries, small sealed lead-acidtion and recycling or proper disposal of usedprovide for the efficient and cost-effective collecAUGUST 30, 1995

Reported with amendments
II

Calendar No. 182

104TH CONGRESS

1ST SESSION S. 619

[Report No. 104–136]

To phase out the use of mercury in batteries and provide for the efficient

and cost-effective collection and recycling or proper disposal of used

nickel cadmium batteries, small sealed lead-acid batteries, and certain

other batteries, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 24 (legislative day, MARCH 23), 1995

Mr. SMITH (for himself, Mr. LAUTENBERG, Mr. FAIRCLOTH, Mr. MCCONNELL, Mr. SIMON, Mr. MACK, Mr. BOND, Mr. GRAHAM, Mr. LIEBERMAN,

Mr. WARNER, Mr. REID, Mr. INHOFE, and Ms. SNOWE) introduced the

following bill; which was read twice and referred to the Committee on Environment and Public Works

AUGUST 30, 1995

Reported under authority of the order of the Senate of August 11 (legislative

day, July 10), 1995, by Mr. CHAFEE, with amendments

[Omit the part struck through and insert the part printed in italic]

A BILL

To phase out the use of mercury in batteries and provide

for the efficient and cost-effective collection and recycling

or proper disposal of used nickel cadmium batteries,

small sealed lead-acid batteries, and certain other batteries, and for other purposes.
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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Mercury-Containing

5 and Rechargeable Battery Management Act’’.

6 SEC. 2. FINDINGS.

7 The Congress finds that—

8 (1) it is in the public interest to—

9 (A) phase out the use of mercury in bat10 teries and provide for the efficient and cost-ef11 fective collection and recycling or proper dis12 posal of used nickel cadmium batteries, small

13 sealed lead-acid batteries, and other regulated

14 batteries; and

15 (B) educate the public concerning the col16 lection, recycling, and proper disposal of such

17 batteries;

18 (2) uniform national labeling requirements for

19 regulated batteries, rechargeable consumer products,

20 and product packaging will significantly benefit pro21 grams for regulated battery collection and recycling

22 or proper disposal; and

23 (3) it is in the public interest to encourage per24 sons who use rechargeable batteries to participate in
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1 collection for recycling of used nickel-cadmium,

2 small sealed lead-acid, and other regulated batteries.

3 SEC. 3. DEFINITIONS.

4 In For purposes of this Act:

5 (1) ADMINISTRATOR.—The term ‘‘Adminis6 trator’’ means the Administrator of the Environ7 mental Protection Agency.

8 (2) BUTTON CELL.—The term ‘‘button cell’’

9 means a button- or coin-shaped battery.

10 (3) EASILY REMOVABLE.—The term ‘‘easily re11 movable’’, with respect to a battery, means detach12 able or removable at the end of the life of the bat13 tery—

14 (A) from a consumer product by a

15 consumer with the use of common household

16 tools; or

17 (B) by a retailer of replacements for a bat18 tery used as the principal electrical power

19 source for a vehicle.

20 (4) MERCURIC-OXIDE BATTERY.—The term

21 ‘‘mercuric-oxide battery’’ means a battery that uses

22 a mercuric-oxide electrode.

23 (5) RECHARGEABLE BATTERY.—The term ‘‘re24 chargeable battery’’—
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1 (A) means 1 or more voltaic or galvanic

2 cells, electrically connected to produce electric

3 energy, that is designed to be recharged for re4 peated uses; and

5 (B) includes any type of enclosed device or

6 sealed container consisting of 1 or more such

7 cells, including what is commonly called a bat8 tery pack (and in the case of a battery pack, for

9 the purposes of the requirements of easy remov10 ability and labeling under section 103, means

11 the battery pack as a whole rather than each

12 component individually); but

13 (C) does not include—

14 (i) a lead-acid battery used to start an

15 internal combustion engine or as the prin16 cipal electrical power source for a vehicle,

17 such as an automobile, a truck, construc18 tion equipment, a motorcycle, a garden

19 tractor, a golf cart, a wheelchair, or a boat;

20 (ii) a lead-acid battery used for load

21 leveling or for storage of electricity gen22 erated by an alternative energy source,

23 such as a solar cell or wind-driven genera24 tor;
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1 (iii) a battery used as a backup power

2 source for memory or program instruction

3 storage, timekeeping, or any similar pur4 pose that requires uninterrupted electrical

5 power in order to function if the primary

6 energy supply fails or fluctuates momen7 tarily; or

8 (iv) a rechargeable alkaline battery.

9 (6) RECHARGEABLE CONSUMER PRODUCT.—

10 The term ‘‘rechargeable consumer product’’—

11 (A) means a product that, when sold at re12 tail, includes a regulated battery as a primary

13 energy supply, and that is primarily intended

14 for personal or household use; but

15 (B) does not include a product that only

16 uses a battery solely as a source of backup

17 power for memory or program instruction stor18 age, timekeeping, or any similar purpose that

19 requires uninterrupted electrical power in order

20 to function if the primary energy supply fails or

21 fluctuates momentarily.

22 (7) REGULATED BATTERY.—The term ‘‘regu23 lated battery’’ means a rechargeable battery that—
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1 (A) contains a cadmium or a lead electrode

2 or any combination of cadmium and lead elec3 trodes; or

4 (B) contains other electrode chemistries

5 and is the subject of a determination by the Ad6 ministrator under section 103(d).

7 (8) REMANUFACTURED PRODUCT.—The term

8 ‘‘remanufactured product’’ means a rechargeable

9 consumer product that has been altered by the re10 placement of parts, repackaged, or repaired after

11 initial sale by the original manufacturer.

12 SEC. 4. INFORMATION DISSEMINATION.

13 The Administrator shall, in consultation with rep14 resentatives of rechargeable battery manufacturers, re15 chargeable consumer product manufacturers, and retail16 ers, establish a program to provide information to the pub17 lic concerning the proper handling and disposal of used

18 regulated batteries and rechargeable consumer products

19 with nonremovable batteries.

20 SEC. 5. ENFORCEMENT.

21 (a) CIVIL PENALTY.—When on the basis of any infor22 mation the Administrator determines that a person has

23 violated or is in violation of any requirement of this Act,

24 the Administrator—
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1 (1) in the case of a willful violation, may issue

2 an order assessing a civil penalty of not more than

3 $10,000 for each violation and requiring compliance

4 immediately or within a reasonable specified time pe5 riod, or both; or

6 (2) in the case of any violation, may commence

7 a civil action in the United States district court in

8 the district in which the violation occurred for ap9 propriate relief, including a temporary or permanent

10 injunction.

11 (b) CONTENTS OF ORDER.—An order under sub12 section (a)(1) shall state with reasonable specificity the

13 nature of the violation.

14 (c) CONSIDERATIONS.—In assessing a civil penalty

15 under subsection (a)(1), the Administrator shall take into

16 account the seriousness of the violation and any good faith

17 efforts to comply with applicable requirements.

18 (d) FINALITY OF ORDER; REQUEST FOR HEARING.—

19 An order under subsection (a)(1) shall become final un20 less, not later than 30 days after the order is served, a

21 person named in the order requests a hearing on the

22 record.

23 (e) HEARING.—On receiving a request under sub24 section (d), the Administrator shall promptly conduct a

25 hearing on the record.
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1 (f) SUBPOENA POWER.—In connection with any

2 hearing on the record under this section, the Adminis3 trator may issue subpoenas for the attendance and testi4 mony of witnesses and for the production of relevant pa5 pers, books, and documents.

6 (g) CONTINUED VIOLATION AFTER EXPIRATION OF

7 PERIOD FOR COMPLIANCE.—If a violator fails to take cor8 rective action within the time specified in an order under

9 subsection (a)(1), the Administrator may assess a civil

10 penalty of not more than $10,000 for the continued non11 compliance with the order.

12 (h) SAVINGS PROVISIONS.—The Administrator may

13 not take any enforcement action against a person for sell14 ing, offering for sale, or offering for promotional purposes

15 to the final consumer a battery or product governed by this

16 Act that was—

17 (1) purchased ready for final sale; and

18 (2) sold, offered for sale, or offered for pro19 motional purposes without modification.

20 SEC. 6. INFORMATION GATHERING AND ACCESS.

21 (a) RECORDS AND REPORTS.—A person who is re22 quired to carry out the objectives of this Act, including—

23 (1) a regulated battery manufacturer;

24 (2) a rechargeable consumer product manufac25 turer;
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1 (3) a mercury-containing battery manufacturer;

2 and

3 (4) an authorized agent of a person described

4 in subparagraph (A), (B), or (C) paragraph (1), (2),

5 or (3),

6 shall establish and maintain such records and report such

7 information as the Administrator may by regulation rea8 sonably require to carry out the objectives of this Act.

9 (b) ACCESS AND COPYING.—The Administrator or

10 the Administrator’s authorized representative, on presen11 tation of credentials of the Administrator, may at reason12 able times have access to and copy any records required

13 to be maintained under subsection (a).

14 (c) CONFIDENTIALITY.—The Administrator shall

15 maintain the confidentiality of documents and records that

16 contain proprietary information.

17 SEC. 7. STATE AUTHORITY.

18 Except as provided in sections 103(e) and 104, noth19 ing in this Act shall be construed to prohibit a State from

20 enacting and enforcing a standard or requirement that is

21 more stringent than a standard or requirement established

22 or promulgated under this Act.

23 SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

24 There are authorized to be appropriated such sums

25 as are necessary to carry out this Act.
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1 TITLE I—RECHARGEABLE

2 BATTERY RECYCLING ACT

3 SEC. 101. SHORT TITLE.

4 This title may be cited as the ‘‘Rechargeable Battery

5 Recycling Act’’.

6 SEC. 102. PURPOSE.

7 The purpose of this title is to facilitate the efficient

8 recycling or proper disposal of used nickel-cadmium re9 chargeable batteries, used small sealed lead-acid recharge10 able batteries, other regulated batteries, and such re11 chargeable batteries in used consumer products, by—

12 (1) providing for uniform labeling requirements

13 and streamlined regulatory requirements for regu14 lated battery collection programs; and

15 (2) encouraging voluntary industry programs by

16 eliminating barriers to funding the collection and

17 recycling or proper disposal of used rechargeable

18 batteries.

19 SEC. 103. RECHARGEABLE CONSUMER PRODUCTS AND

20 LABELING.

21 (a) PROHIBITION.—

22 (1) IN GENERAL.—No person shall sell for use

23 in the United States a regulated battery that is

24 ready for retail sale or a rechargeable consumer

25 product that is ready for retail sale, which if the bat-
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1 tery or product was manufactured on or after the

2 date that is 12 months after the date of enactment

3 of this Act, unless—

4 (A) in the case of a regulated battery, the

5 regulated battery—

6 (i) is easily removable from the re7 chargeable consumer product; or

8 (ii) is sold separately; and

9 (B) in the case of a regulated battery or

10 rechargeable consumer product, the labeling re11 quirements of subsection (b) are met.

12 unless the labeling requirements of subsection (b) are

13 met and, in the case of a regulated battery, the regu14 lated battery—

15 (A) is easily removable from the recharge16 able consumer product; or

17 (B) is sold separately.

18 (2) APPLICATION.—Paragraph (1) does not

19 apply to a sale of any of the following:

20 (A) The sale of a remanufactured product

21 unit unless paragraph (1) applied to the sale of

22 the unit when originally manufactured; or .

23 (B) The sale of a product unit intended for

24 export purposes only.
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1 (b) LABELING.—Each regulated battery or recharge2 able consumer product without an easily removable battery

3 manufactured on or after the date that is 1 year after

4 the date of enactment of this Act, whether produced do5 mestically or imported, shall be labeled with— bear the

6 following labels:

7 (1)(A) 3 chasing arrows or a comparable recy8 cling symbol; .

9 (B)(i) on each nickel-cadmium battery, the

10 chemical name or the abbreviation ‘‘Ni-Cd’’; and

11 (ii) on each lead-acid battery, ‘‘Pb’’ or the

12 words ‘‘LEAD’’, ‘‘RETURN’’, and ‘‘RECYCLE’’;

13 (C) on each nickel-cadmium regulated battery,

14 the phrase ‘‘BATTERY MUST BE RECYCLED

15 OR DISPOSED OF PROPERLY.’’; and

16 (D) on each sealed lead acid regulated battery,

17 the phrase ‘‘BATTERY MUST BE RECYCLED.’’;

18 (2)(A) On each regulated battery that is a nick19 el-cadmium battery, the chemical name or the abbre20 viation ‘‘Ni-Cd’’ and the phrase ‘‘BATTERY MUST

21 BE RECYCLED OR DISPOSED OF PROPERLY.’’.

22 (B) On each regulated battery that is a lead-acid

23 batters, ‘‘Pb’’ or the words ‘‘LEAD’’, ‘‘RETURN’’,

24 and ‘‘RECYCLE’’ and if the regulated battery is
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1 sealed, the phrase ‘‘BATTERY MUST BE RECY2 CLED.’’.

3 (2) on (3) On each rechargeable consumer prod4 uct containing a regulated battery that is not easily

5 removable, the phrase ‘‘CONTAINS NICKEL-CAD6 MIUM BATTERY. BATTERY MUST BE RECY7 CLED OR DISPOSED OF PROPERLY.’’ or

8 ‘‘CONTAINS SEALED LEAD BATTERY. BAT9 TERY MUST BE RECYCLED.’’, as applicable;

10 and .

11 (3) on (4) On the packaging of each recharge12 able consumer product, and the packaging of each

13 regulated battery sold separately from such a prod14 uct, unless the required label is clearly visible

15 through the packaging, the phrase ‘‘CONTAINS

16 NICKEL-CADMIUM BATTERY. BATTERY

17 MUST BE RECYCLED OR DISPOSED OF

18 PROPERLY.’’ or ‘‘CONTAINS SEALED LEAD

19 BATTERY. BATTERY MUST BE RECYCLED.’’,

20 as applicable.

21 (c) EXISTING OR ALTERNATIVE LABELING.—

22 (1) INITIAL PERIOD.—For a period of 2 years

23 after the date of enactment of this Act, regulated

24 batteries, rechargeable consumer products containing

25 regulated batteries, and rechargeable consumer
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1 product packages that are labeled in substantial

2 compliance with subsection (b) shall be deemed to

3 comply with the labeling requirements of subsection

4 (b).

5 (2) CERTIFICATION.—

6 (A) IN GENERAL.—On application by per7 sons subject to the labeling requirements of

8 subsection (b) or the labeling requirements pro9 mulgated by the Administrator under sub10 section (d), the Administrator shall certify that

11 a different label meets the requirements of sub12 section (b) or (d), respectively, if the different

13 label—

14 (i) conveys the same information as

15 the label required under subsection (b) or

16 (d), respectively; or

17 (ii) conforms with a recognized inter18 national standard that is consistent with

19 the overall purposes of this title.

20 (B) CONSTRUCTIVE CERTIFICATION.—

21 Failure of the Administrator to object to an ap22 plication under subparagraph (A) on the

23 ground that a different label does not meet ei24 ther of the conditions described in subpara25 graph (A) (i) or (ii) within 120 days after the
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1 date on which the application is made shall con2 stitute certification for the purposes of this Act.

3 (d) RULEMAKING AUTHORITY OF THE ADMINIS4 TRATOR.—

5 (1) IN GENERAL.—If the Administrator deter6 mines that other rechargeable batteries having elec7 trode chemistries different from regulated batteries

8 are toxic and may cause substantial harm to human

9 health and the environment if discarded into the

10 solid waste stream for land disposal or incineration,

11 the Administrator may, with the advice and counsel

12 of State regulatory authorities and manufacturers of

13 rechargeable batteries and rechargeable consumer

14 products, and after public comment—

15 (A) promulgate labeling requirements for

16 the batteries with different electrode chem17 istries, rechargeable consumer products contain18 ing such batteries that are not easily removable

19 batteries, and packaging for the batteries and

20 products; and

21 (B) promulgate requirements for easy re22 movability of regulated batteries from recharge23 able consumer products designed to contain

24 such batteries.
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1 (2) SUBSTANTIAL SIMILARITY.—The regula2 tions promulgated under paragraph (1) shall be sub3 stantially similar to the requirements set forth in

4 subsections (a) and (b).

5 (e) UNIFORMITY.—After the effective dates of a re6 quirement set forth in subsection (a), (b), or (c) or a regu7 lation promulgated by the Administrator under subsection

8 (d), no Federal agency, State, or political subdivision of

9 a State may enforce any easy removability or environ10 mental labeling requirement for a rechargeable battery or

11 rechargeable consumer product that is not identical to the

12 requirement or regulation.

13 (f) EXEMPTIONS.—

14 (1) IN GENERAL.—With respect to any re15 chargeable consumer product, any person may sub16 mit an application to the Administrator for an ex17 emption from the requirements of subsection (a) in

18 accordance with the procedures under paragraph

19 (2). The application shall include the following infor20 mation:

21 (A) A statement of the specific basis for

22 the request for the exemption.

23 (B) The name, business address, and tele24 phone number of the applicant.
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1 (2) GRANTING OF EXEMPTION.—Not later than

2 60 days after receipt of an application under para3 graph (1), the Administrator shall approve or deny

4 the application. On approval of the application the

5 Administrator shall grant an exemption to the appli6 cant. The exemption shall be issued for a period of

7 time that the Administrator determines to be appro8 priate, except that the period shall not exceed 2

9 years. The Administrator shall grant an exemption

10 on the basis of evidence supplied to the Adminis11 trator that the manufacturer has been unable to

12 commence manufacturing the rechargeable consumer

13 product in compliance with the requirements of this

14 section and with an equivalent level of product per15 formance without the product—

16 (A) posing a threat to human health, safe17 ty, or the environment; or

18 (B) violating requirements for approvals

19 from governmental agencies or widely recog20 nized private standard-setting organizations (in21 cluding Underwriters Laboratories).

22 (3) RENEWAL OF EXEMPTION.—A person

23 granted an exemption under paragraph (2) may

24 apply for a renewal of the exemption in accordance

25 with the requirements and procedures described in
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1 paragraphs (1) and (2). The Administrator may

2 grant a renewal of such an exemption for a period

3 of not more than 2 years after the date of the grant4 ing of the renewal.

5 SEC. 104. REQUIREMENTS.

6 For the purposes of carrying out the collection, stor7 age, transportation, and recycling or proper disposal of

8 used rechargeable batteries, batteries described in section

9 3(3)(C) 3(5)(C) or in title II, and used rechargeable

10 consumer products containing rechargeable batteries that

11 are not easily removable rechargeable batteries, persons

12 involved in collecting, storing, or transporting such bat13 teries or products to a facility for recycling or proper dis14 posal shall, notwithstanding any other law, be regulated

15 in the same manner and with the same limitations as if

16 the persons were collecting, storing, or transporting bat17 teries subject to subpart G of part 266 of title 40, Code

18 of Federal Regulations, as in effect on January 1, 1993,

19 except that sections 264.76, 265.76, and 268.7 of that

20 title shall not apply spent lead acid batteries that are recy21 clable materials subject to regulations of the Environmental

22 Protection Agency under subpart G of part 266 of title 40,

23 Code of Federal Regulations, as in effect on January 1,

24 1995, except that the requirements of title 40 relating to

25 unmanifested waste reports (40 CFR 264.76 and 265.76)
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1 and to waste analysis and recordkeeping (40 CFR 268.7)

2 shall not apply.

3 SEC. 105. COOPERATIVE EFFORTS.

4 Notwithstanding any other law, if 2 or more persons

5 who participate in projects or programs to collect and

6 properly manage used rechargeable batteries or products

7 powered by rechargeable batteries advise the Adminis8 trator of their intent, the persons may agree to develop

9 jointly, or to share in the costs of participating in, such

10 a project or program and to examine and rely on such

11 cost information as is collected during the project or pro12 gram.

13 TITLE II—MERCURY-CONTAIN14 ING BATTERY MANAGEMENT

15 ACT

16 SEC. 201. SHORT TITLE.

17 This title may be cited as the ‘‘Mercury-Containing

18 Battery Management Act’’.

19 SEC. 202. PURPOSE.

20 The purpose of this title is to phase out the use of

21 batteries containing mercury.

22 SEC. 203. LIMITATIONS ON THE SALE OF ALKALINE-MAN23 GANESE BATTERIES CONTAINING MERCURY.

24 No person shall sell, offer for sale, or offer for pro25 motional purposes any alkaline-manganese battery manu-
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1 factured on or after January 1, 1996, with a mercury con2 tent that was intentionally introduced (as distinguished

3 from mercury that may be incidentally present in other

4 materials), except that the limitation on mercury content

5 in alkaline-manganese button cells shall be 25 milligrams

6 of mercury per button cell.

7 SEC. 204. LIMITATIONS ON THE SALE OF ZINC-CARBON

8 BATTERIES CONTAINING MERCURY.

9 No person shall sell, offer for sale, or offer for pro10 motional purposes any zinc-carbon battery manufactured

11 on or after January 1, 1996, that contains mercury that

12 was intentionally introduced as described in section 203.

13 SEC. 205. LIMITATIONS ON THE SALE OF BUTTON CELL

14 MERCURIC-OXIDE BATTERIES.

15 No person shall sell, offer for sale, or offer for pro16 motional purposes any button cell mercuric-oxide battery

17 for use in the United States on or after January 1, 1996.

18 SEC. 206. LIMITATIONS ON THE SALE OF OTHER MER19 CURIC-OXIDE BATTERIES.

20 (a) PROHIBITION.—On or after January 1, 1996, no

21 person shall sell, offer for sale, or offer for promotional

22 purposes a mercuric-oxide battery for use in the United

23 States unless the battery manufacturer—

24 (1) identifies a collection site that has all re25 quired Federal, State, and local government approv-
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1 als, to which persons may send used mercuric-oxide

2 batteries for recycling or proper disposal;

3 (2) informs each of its purchasers of mercuric4 oxide batteries of the collection site identified under

5 paragraph (1); and

6 (3) informs each of its purchasers of mercuric7 oxide batteries of a telephone number that the pur8 chaser may call to get information about sending

9 mercuric-oxide batteries for recycling or proper dis10 posal.

11 (b) APPLICATION OF SECTION.—This section does

12 not apply to a sale or offer of a mercuric-oxide button

13 cell battery.

14 SEC. 207. NEW PRODUCT OR USE.

15 On petition of a person that proposes a new use for

16 a battery technology described in this title or the use of

17 a battery described in this title in a new product, the Ad18 ministrator may exempt from this title the new use of the

19 technology or the use of such a battery in the new product

20 on the condition, if appropriate, that there exist reason21 able safeguards to ensure that the resulting battery or

22 product without an easily removable battery will not be

23 disposed of in an incinerator, composting facility, or land24 fill (other than a facility regulated under subtitle C of the

25 Solid Waste Disposal Act (42 U.S.C. 6291 et seq.)).
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