On March 29, 2017, the U.S. Environmental Protection Agency (EPA) released its initial inventory report of mercury supply, use and trade in the United States pursuant to the requirements of the amended Toxic Substances Control Act (TSCA). This article outlines this development in the context of mercury regulation under the TSCA.
The 2016 TSCA amendments revised the law with the goal of minimizing mercury use. The revisions to Section 8(b) require the EPA to create an inventory of supply, use and trade of mercury and mercury compounds in the United States by April 1, 2017, and every three years thereafter. This provision will enable the EPA to identify opportunities for further mercury use reduction, which could occur through proposed revisions of federal law or mercury use regulations. The March report states that the EPA is focused on commodity mercury, as opposed to mercury that is handled and discarded as waste, and that, in some cases, the information is outdated.
Other TSCA revisions apply. The EPA must issue a final rule for periodic reporting of the manufacture of mercury or mercury-added products, or intentional uses of mercury in the manufacturing process, by June 22, 2018. The EPA is expected to propose a rule by December 2017. Entities engaged in generating, handling or managing mercury-containing waste will not be required to report unless they manufacture or recover mercury in the management of that waste. TSCA Section 3(2)(B) provides exemptions for chemical substances regulated under other federal statutes, such as drugs, pesticides, tobacco, and food or food additives. Importantly, the mercury definition language is written in a way that chemical substances usually exempt from TSCA will not be excluded from the mercury inventory and reporting provisions will apply to any and all mercury or mercury compounds, or any intentional use of mercury in a manufacturing process, including those used as or relevant to drugs, pesticides or other typically exempt purposes.
The revised TSCA also expanded Section 12(c), which originally addressed export of elemental mercury, to include mercury compounds. Section 12(c)(7), a new provision, prohibits the export of the following mercury compounds effective January 1, 2020: mercury (I) chlorine or calomel; mercury (II) oxide; mercury (II) sulfate; mercury (II) nitrate; cinnabar or mercury sulfide; and any mercury compound the EPA adds to the list upon determining that exporting that compound for regenerating elemental mercury purposes is technically feasible.
The EPA was required to publish an initial list of mercury compounds prohibited from export no later than September 20, 2016. This list will be updated in the future. There is a provision allowing interested parties to petition the EPA to add to the list of mercury compounds prohibited from export. The prohibition excludes exports of listed mercury compounds for environmentally sound disposal to member countries of the Organization for Economic Cooperation and Development (OECD). This exclusion doesn’t apply if the mercury or mercury compounds are to be recovered, recycled or reclaimed for use, or directly reused, after such export. By June 22, 2021, the EPA must provide a report to Congress that evaluates the mercury compound exports and management options in the U.S. for those mercury compounds.
In addition to amending the TSCA, the Lautenberg Act also amended the Mercury Export Ban Act of 2008. These provisions are not summarized here, but generally require that the U.S. Department of Energy have its long-term storage facility operational by January 1, 2019, extend the timeframe for temporary generator accumulation from 2013 to 2019, and provide information on storage fees to be paid by entities sending mercury to the storage facility by October 1, 2018.
Mercury has long been used as an industrial component in applications across many business sectors. These TSCA provisions will have an important impact on these uses. Interested parties should carefully monitor how the EPA proceeds with implementation of the Inventory and periodic reporting. The lack of definitional detail for “mercury compound” may be problematic given that mercury can and does occur naturally at low levels.
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).