Regulatory Developments

TSCA Mercury Reporting Rule Proposed by EPA

The 2016 amendments to the Toxic Substances Control Act (TSCA) included a provision at Section 8(b)(10)(D) to clarify the amount of elemental mercury and mercury compounds used in manufacturing processes in the United States along with the amount of mercury sold in products. The amendments instructed the Agency to promulgate a rule by June 22, 2018, establishing triennial reporting requirements for any person engaged in these activities. The EPA has now proposed its rule to implement the section.

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In administering the resulting mercury inventory, the amendments also direct that the Agency recommend actions, including proposed revisions of federal law or regulations, to achieve further reductions in mercury use.  The EPA states that 85 industry sectors would be potentially affected by the proposed rule.

Resolve Discrepancy

The need for a mercury inventory can be traced to 2015 when the EPA collected information on the quantity of mercury sold in the United States for 2010 and 2013 from five primary recyclers and distributors of mercury in the United States. The Agency was aware of information collected by the Northeast Waste Management Officials Association for its Interstate Mercury Education and Reduction Clearinghouse (IMERC).  For 2013, the IMERC data showed approximately 40 metric tons of mercury in mercury-added products sold in the country in 2013.  However, information collected by the Agency for bulk elemental mercury manufactured and processed in the United States for the same year was approximately 66 metric tons.

The EPA said it determined that mercury may be used in manufacturing processes, including as a reactant or formulation component, which may not be reflected in the amount of mercury reported as sold in products. An additional data gap was the amount of mercury in exported mercury-added products.  The EPA says it also wants to be able to differentiate between the amount of mercury in imported mercury-added products and the amount in mercury-added products manufactured in the United States. For example, importation or domestic manufacture of mercury-added products may or may not be reflected in data reported as domestic sale of mercury-added products.

“EPA is committed to further addressing such data gaps and considers the national mercury inventory mandated by Congress to be an instrumental means to establish the requisite body of information to support achievement of that goal,” says the Agency.

Proposed Requirements

The proposal would establish two sets of reporting requirements.  The first would apply to persons who manufacture (including import) mercury-added products, except a product that contains a component that is a mercury-added product, and who currently report to the IMERC.  These persons would need to report:

  • Amount of mercury in manufactured products;
  • Amount of mercury in imported products;
  • Country(ies) of origin for imported products;
  • Amount of mercury in exported products;
  • Country(ies) of destination for exported products;
  • NAICS code(s) for products distributed in commerce; and
  • As applicable, specific product category(ies) and subcategory(ies) from a preselected list.

The second set of requirements would apply to persons who otherwise intentionally use mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product.  These persons would need to report:

  • Amount of mercury intentionally used in a preselected list of manufacturing processes;
  • Amount of mercury stored;
  • Amount of mercury in exported final product(s);
  • Country(ies) of destination for exported final product(s);
  • Amount of mercury in final product(s) distributed in commerce;
  • NAICS code(s) for mercury in final product(s) distributed in commerce;
  • As applicable, specific manufacturing process from a preselected list; and
  • As applicable, specific use of mercury in the manufacturing process from a preselected list.

Exemptions

The proposed reporting requirements would not apply to persons engaged in the generation, handling, or management of mercury-containing waste, unless that person manufactures or recovers mercury in the management of that waste with the intent to use the recovered mercury or store it for use. In addition, persons engaged in trade (e.g.,brokering, selling wholesale, shipping, warehousing, repackaging, or retail sale), but who do not first manufacture mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, would not be required to report. Finally, in an effort to avoid reporting that is unnecessary or duplicative, the Agency is proposing certain exemptions for persons who already report for mercury and mercury-added products to the TSCA Section 8(a) Chemical Data Reporting (CDR) rule and the IMERC.

The proposal was published in the October 26, 2017, Federal Register (FR).

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