Chemicals, Regulatory Developments

TSCA Mercury Reporting Rule Finalized

Section 8(b)(10) of the amended Toxic Substances Control Act (TSCA) directs the EPA to develop an inventory of mercury supply, use, and trade in the United States and, based on that inventory, recommend actions, including proposed revisions of federal law or regulations, “to achieve further reductions in mercury use.” To create the inventory, the section empowers the EPA to require that certain persons engaged in mercury manufacture or import report information about the amount of mercury associated with those activities. The Agency has now issued its final rule to implement the reporting requirements in Section 8(b)(10)(D). The requirements are somewhat complex since not all persons who possess mercury and are engaged in commercial activity are subject to reporting. Also, some persons who report information about mercury under other programs must report only the information not reported under those other programs. The first reports cover 2018 and will be due through electronic reporting by July 1, 2019, and every 3 years thereafter.

Mercury

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The reporting requirements apply to any person who manufactures (including imports) mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process. There is no mercury threshold either in the TSCA amendments or in EPA’s rule; in other words, any person who falls within the definition of a person who must report must do so regardless of the amount of mercury being used in the covered activities.

Both elemental mercury and mercury compounds are subject to reporting.

What to Report

Persons subject to the rule must report amounts of mercury in pounds used in the covered activities during a designated reporting year. Reporters also are required to identify specific mercury compounds, mercury-added products, manufacturing processes, and how mercury is used in manufacturing processes, as applicable, from preselected lists. For certain activities, reporters are required to provide additional, contextual data (e.g.,North American Industry Classification System (NAICS) codes for mercury or mercury-added products distributed in commerce).

Exemptions

The finalized reporting requirements do not apply to persons who do not first manufacture, import, or otherwise intentionally use mercury; persons who only generate, handle, or manage mercury-containing waste; persons who only manufacture mercury as an impurity; and persons engaged in activities involving mercury not with the purpose of obtaining an immediate or eventual commercial advantage.

Also, among those persons who must report, there is a subcategory of persons who are not required to provide certain data. Specifically, to avoid reporting that is unnecessary or duplicative, the Agency has finalized 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 Interstate Mercury Education and Reduction Clearinghouse (IMERC) Mercury-added Products Database, respectively. Such reporters are not required to respond to certain data elements of the mercury reporting application that are comparable to data they also report in response to CDR and IMERC reporting requirements.

Minamata Convention

The EPA points out that one side benefit of the rule is that it will assist the U.S. government in meeting its national obligations under the Minamata Convention on Mercury, to which the United States is a party. The Convention is an international environmental agreement intended to protect human health and the environment from anthropogenic emissions and releases of elemental mercury and mercury compounds. Article 3 of the Convention states that each party must “endeavour to identify individual stocks of mercury or mercury compounds exceeding 50 metric tons, as well as sources of mercury supply generating stocks exceeding 10 metric tons per year, that are located within its territory.”

The EPA has also adopted the Convention’s definition of mercury-added product, one of the central terms in the rule. According to the Convention and the final rule, a mercury-added productis “any formulated or fabricated product that contains mercury, a mercury compound, or a component containing mercury, when the mercury is intentionally added to the product (or component) for any reason.”

EPA’s final rule was published in the June 27, 2018, Federal Register (FR).