The U.S. Environmental Protection Agency (EPA) continues to implement reporting requirements pertinent to the supply, use and trade of mercury in the United States. This column provides more information and a closer look into the EPA’s October 2017 proposed rule.

The 2016 amendments to the Toxic Substances Control Act (TSCA) call for the EPA to establish periodic mercury reporting requirements for manufacturers of mercury or mercury-added products or those that use mercury in a manufacturing process to assist in developing an inventory of mercury and other recommended actions. These other actions include potentially revising federal law or regulations to achieve further reductions in mercury use.

Under a proposed rule issued October 27, 2017, the EPA would require reporting on the intentional manufacture, import, distribution in commerce, storage and export of mercury. The new TSCA precludes required reporting related to the generation, handling or management of mercury-containing waste, unless mercury is recovered in the management of such waste. The federal government would use the information to assist in implementing the Minamata Convention, a multilateral environmental agreement that addresses mercury supply, use and trade.

Under the rule, “mercury” applies to elemental mercury and mercury compounds, including all instances where these react with another chemical substance. Importantly, the definition of “mercury” under TSCA Section 8(b)(10)(A) supersedes the exclusions for chemical substances under TSCA Section 3(2)(B), meaning the rule would apply to all chemical substances that contain mercury, including chemicals not regulated under the TSCA.

The TSCA requires the EPA to establish periodic mercury reporting requirements to assist in developing an inventory of mercury supply, use and trade in the United States. To create such an inventory, the agency proposes required reporting for the import of mercury or a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage for the importer, with certain stated exemptions. For example, the proposed rule exempts the incidental manufacture of mercury and the generation of mercury byproducts and mercury-containing waste. The EPA is not suggesting a reporting threshold under the proposed rule. This means that any amount of mercury manufactured in, imported from, or otherwise used in the United States that isn’t otherwise exempt must be reported. The EPA will include articles in the reporting requirements to collect data on mercury compounds and mercury-added products. Exports of elemental mercury from the United States have been prohibited since January 1, 2013 and are not included in the required reporting.

To streamline the process and reduce the reporting burden, EPA has proposed developing a user-friendly reporting application, consisting of questions that include fill-in-the-blank (numbers) fields, check boxes and drop-down menus based on pre-selected lists that are described in detail in the proposed rule. The EPA suggests the following general reporting requirements, as applicable:
• amount of mercury manufactured (other than imported) (lb);
• amount of mercury in manufactured (other than imported) products (lb);
• amount of mercury imported (lb.);
• amount of mercury in imported products (lb);
• amount of mercury exported (lb) (subject to certain exceptions);
• amount of mercury in exported final product(s) (lb);
• amount of mercury stored (lb);
• amount of mercury distributed in commerce (lb);
• amount of mercury in final product(s) distributed in commerce (lb);
• amount of mercury in products distributed in commerce (lb);
• and amount of mercury otherwise intentionally used (lb) in a manufacturing process.

The EPA proposes a July 1 reporting deadline for 2019 and every three years thereafter, and states that data submitted should cover only the calendar year preceding the year in which the reporting deadline occurs.

Final Note

Expect the EPA to receive many comments on the proposal, as reporting rules typically generate much attention. The EPA did a good job translating Congress’s intent, and is mindful of imposing potentially duplicative reporting requirements. For stakeholders with mercury-content interests, this proposal is one to watch.

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LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at lbergeson@putman.net

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.