Public Comments Received by October 2, 2012

679 Pages·2012·30.12 MB·English

October 1, 2012
Sent Via Email: [email protected]
Krysia Von Burg
Regulations Coordinator
Regulations Section
Department of Toxic Substances Control
PO Box 806
Sacramento, CA 95812-0806
Re: Comments on 45-Day
(DTSC Reference Number: R-2010-03, OAL Reference NumberZ-2012-080705)
Ms. Von Burg,
The Air Conditioning Contractors of America (ACCA) appreciate the opportunity to provide
comments on the 45-day public notice for the mercury thermostat collection and performance
requirement. As the only nationwide association representing the technical, educational and
policy interests of small and large businesses that design, install and maintain indoor
environmental systems, ACCA takes special interest in this issue. ACCA supports the goal of
reducing and eventually eliminating mercury from California’s landfills with proper disposal of
mercury thermostats. To this end, ACCA has partnered with the Thermostat Recycling
Corporation (TRC), a non-profit corporation voluntarily founded by thermostat manufacturers
for the purpose of collecting and property disposing mercury thermostats.
While it is encouraging to see that the latest proposed regulation language removes the excessive
contractor detailed information disclosure requirements and costly citations, ACCA remains
concerned about the practicality and feasibility with the current proposal. The proposed
requirement for contractors to disclose license numbers at drop off locations and the record
keeping burdens associated with this requirement poses a number of problems for contractors
and distributors alike. ACCA is concerned that contractor’s confidential business information
may be compromised while generating more burdens for distributors and create an additional
incentive for noncompliance.
As ACCA stated in the October 19, 2011, comments on the proposed regulations, contractors in
California already comply with California law and properly dispose of mercury thermostats
through the TRC program. For this regulation to accomplish its goal it must be simple and
flexible so that nothing hinders participation. In agreement with Heating, Air-Conditioning &
Refrigeration Distributors International (HARDI), ACCA requests the elimination of language
requiring the reporting and disclosure of contractor license numbers and information. ACCA
believes this increased requirement would have the opposite desired effect. This concept of
collecting contractor license numbers is not well founded or researched.
Any step that fundamentally alters the simplicity of the program needs to be weighed against any
perceived benefits of the change. It is well understood that economics and convenience are
critical factor in any recycling program[1]. Currently, using any of TRC’s collection locations in
California to properly dispose of thermostats requires nothing more than dropping the thermostat
in the collection bin. HVACR Technicians simply place whole thermostats in the provided
collection container. Requiring a technician to record a CSLB Number on a bag or container
with thermostats reduces convenience. At the same time the use of additional package would
decrease bin volume requiring more frequent bin shipments and add to TRC’s administrative
costs with additional handling and disposal of the packaging. For the collection location it takes
around 5 minutes to prepare the collection bin for shipment. Adding the step of reporting the
CSLB Number at a collection location fundamentally alters the process for both the collection
point and program participant. Finally, additional transaction costs (e.g. providing number,
recording number, requiring staff assistance with recycling) will result in less recycling rather
than more.

ACCA comments that it is also unclear how CSLB Numbers will be captured and reported to
TRC. Would the collection points use log sheets and include them in the bin or would they
create electronic records and transmit them? ACCA has some familiarity with information
disclosure requirements and notes the potential volume of data to be captured and
reported. There are 11,449 active C-20 licenses in California and according to the Bureau of
Labor Statistics a minimum 17,000 HVAC technicians.[2 Assuming an average of 3 thermostats
per transaction, under the proposed performance requirements the regulation contemplates
approximately 49,000 transactions be recorded and reported annually. As a CSLB license
certifies the business not the technician, it is unclear how the CSLB number or the absence of a
CSLB number (or the frequency the number was reported) is a valid indicator of compliance
with the requirement to recycle mercury-added thermostats.

Proper disposal of mercury thermostats is already required by law under the Universal Waste
Rules. The majority of our contractors act in accordance with these rules, but as with any
industry, there are some who will choose not to comply. Experience in our industry has
informed us that there is indeed a correlation between additional requirements and the regulatory

[1] Shaufique F. Sidique, et al, The Effects of Behavior and Attitudes on Drop-off Recycling Activities, Resource
Conservation and Recycling 54 (2010) 163-170.
[2] Estimate undercounts total number of technicians as it does not include self-employed workers. Available at:
http://www.bls.gov/oes/current/oes499021.htm#(1).
program’s ultimate success. The more inconvenience associated with mercury switch recycling,
the greater the risk for non-compliance by those who will choose to take the easier, less
burdensome path.

The success of regulations on service technicians of any industry struggles with compliance
when there is a heavy administrative burden and a low level of enforcement. As you may be
aware, HVACR technicians must be properly certified to recycle or reclaim ozone depleting
refrigerants under the US EPA’s Section 608 Refrigerant Recycling Rule. The rule is designed to
limit emissions during maintenance while encouraging the reuse of those refrigerants through
recovery, recycling and reclamation. Enforcement by the EPA is lax, especially at the individual
technician level. Part of the problem is there are few resources to enforce the laws and no
evidence remains when a technician has illegally vented refrigerant into the atmosphere. While
the laws are in place to protect the environment and the upstanding contractor, the process to
evacuate the system adds time to a job and the cost of the required equipment is significant. As a
result, there is little or no penalty for non-compliance and the amount of CFC and HCFC
refrigerants that are recovered, recycled, and reclaimed have remained well below EPA’s
expectations.

ACCA supports comments submitted by TRC and made by sister trade associations in the
heating, ventilation and air conditioning (HVAC) community which highlight additional relevant
points of concern.
Respectfully submitted,

Emily Rogers
Director, Energy Policy
Krysia Von Burg, Regulations Coordinator
Regulations Section
Department of Toxic Substances Control
P.O. Box 806
Sacramento, CA 95812-0806
E-mail: [email protected]

Re: Comments on Proposed Regulation on Mercury Thermostat Collection and Performance
Requirements: Department Reference Number: R-2010-03

Dear Ms. Von Burg:

These comments are submitted by the Air-Conditioning, Heating, and Refrigeration Institute
(AHRI) in response to the Department of Toxic Substances’ Mercury Thermostat Collection and
Performance Requirement (August 2012) Division 4.5, Title 22, California Code of Regulation,
Chapter 24.

AHRI is the trade association representing manufacturers of heating, cooling, water heating,
and commercial refrigeration equipment. More than 300 members strong, AHRI is an
internationally recognized advocate for the industry, and develops standards for and certifies the
performance of many of the products manufactured by our members. In North America, the
annual output of the HVACR industry is worth more than $20 billion. In the United States alone,
our members employ approximately 130,000 people, and support some 800,000 dealers,
contractors and technicians.

AHRI supports efforts to collect and properly dispose mercury-containing thermostats.
Unfortunately, the Department of Toxic Substances Control’s (DTSC) proposed rulemaking, as
currently written, will not achieve its intended purpose. The proposed regulation will require the
collection of more thermostats than can possibly be collected and cause an unnecessary
burden on manufacturers. In addition to proposing thermostat collection rates that are simply
not feasible, the proposed regulation adds reporting requirements that are burdensome to
manufacturers and that may serve as a disincentive to recycling.

AHRI has reviewed the study by Skumatz Economic Research Associates’ (SERA) and finds it
highly questionable. We believe that the DTSC should not base its estimate of mercury-
containing thermostats on an unconvincing study or posit unexplained recovery rates.

In addition, AHRI has two major issues with the proposed rule as discussed below:

Issue 1 – Estimated Annual Flow of Mercury-Containing Thermostats

Section 66274.4 of the proposed rule, Methodology for Determining the Number of Out-of-
Service Mercury Added Thermostats Becoming Waste Annually, relies primarily on a single
study by SERA. However, the study has not been peer reviewed and cannot, in our opinion, be
used to justify the proposed regulation. In addition, we have few concerns with the study:

2111 Wilson Boulevard | Suite 500 | Arlington | Virginia | 22201-3001 USA
PHONE [phone] | FAX [phone] | www.ahrinet.org
2

 The baseline estimate of mercury thermostats in California is based on web survey
results where home and business occupants were asked to decipher between mercury
containing and non-mercury containing thermostats and report accordingly. As a result,
SERA notes that “data used for [the SERA] analysis are imperfect. It is based on recall
of current occupants, some of whom have been in the location a long time, and some
were newer”. Baseline data for a study of such regulatory influence should be collected
by trained professionals, not by a random selection of lightly-incentivized citizens who
have varying degrees of experience in their homes or businesses.

 The validation method relied on 30 site visits in the San Francisco Bay Area. However,
California’s cities and towns have diverse building types, climatic zones, supply chains,
industries, levels of education, etc. The ability of citizens across California, in different
types of buildings, cannot be generalized with a validation of such a small size in such a
specific geography.

AHRI recommends that DTSC revise its estimated number of thermostats available for
collection in accordance with the methods used in Canada’s Switch the ‘Stat program.
Canadian requirements utilize shipment data provided by HVAC manufacturers and contractors
as a basis for estimating the quantity of thermostats available for collection1.

One part of the underlying studies surveyed contractors and asked what percentage of the
programmable thermostats they were replacing were mercury thermostats. Undoubtedly, HVAC
contractors have a higher and less variable judgment of the mercury content of a thermometer
than the population of California. Once finalized, the results of the survey were compared to
national statistics on the percentage of households with programmable thermostats. AHRI
suggests that a similar study be conducted in California and compared to the results of the
SERA study.

Issue 2 – Annual Collection Rate Performance Requirements

The proposed regulation’s annual collection rates are arbitrary and overly aggressive. Instead of
providing empirical data, the DTSC compares historic collection rates per capita in California,
Maine, Vermont and Maryland, in an attempt to justify the proposed increased collection levels.
The comparisons are invalid for the following reasons (among others):

 California’s housing stock is younger and of different type than that in Vermont, Maine
and Maryland and older buildings are more likely to contain mercury thermostats.

 The climate zones and heating, ventilation, and air-conditioning equipment markets are
different from state-to-state, particularly between the east and west coasts. The
utilization and removal of mercury thermostats are correlated with the types and lifetime
of various HVAC products.

 Each state has imposed various collection programs that have affected the respective
historical collection rates.

1 Switch the ‘Stat stewardship plans for British Columbia, Ontario, and Manitoba.  For the methods used to 
determine feasible collection rates, see appendix F See appendix of the British Columbia plan.  
http://www.switchthestat.ca/eng/stewardship‐plans.php
3

o California’s Title 24 building codes (created in 1978) have been instituted for
decades, are unique among the compared states, and have steered HVAC
installers away from mercury thermostats and towards programmable (also
known as “setback”) thermostats. The current version of the Title 24 codes
states, “Heating systems shall be equipped with thermostats that meet the
setback thermostat requirements of Section 112(c)” and “When a space-
conditioning system is altered by the installation or replacement of the air
handler, outdoor condensing unit of a split system air conditioner or heat pump,
cooling or heating coil, or the furnace heat exchanger, the following
requirements shall be met; Non-setback thermostats shall be replaced with
setback thermostats”2.

o Maryland’s high collection rates in 2009 and 2010 are due to a demand
response program passed by legislators in 2008 and implemented by the
Baltimore Gas and Electric (BGE) utility. The rate-payer funded program offered
free setback thermostats in exchange for allowing the utility to adjust
temperature set points during periods of peak load. Over 300,000 BGE
customers have participated in the program and resulted in the collection of over
70,000 mercury containing thermostats. While California has fewer mercury-
containing thermostats per capita than Maryland and will not achieve the same
high collection rates generated during the peak of the BGE program, DTSC
should consider a similar demand-response program in California in the coming
years.

Due to the reasons stated above, AHRI finds it highly likely that California has a fundamentally
different amount and flow of mercury containing thermostats per person, than that in Maine,
Vermont, and Maryland and suggests additional study on the topic.

Conclusions

The DTSC builds its proposed regulation upon an unverified estimate of mercury thermostats in
use in California from a study that has not been peer reviewed. Additionally, the collection rates
proposed by DTSC are not justified, not feasible, and will likely increase burden on
manufacturers. AHRI supports thermostats’ collection programs such the one established by
the Thermostat Recycling Corporation (TRC). Since 2002, the program has recycled over six
tons of mercury. We would be in support of a program that would help TRC collect more
thermostats. AHRI recommends that DTSC reconsider its proposal in collaboration with the
TRC, an experienced organization with the single mission of making it easier to recycle mercury
thermostats.

Sincerely,

Jonathan Lemmond, Regulatory Engineer

2 2008 Building Energy Efficiency Standards for residential and nonresidential buildings. California Energy 
Commission. CEC‐400‐2008‐CMF. http://www.energy.ca.gov/2008publications/CEC‐400‐2008‐001/CEC‐400‐2008‐
001‐CMF.PDF
ARNOLD & PORTER
LLP
Sara J. Eisenberg
Sara. [email protected]
+1415.471.3112
+1415.471.3400 Fax
7th Floor
Three Embarcadero Center
San Francisco, CA 94111 ·4024
October 1, 2012
VIA FEDERAL EXPRESS AND E-MAIL
Krysia Von Burg
Regulations Coordinator
Department of Toxic Substances Control
1001 I Street, 22nd Floor
Sacramento, CA 95814-2828
E-mail: [email protected]
Fax Number: [phone]
Re: Mercury Thermostat Collection and Performance Requirements
Dear Ms. Von Burg,
On behalf of Honeywell International Inc. ("Honeywell"), we respectfully
submit the following comments on the proposed Mercury Thermostat Collection
and Performance Requirements ("Regulations"). Based on our review of the
Regulations and the information available in the rulemaking file, 1 there are several
aspects of the Regulations that require further analysis and/or modification.
1 It is difficult for us to meaningfully evaluate and comment upon the proposed
Regulations because the rulemaking file contains very little supporting
information. See Exhibit 1 (Sept. 5,2012 Email from DTSC to Christopher
Roberts; attachments to the DTSC email consist of (l) the Public Notice, (2) the
Proposed Text, (3) the Initial Statement of Reasons, (4) a copy of the MTCA, (5) a
CEQA Notice ofExemrtion, (6) a Form 399 Economic Impact Statement and (7)
an Economic and Fisca Impact Analysis). Moreover, in response to our attempt
to obtain additional information through a Public Records Act request, we were
informed that documents could not be produced until to October 5 (three days
after the comment period closes). See Sept. 14, 2012 Letter from Robert Sullivan
Footnote continued on next page
Krysia Von Burg
Page 2
1. The Methodology For Calculating The Number Of Out-Of-Service
Mercury-Added Thermostats Becoming Waste Annually Is Flawed.
Section 66274.4 of the proposed Regulations establishes a methodology for
determining the number of out-of-service mercury-added thermostats that become
waste annually. DTSC has chosen to rely entirely on the SERA Report for
establishing this critical waste thermostat baseline. But the SERA Report is
deeply flawed. Indeed, the study itself identified numerous problems that resulted
in "count" and "flow" estimates that do not provide a useful basis for
extrapolation.
For example, to determine the number of mercury-added thermostats in
California, the study relied on respondents to count and identify the type of
thermostats in their homes and businesses. Digital thermostats do not contain
mercury. Other types of thermostats (e.g., square, round, snap, lever, etc.) mayor
may not contain mercury. Removing the cover of a non-digital thermostat is the
only way to definitively determine ifthe device contains mercury, but DTSC did
not permit SERA to ask respondents to do so. Rather, respondents were simply
told to identify the type ofthermostat(s) (e.g., programmable, square, round, snap,
lever, etc.) in their home or business. SERA Report at 12. The onsite survey
discussed below later determined that several respondents failed to accurately
count the number of thermostats in their homelbusiness or accurately identifY the
type.
SERA then conducted a "very small (30 observations)" on-site validation
survey to determine the percentage of these non-digital thermostat types that
contain mercury (id. at Note to Table 1.1) and then used that data to extrapolate a
"lower estimate" of the share of thermostats in California that are mercury
containing. Id. at Table 1.1. But 30 site-visits (which equates to 3.5% of
respondents) is too small of a sample to yield meaningful results.2 Indeed,
Footnote continued from previous page
to Sara Eisenberg (attached hereto as Exhibit 2). And, notably, although the Initial
Statement of Reasons provides web addresses for some of the "Reports Relied
On" by the Department of Toxic Substances Control ("DTSC") the documents are
not, in fact, available at those websites. See Exhibits 3-5.
2 The inability of such a small sample to yield meaningful and valid results is
evident from the fact that the SERA Report concluded, based on the small survey,
that 100% of snap thermostats contain mercury. See SERA Report at Table 1.4
(lower estimate of 100% for snap thermostats based on validation survey). This is
demonstrably false. See Ex. 6 (mercuryfree snap thermostat that is virtually
Footnote continued on next page
Krysia Von Burg
Page 3
because the field validation survey was so small, the SERA Report itself
acknowledges that the estimate is imperfect and that the actual share of mercury
models may be lower than the "lower estimate." ld. at Note to Table 1.1.
Moreover, there is no indication of how the 30 respondents who received
site visits were selected or whether those respondents were typical of respondents
in general. Indeed, there is reason to believe they were not. Despite the fact that
this was a statewide survey, all of the site visits occurred in a few, relatively
homogeneous counties in the Bay Area. It is not possible to validate the findings
of a statewide analysis through such a limited follow-up in a small geographic area
of the state. And if the respondents who received visits were not typical-i. e., if
they were less likely to have purchased mercury free non-programmable
thermostats (due to economic, geographic, demographic or other reasons)-the
results may have been further skewed by the selection process.
Finally, a recent study determined that 19% of households in California
have no thermostat at all. See Therese Peffer, et al., How People Use Thermostats
in Homes: A Review, 46 Building and Environment 2529,2533 (2011) (hereafter
"How People Use Thermostats") (attached hereto as Exhibit 7). This fact was not
taken into account in the SERA Report, which assumes that there are 1.2
thermostats in every California household. As a result, the total number of
thermostats in California (and the number of mercury-added thermostats derived
therefrom) is likely to be significantly lower than estimated in the SERA Report.
SERA's methodology to predict the annual "flow" of thermostats out of
buildings is also flawed. To make this prediction, the study relied on respondents'
memories of when the thermostats were last replaced. As the Report
acknowledges, this data, which is based on the recall of current occupants is
"necessarily imperfect" (SERA Report at 18 n.26)-especially since "younger
households may not know when the home was remodeled for a thermostat
replacement." ld. at 17.
As a result of these flaws, the waste thermostat baseline determined by the
SERA Report and utilized in the proposed Regulations is not sound.
Footnote continued from previous page
identical in appearance to the picture of the snap thermostat provided in SERA's
questionnaire).
Krysia Von Burg
Page 4
II. The Annual Collection Rate Performance Requirements Are
Unreasonable.
Section 66274.5 ofthe proposed Regulations sets out annual collection rate
performance requirements of30% (65,100 thermostats) in 2013, 45% (95,400
thermostats) in 2014,55% (113,850 thermostats) in 2015,65% (131,300
thermostats) in 2016, 75% (147,750 thermostats) in 2017, and 75% in 2018 and
subsequent years. Given the unsound and inflated waste thermostat baseline
established in Section 66274.4, these rates translate into an unreasonably high
number of thermostats which must be collected each year.
In the last several years the Thermostat Recycling Corporation ("TRC")
which was voluntarily founded by Honeywell, White-Rodgers and General
Electric in 1998-has implemented a multi-faceted effort to increase mercury
added thermostat collection and recycling. ] TRC has recruited wholesalers at
trade shows and industry meetings, reached out directly to distributors, earned
media coverage through trade press and purchased advertising. TRC has
employed-and continues to employ-numerous strategies to elicit wholesaler
participation in the thcrmostat recycling program in California, including:
• Direct mail to managers of facilities in California and corporate
headquarters;
• Earned media on the legal obligation to collect waste thermostats in
California and other states;
Even before co-founding the TRC in 1998, Honeywell had engaged in
3
substantial efforts to recycle mercury-added thermostats. As early as 1985,
Honeywell began its own pilot programs in Minnesota to recycle end-of-life
mercury-containing thermostats through distributors, contractors, and
homeowners. These programs were developed in conjunction with, and under the
guidance and authority of, the Minnesota Pollution Control Agency ("MPCA"),
where Honeywell was based at the time. Honeywell proposed thermostat take
back programs to the EPA in May and October 1992, and to the MPCA in January
and August of 1992 and February 1993. On October 17, 1994, Honeywell and
MPCA jointly announced the availability of a homeowner mail-in program for
end-of-life mercury thermostats from Minnesota residents, and in late 1994-early
1995, Honeywell requested authorization from the MPCA to operate a national
program. Shortly thereafter, Honeywell, White-Rodgers and General Electric
began discussions with the National Electrical Manufacturers Association about
managing a national program on the industry's behalf, and by 1998 TRC was
formed as an independent not-for-profit corporation.