[Senate Report 104-136]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 182
104th Congress                                                   Report
                                 SENATE

 1st Session                                                    104-136
_______________________________________________________________________


 
       MERCURY-CONTAINING AND RECHARGEABLE BATTERY MANAGEMENT ACT

                                _______


                August 30, 1995.--Ordered to be printed

     Filed under authority of the order of the Senate of August 11 
                    (legislative day, July 10), 1995

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 619]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 619), 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, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill do pass.

                           General Statement

    A battery is a device that converts the chemical energy 
contained in its active chemicals directly into electric energy 
by means of an electrochemical reaction. A substantial domestic 
power source, many currently manufactured batteries, including 
nickel-cadmium cells, do however present difficult post-use 
disposal options due to their chemical components. Accordingly, 
a primary objective of S. 619 is to facilitate an industry 
developed, financed and administered national collection 
program for nickel-cadmium batteries.
    Americans use approximately 2.5 billion dry cell batteries 
each year. While this accounts for a minute portion of the 
amount of solid waste generated each year, such batteries 
represent a significant source of mercury and cadmium to the 
waste stream. Dry cell batteries disposed of in landfills often 
breakdown over time, releasing their toxic contents to 
groundwater resources. In incinerators, the combustion of dry 
cell batteries causes toxic air emissions and increases the 
concentration of toxic metals in the resulting fly ash and 
bottom ash.
    Dry cell batteries fall into two major categories: primary 
batteries and secondary batteries. Primary batteries include 
disposable alkaline manganese and zinc carbon types commonly 
used in flashlights, radios and toys. Primary batteries do not 
typically contain toxic metals such as lead and cadmium in the 
makeup of their electrodes (terminals conducting electric 
current). Instead most primary batteries incorporate relatively 
small amounts of metals to suppress the formation of dangerous 
gases in the battery and to extend battery life.
    The exception to this among primary batteries is the 
mercuric-oxide cell. These batteries are unique, utilizing 
mercuric-oxide to provide a relatively constant voltage over 
the life of the battery. A substantial amount of medical, 
military, computer and other equipment require constant voltage 
in order to operate. Mercuric-oxide alternatives, however, are 
increasingly being used in the market.
    Secondary batteries, also known as rechargeable cells, 
include heavy metal nickel-cadmium and sealed lead batteries. 
These batteries are usually marketed along with products, most 
often with external rechargers. In addition, secondary 
batteries were often permanently installed into a variety of 
portable tools and appliances.
    Working to protect the environment and preserve natural 
resources, companies manufacturing and selling rechargeable 
batteries and products have developed a voluntary national 
program to collect and recycle nickel-cadmium batteries. To 
operate this collection and recycling program, industry has 
established the nonprofit Rechargeable Battery Recycling 
Corporation (RBRC). License fees paid by nickel-cadmium battery 
and product manufacturers to place the RBRC seal on batteries 
and products fund the program.
    The myriad of diverse State labeling and collection 
regulations across the country as well as Federal waste 
regulations have precluded the RBRC from fully implementing the 
collection and recycling program. Thirteen States have enacted 
legislation requiring that nickel-cadmium and small lead-acid 
batteries be labeled and are ``easily removable'' from consumer 
products. In addition, Federal regulations defined as hazardous 
waste small batteries which are commonly used in such products 
as telephones, toys, laptop computers and tools. As a result, 
the collection and shipment of such batteries by retailers and 
municipal authorities was severely limited. Although the 
Environmental Protection Agency's recent promulgation of the 
Universal Waste Rule may ultimately provide some regulatory 
relief, it does not provide complete or prompt assistance. Due 
to limited rulemaking resources, it is expected to take years 
before States can adopt the necessary regulations to implement 
the Federal rule.
    By providing a coherent national system for labeling 
batteries and products, requiring the easy removability of 
batteries from consumer products and streamlining Federal 
regulations, S. 619 will afford States, localities, consumers 
and industry the opportunity to join together to achieve a 
sound environmental program without imposing burdens on the 
State or the taxpayer. In fact, according to the RBRC, S. 619 
would generate substantial savings for Federal, State and local 
entities and commercial operations that ship nickel-cadmium 
batteries due to the lower shipping costs associated with the 
streamlined requirements.
    The Portable Rechargeable Battery Association (PRBA), the 
National Electrical Manufacturers Association (NEMA), and the 
Electronic Industries Association (EIA) support S. 619. In 
addition, the U.S. Conference of Mayors, at its June 1995 
meeting, adopted a resolution in support of S. 619.

                                Summary

    S. 619 is intended to respond to the environmental threats 
posed by used, spent batteries. The approach is two-fold. 
First, the bill promotes the recycling of rechargeable 
batteries through uniform labeling requirements and streamlined 
regulations for battery collection programs. Second, the bill 
limits mercury content in and phases out the use of mercury in 
certain batteries.
    Title I of S. 619 would facilitate the efficient recycling 
or proper disposal of used nickel-cadmium rechargeable 
batteries, used small lead-acid rechargeable batteries, other 
regulated batteries and such rechargeable batteries in used 
consumer products by:

          1) mandating uniform labeling requirements;
          2) prohibiting the sale of regulated batteries that 
        are not easily removable from rechargeable consumer 
        products;
          3) streamlining regulatory requirements for battery 
        collection programs; and
          4) eliminating barriers to funding the collection and 
        recycling or proper disposal of used rechargeable 
        batteries.

    Title II is intended to reduce the environmental threat 
posed by mercury-containing batteries by prohibiting the sale 
of certain batteries containing mercury, limiting the amount of 
mercury allowed in certain batteries and mandating stringent 
disposal/recycling information requirements for the sale of 
certain batteries containing mercury.

                      Section-by-Section Analysis

Sec. 1. Short Title
    Section 1 establishes the short title of the bill as the 
``Mercury-Containing and Rechargeable Battery Management Act''.
Sec. 2. Congressional Findings
    Section 2 finds that it is in the public interest to 
phaseout the use of mercury in batteries and provide for 
efficient and cost effective collection and recycling or proper 
disposal of certain batteries; that uniform national labeling 
of certain batteries will significantly benefit recycling 
programs; and that battery recycling programs are to be 
encouraged.
Sec. 3. Definitions
    Section 3 includes definitions for the following terms used 
in the bill: ``Administrator'', ``button cell'', ``easily 
removable'', ``mercuric oxide battery'', ``rechargeable 
battery'', ``rechargeable consumer product'', ``regulated 
battery'', and ``remanufactured product''.
    The exclusions from the definition of rechargeable battery 
in paragraph 5(C) cover lead-acid batteries used by vehicles 
and electric power generators; rechargeable alkaline batteries, 
(such batteries are subject to Section 203's mercury 
requirements); and batteries built into products to deal with 
power failures and fluctuations. The paragraph 5(C)(iii) 
exemption and the corresponding product exemption in paragraph 
6(B) do not apply to external uninterruptible power supply 
devices or their batteries.
Sec. 4. Information Dissemination
    Section 4 requires the Administrator of the Environmental 
Protection Agency to establish a program to provide information 
to the public on proper handling and disposal of used batteries 
and rechargeable consumer products with nonremovable batteries.
Sec. 5. Enforcement
    Section 5 provides civil enforcement authority to the 
Administrator in cases where the Administrator has determined 
that a person has violated or is in violation of any 
requirement of the Act. In the case of a willful violation, the 
Administrator may assess a civil penalty not to exceed $10,000 
for each violation. This section also clarifies that the 
Administrator may not take any enforcement action against a 
retailer for selling, offering for sale, or offering for 
promotional purposes to the final consumer, an unmodified 
battery or product governed by the Act that was purchased ready 
for final sale, and sold, offered for sale or offered for 
promotional purposes.
Sec. 6. Information Gathering and Access
    Section 6 authorizes the imposition of record keeping 
requirements for those subject to the Act (battery 
manufacturers or their agents), and provides the Administrator 
with information gathering authority on battery collection and 
recycling.
Sec. 7. State Authority
    Section 7 preserves State authority to enact and enforce 
standards or requirements more stringent than a standard or 
requirement established or promulgated under this Act, except 
as provided in sections 103(e) and 104.
Sec. 8. Authorization of Appropriations
    Section 8 authorizes to be appropriated such sums as 
necessary to implement the requirements of this Act.

              Title I. Rechargeable Battery Recycling Act

Sec. 101. Short Title
    Section 101 establishes the short title of Title I as the 
``Rechargeable Battery Recycling Act''.
Sec. 102. Purpose
    Section 102 lists the purpose of Title I as facilitating 
the efficient recycling of used nickel-cadmium rechargeable 
batteries, used small sealed lead-acid rechargeable batteries, 
and such rechargeable batteries in used consumer products, 
through uniform labeling requirements, streamlined regulatory 
requirements for regulated battery collection programs, and 
voluntary industry programs by eliminating barriers to funding 
the collection and recycling or proper disposal of used 
rechargeable batteries.
Sec. 103. Rechargeable Consumer Products and Labeling
    Section 103 sets forth standards and labeling requirements 
for rechargeable consumer products and regulated batteries.
    Section 103(a) prohibits the sale, 1 year after date of 
enactment, in the United States of any regulated battery 
(defined as a rechargeable battery that contains cadmium or a 
lead electrode or any combination of cadmium and lead 
electrodes or contains other electrode chemistries and is 
subject of a determination by the Administrator under section 
103(d)) unless the battery is sold separately or is easily 
removable from a rechargeable consumer product, and in the case 
of a regulated battery or rechargeable consumer product, the 
labeling requirements of subsection (b) are met.
    Section 103(b) lists the labeling requirements for 
regulated batteries, rechargeable consumer products, 
rechargeable consumer products without an easily removable 
battery, and the packaging of rechargeable consumer products 
and regulated batteries sold separately from such a product. 
The requirements are mandatory for batteries and products 
manufactured 1 year after date of enactment.
    Section 103(c) provides that for a period of 2 years after 
date of enactment, those regulated batteries, consumer products 
and packages that are labeled in substantial compliance with 
subsection (b) shall be deemed to comply with the labeling 
requirements of subsection (b). In addition, subsection (c) 
provides the Administrator with the authority, upon application 
by an entity subject to the labeling requirements, to certify 
that a different label meets the requirements of subsection (b) 
or (d).
    Section 103(d) provides the Administrator with the 
authority, after public comment, to promulgate labeling 
requirements for: batteries with different electrode 
chemistries from regulated batteries, rechargeable consumer 
products containing such batteries that are not easily 
removable, and packaging for the batteries and products; and to 
promulgate requirements for easy removability of regulated 
batteries from rechargeable consumer products if the 
Administrator determines that the batteries are toxic and may 
cause substantial harm to human health and the environment if 
discarded into the solid waste stream for land disposal or 
incineration.
    Section 103(e) provides that no Federal agency, State or 
political subdivision of a State may enforce any easy 
removability or environmental labeling requirement for a 
rechargeable battery or rechargeable consumer product that is 
not identical to the requirements or regulations set forth in 
subsections (a), (b), (c) or (d).
    Section 103(f) provides the authority and sets forth the 
procedure for the Administrator to grant exceptions to the easy 
removability requirements under subsection (a).
Sec. 104. Requirements
    Section 104 applies Subpart G of part 266 of title 40 of 
the Code of Federal Regulations to used rechargeable batteries, 
batteries described in Section 3(5)(C) or title II, and used 
rechargeable consumer products containing rechargeable 
batteries that are not easily removable, for the purposes of 
streamlining the collection, storage, transportation, recycling 
or proper disposal of such items.
    In short, Section 104 allows for the collection, 
transportation, and storage of the above mentioned items 
without the Resource Conservation and Recovery Act (RCRA) 
requirements designed for hazardous wastes: manifesting, 
special storage and transportation rules, record keeping and 
registration with the Environmental Protection Agency. In 
effect, Section 104 applies the Subpart G provisions, which are 
currently applicable to only lead-acid batteries, to the new 
rechargeable battery technologies (particularly nickel-cadmium 
batteries), which were not in general use when Subpart G was 
adopted in 1980.
Sec. 105. Cooperative Efforts
    Section 105 grants authority for two or more persons, 
provided they inform the Administrator of their intent, to 
develop jointly or share in the costs of participating in 
projects or programs to collect and properly manage used 
rechargeable batteries or products powered by rechargeable 
batteries. The entities may examine and rely upon cost 
information collected by the program. The purpose of this 
provision is to facilitate industry information sharing.

          Title II. Mercury Containing Battery Management Act

Sec. 201. Short Title
    Section 201 establishes the short title of Title II as the 
``Mercury-Containing Battery Management Act''.
Sec. 202. Purpose
    Section 202 states the purpose of Title II as phasing out 
the use of batteries containing mercury.
Sec. 203. Limitations on the Sale of Alkaline-Manganese Batteries 
        Containing Mercury
    Section 203 prohibits any person from selling, offering for 
sale, or offering for promotional purposes any alkaline-
manganese battery manufactured on or after January 1, 1996, 
with a mercury content that was intentionally introduced (as 
distinguished from mercury which may be incidentally present in 
other materials), except that the limitation on mercury content 
in alkaline-manganese button cell batteries shall be not more 
than 25 milligrams of mercury per button cell.
Sec. 204. Limitations on the Sale of Zinc-Carbon Batteries Containing 
        Mercury
    Section 204 prohibits any person from selling, offering for 
sale, or offering for promotional purposes any zinc-carbon 
battery manufactured on or after January 1, 1996, that contains 
any mercury that was intentionally introduced.
Sec. 205. Limitations on the Sale of Button Cell Mercuric-Oxide 
        Batteries
    Section 205 prohibits any person from selling, offering for 
sale, or offering for promotional purposes in the United States 
any button cell mercuric-oxide battery on or after January 1, 
1996.
Sec. 206. Limitations on the Sale of Other Mercuric-Oxide Batteries
    Section 206 prohibits any person from selling, offering for 
sale, or offering for promotional purposes, on or after January 
1, 1996, nonbutton cell mercuric-oxide batteries for use in the 
United States unless the battery manufacturer (1) identifies a 
collection site that has all required government approvals, to 
which persons may send used mercuric-oxide batteries for 
recycling or proper disposal; and (2) informs each of its 
purchasers of such batteries of such identified collection 
site; and (3) informs each of its purchasers of such batteries 
of a telephone number that the purchaser may call to obtain 
information about sending mercuric-oxide batteries for 
recycling or proper disposal. This section does not apply to 
mercuric-oxide button cell batteries. Section 206 recognizes 
that some unique voltage situations, including many medical and 
military applications, require the use of mercuric-oxide 
batteries. As a result, the bill allows for the use of such 
batteries albeit under strict information requirements for 
recycling and or disposal criteria.
Sec. 207. New Product or Use
    Section 207 allows persons proposing a new use for battery 
technology covered by this title or the use of any such battery 
in a new product to petition the Administrator for an exemption 
from this title. The Administrator may grant such an exemption, 
and, if appropriate, require that reasonable safeguards exist 
to assure that such batteries will not be disposed of in 
incinerators, composting facilities, or landfills (other than a 
RCRA-regulated facility).

                                Hearings

    The Committee did not hold a hearing on the reported bill, 
however, similar Federal battery legislation has been approved 
in the House and Senate since 1992. In 1994, legislation 
similar to S. 619 was approved by the Senate as part of S. 729, 
the Lead Exposure Reduction Act. S. 729 was not acted upon by 
the full House. In 1992, battery legislation was approved by 
the House Energy and Commerce Committee and the Senate 
Environment and Public Works Committee as part of the 
reauthorization of the Resource Conservation and Recovery Act. 
That legislation did not move forward in either the House or 
Senate.

                                Markups

    The Environment and Public Works Committee held one markup 
on S. 619 on August 2, 1995.

                             Rollcall Votes

    Section 7(b) of rule XXVI of the Standing Rules of the 
Senate requires that any rollcall votes taken during the 
Committee's consideration of the bill be noted in the report.
    No rollcall votes were taken on the bill noted in the 
report. The bill was ordered reported by voice vote with a 
quorum present on August 2, 1995.

                    Evaluation of Regulatory Impact

    Section 11(b) of rule XVI of the Standing Rules of the 
Senate requires publication in the report the committee's 
estimate of the regulatory impact made by the bill as reported. 
That estimate follows:
    The bill as reported requires regulated battery 
manufacturers, mercury-containing battery manufacturers and 
rechargeable consumer product manufacturers to provide uniform 
battery and product labeling for the purposes of collection, 
storage, transportation, recycling or disposal of used 
rechargeable batteries, batteries described in Section 3(5)(C) 
or in Title II, and used rechargeable consumer products 
containing rechargeable batteries that are not easily 
removable. In addition, the bill limits mercury content in and 
phases out the use of mercury in certain batteries.
    Consistent with Congressional authority to regulate 
interstate commerce, S. 619 provides the Environmental 
Protection Agency with minimal regulatory authority to 
establish record keeping and reporting requirements to carry 
out the objectives of the bill. Furthermore, the bill provides 
the Administrator of the Environmental Protection Agency with 
the authority to promulgate additional labeling and easy 
removability requirements for batteries with different 
electrode chemistries that are toxic and may cause substantial 
harm. Finally, the bill provides civil enforcement authority to 
the Administrator in cases where the Administrator has 
determined that a person has violated or is in violation of any 
requirement of the Act.
    The primary impact of S. 619, however, is to ease the 
burden of current regulatory requirements. The bill streamlines 
current RCRA regulations applying to collection, storage, 
transportation, recycling or disposal of used rechargeable 
batteries, batteries described in Section 3(5)(C) or in Title 
II, and used rechargeable consumer products containing 
rechargeable batteries that are not easily removable. 
Specifically, Section 104 applies 40 CFR Part 266, Subpart G, 
currently applicable only to lead-acid batteries to the items 
listed in the bill. In addition, Section 104 eliminates the 
waste analysis and record keeping provisions of 40 CFR 268.7. 
As a result, the bill will allow for collection, transportation 
and storage without RCRA requirements for manifesting, special 
storage and transportation rules, extensive record keeping and 
EPA registration. States, localities, the Federal Government 
and commercial entities that ship used batteries will be 
afforded the benefits of such regulatory streamlining. Finally, 
enactment of S. 619 will obviate the need for States to adopt 
regulations or laws in order to participate in a national 
nickel-cadmium battery collection program.

                        Cost of the Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. Attached is an analysis of the cost of 
the legislation from the Congressional Budget Office.

                             U.S. Congress,
                       Congressional Budget Office,
                                    Washington, DC, August 10, 1995
Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 619, the Mercury-Containing and Rechargeable 
Battery Management Act, as ordered reported by the Senate 
Committee on Environment and Public Works on August 2, 1995. 
CBO estimates that this bill would not have a significant 
impact on the Federal budget, because it does not require any 
new regulatory actions. Because the bill could affect receipts, 
pay-as-you go procedures would apply. However, CBO estimates 
that any change in receipts would be insignificant. Finally, 
the bill would not impose any new enforceable duties on State 
and local governments and could produce some savings for them.
    Bill Purpose. S. 619 would prohibit the sale of certain 
consumer products with rechargeable batteries unless labeling 
requirements specified in the bill are met. Under some 
circumstances, the Environmental Protection Agency (EPA) could 
grant 2-year exemptions from this requirement. Section 104 
would exempt persons involved in the collection, storage, 
transportation, and recycling or proper disposal of certain 
rechargeable batteries from regulations governing hazardous 
waste. Title II would prohibit the sale of batteries containing 
mercury that was intentionally introduced during the 
manufacturing process.
    Impact on the Federal Budget. The bill would require EPA to 
enforce the provisions of this bill, to provide information to 
the public concerning proper handling and disposal of certain 
used rechargeable batteries, and to respond to petitions from 
manufacturers for exemption from the battery labeling 
requirements defined by S. 619. Based on information from the 
Agency, we estimate these activities would cost less than 
$500,000 annually.
    Section 5 could increase governmental receipts by creating 
new civil penalties under the provisions of the bill enforced 
by the EPA. CBO estimates that any such increase would be less 
than $500,000 annually.
    Impact on State and Local Governments. The bill would not 
impose any new enforceable duties on State and local 
governments and could produce some savings for them. In May 
1995, EPA issued its universal waste rule, which provides an 
exemption to handlers of rechargeable batteries similar to the 
exemption in Section 104 of this bill. However, in order to 
adopt the rule, each State authorized to administer and enforce 
the Resource Conservation and Recovery Act (RCRA) program must 
go through its own rulemaking procedure, which can take from 1 
to 3 years. Because this bill would provide the exemption 
immediately upon enactment, State and local governments that 
use rechargeable batteries would begin paying lower handling 
costs 1 to 3 years earlier than under current law. Annual 
savings for State and local governments during that time period 
would he a small portion of the $30 million annual national 
savings that EPA has estimated for the exemption in its 
universal waste rule.
    If you wish farther details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Kim Cawley, 
who can be reached at 226-2860, and for State and local costs, 
Pepper Santalucia, who can be reached at 225-3220.
            Sincerely,
                                 June E. O'Neill, Director.

                        Changes in Existing Law

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires publication of any changes in existing law made by the 
reported bill. This bill does not change existing law.

                                
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