In re Electronic Industries Alliance

In re Electronic Industries Alliance (2004-469); 179 Vt. 539; 889 A.2d 729

2005 VT 111

[Filed 06-Oct-2005]

                                 ENTRY ORDER

                                 2005 VT 111

                      SUPREME COURT DOCKET NO. 2004-469

                               JUNE TERM, 2005

  In re Appeal of Electronic 	       }	APPEALED  FROM:
  Industries Alliance                  }
                                       }
                                       }
       	                               }	Agency of Natural Resources
                                       }	
   	                               }
                                       }	DOCKET NO. 2004-1


             In the above-entitled cause, the Clerk will enter:

       ¶  1.  The Electronic Industries Alliance (EIA), a national trade
  organization, appeals from a declaratory ruling of the Secretary of Natural
  Resources, made pursuant to 3 V.S.A. § 808, that Vermont's mercury-added
  consumer product labeling law, 10 V.S.A. § 6621d, requires labeling of
  products containing lamps that, in turn, contain mercury.  EIA argues that
  the requirement is inconsistent with the statute and the implementing rules
  adopted by the Department of Environmental Conservation, and, as a result,
  imposes a requirement of general applicability for which DEC was required
  to promulgate a rule.  We hold that the Secretary properly interpreted the
  statute and rules and, as a result, we do not need to reach EIA's second
  argument.  We affirm.

       ¶  2.  EIA represents manufacturers of computers with liquid crystal
  display (LCD) computer screens that contain lamps, which, in turn, contain
  mercury.  The dispute here centers around a mandated label that "must
  clearly inform the purchaser or consumer that mercury is present in the
  item and that the item may not be disposed of or placed in a waste stream
  destined for disposal until the mercury is removed and reused, recycled, or
  otherwise managed to ensure that it does not become part of solid waste or
  wastewater."  10 V.S.A. § 6621d(a).  The labeling requirement helps ensure
  that "labeled mercury-added consumer products" are not placed in landfills. 
  Id. § 6621a(a)(7).  EIA argues that only the lamp within the computer
  screen must be labeled.  The Secretary ruled that the label must appear on
  the computer.

       ¶  3.  The issue is primarily one of statutory interpretation.  The
  statute prohibits a manufacturer from selling "any of the following items .
  . . if they contain mercury added during manufacture, unless the item is
  labeled."  Id.  § 6621d(a).  The statute requires the following items to be
  labeled:
   
    (1) A thermostat or thermometer.
    (2) A switch, individually, or as part of another product.
    (3) A medical or scientific instrument.
    (4) An electric relay or other electrical device.
    (5) A lamp.
    (6) A battery, sold to the public, other than a button battery.

  Id.  Primary responsibility for affixing labels lies with the manufacturer. 
  Each manufacturer required to label must certify annually that it has
  developed a labeling plan "that complies with this section and any
  administrative labeling rule adopted by the agency of natural resources." 
  Id.  "The labeling plan shall include detailed descriptions of the products
  involved and the label size, material, content, location, and attachment
  method for each product and for product packaging, where necessary under
  the rules, so a label is clearly visible at time of purchase."  Id.  The
  statute required the Agency to adopt rules to "establish standards for
  affixing of labels, in compliance with federal law, either to the product
  or to the package."  Id. § 6621d(f). 

       ¶  4.  The Agency of Natural Resources adopted rules creating
  labeling standards for mercury-added consumer products listed in 10 V.S.A.
  § 6621d(a).  Among the standards are that

    (2) A label must be clearly visible and legible to consumers prior
    to purchase of the product.  The label must be located on a
    surface of the product that is visible during installation and
    removal.
    (3) For labels affixed to products, the required words or symbols
    must be printed, mounted, molded, or engraved on the surface of
    the product using materials sufficiently durable to remain legible
    for the useful life of the product.
    (4) For products with enclosed mercury-added switches, both the
    enclosed device and the larger product must be labeled.

       Vermont Solid Waste Management 6-803(b)(2)-(4), 8 Code of Vermont
  Rules 12 063 003-58

       ¶  5.  EIA bases its argument, almost exclusively, on the treatment
  of switches in the statute and rules.  Unlike the other items in the
  statute, switches must be labeled "individually, or as part of another
  product."  10 V.S.A. § 6621d(a)(2).  Because the descriptive words are
  absent from the other items in the statute, EIA argues that the other items
  do not have to be labeled "as part of another product."  Further, according
  to EIA, the language of Rule 6-803(b) which requires that "both the
  enclosed device and the larger product . . . be labeled" for switches, but
  omits any such requirement for other items, including lamps, reinforces its
  argument.
        
       ¶  6.  The Secretary rejected EIA's argument because it "would
  render the statute's purpose virtually meaningless."  The Secretary
  reconciled the language in the statute and the rule by specifying that for
  switches, labels must be affixed to both the item and the larger product,
  but for other items a label need only be affixed to the larger product. 
  The Secretary noted that only the manufacturer knows whether or not a
  product contains mercury and "[i]f consumers do not know about the presence
  of mercury in their products, they cannot dispose of the products
  properly."  The Secretary also noted that the sentences of the statute
  requiring a labeling plan and specifying the content of the plan refer to
  "product" or "products," terms that refer to the thing containing the items
  specified in the statute.  Finally, the Secretary noted that the only way a
  label can be "visible at the time of purchase," as the statute requires, is
  if it is placed on the larger product that contains the item that, in turn,
  contains the mercury.

       ¶  7.  We construe the statute under a deferential standard of
  review.  Absent a compelling indication of error, we must sustain the
  construction of a statute by the agency responsible for its execution.  See
  Laumann v. Dep't of Pub. Safety, 2004 VT 60, ¶ 7, 177 Vt. 52, 857 A.2d 309.  Similarly, we must defer to the agency's interpretation of its rule. 
  In re S.M., 2003 VT 41, ¶ 6, 175 Vt. 524, 824 A.2d 593 (mem.).  In
  interpreting a statute, we give effect to the intent of the Legislature. 
  Rochon v. State, 2004 VT 77, ¶ 8, 177 Vt. 144, 862 A.2d 801.  To
  determine whether the Secretary's interpretation of the statute is
  consistent with the intent of the Legislature, we must look at "the whole
  statute, its effects and consequences, and the reason and spirit of the
  law."  Laumann, 2004 VT 60, ¶  7.  "If the statute's meaning is plain and
  unambiguous, we enforce the statute as written."  Rochon, 2004 VT 77, ¶
  8.

       ¶  8.  We cannot find the meaning of the governing statute, § 6621d,
  to be plain and unambiguous.  If anything, it is the Secretary's
  interpretation that appears to be most consistent with the apparent intent
  of the Legislature, particularly the requirement that a label be "clearly
  visible at the time of purchase."  EIA's construction of the statute would
  make that requirement illusory, except in the case of switches, because no
  consumer will see a label if it is placed on a product enclosed within
  another product.  Thus, the labeling of five out of six of the items
  explicitly covered by the statute will be invisible to the consumer unless
  the consumer buys the item alone, and not as part of a larger product.

       ¶  9.  Our conclusion is also influenced by the nature of EIA's
  statutory construction argument.  EIA is relying on the statutory
  construction maxim evinced by the latin phrase "expressio unis est exclusio
  alterius"-the expression of one thing is the exclusion of the other.  Here,
  EIA takes the statutory language requiring the labeling of a switch that is
  "part of another product" to mean the exclusion of such a labeling
  requirement for other items, such as lamps, for which no similar language
  appears in the statute.  Statutory construction maxims are aids to
  construction and not hard rules.  See Caledonian-Record Pub. Co. v. Walton,
  154 Vt. 15, 25, 573 A.2d 296, 302 (1990).  They are "routinely discarded
  when they do not further a statute's remedial purposes."  Clymer v.
  Webster, 156 Vt. 614, 625, 596 A.2d 905, 912 (1991).  The maxim on which
  EIA relies "is relatively weak among rules of statutory construction."  Oxx
  v. Dep't of Taxes, 159 Vt. 371, 375, 618 A.2d 1321,1324 (1992).  As we
  discussed in Clymer, the special language applicable to one item in a list
  may be to emphasize its availability for that item, and not to exclude its
  availability for other items.  Clymer, 156 Vt. at 626, 596 A.2d  at 912-13. 
  Thus, we held that language that explicitly allows loss-of-companionship
  damages to parents from the death of a minor child does not exclude the
  court from awarding such damages for the death of an adult child.  Id.
        
       ¶  10.  Given the relatively weak effect of the maxim on which EIA
  relies, we cannot conclude that it overrides the deference we must pay to
  the interpretation of the Secretary, the intent of the Legislature, the
  words chosen, and the effect of EIA's construction of the statute.  We
  hold, therefore, that the statute requires manufacturers to label products
  that contain specified items that, in turn, contain mercury.  The Secretary
  properly interpreted the meaning of the statute and the implementing rules.

       ¶  11.  Because of our disposition of the statutory construction
  question, we need not reach EIA's contention that the Agency improperly
  imposed the package-labeling requirement without going through rule-making.  

       Affirmed.      



                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned