Audit, Compliance and Risk Blog

EPA is Expanding Mercury Reporting Requirements

Posted by Jon Elliott on Tue, Jan 30, 2018

Mercury.jpgOn June 22, 2016 President Obama signed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” revising the Toxic Substances Control Act (TSCA) TSCA extensively. I’ve written about the major programmatic changes here, here, and here. In addition to those Big Picture changes however, the 2016 Amendments provide a number of targeted revisions.

Among these, the 2016 Amendments require EPA to compile and report an inventory of mercury supply, use, and trade in the United States. EPA was directed to publish an initial inventory, covering elemental mercury and mercury compounds, in April 2017, and to publish updates at least every three years thereafter. EPA’s inventory is to identify any manufacturing process or product that intentionally adds mercury, and to recommend actions (including proposed statutory or regulatory revisions) to further reduce mercury use. The initial inventory was based on readily available information, but in order to gather more complete information for subsequent inventories EPA is to issue a rule by June 22, 2018, requiring periodic reporting from any person that manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process.

How Does TSCA Restrict Mercury Transactions?

Beginning in 2013, the Mercury Export Ban Act of 2008 (MEBA) applies TSCA authority to prohibit exports of elemental mercury (with very limited exceptions), provide for the domestic long-term management and storage of elemental mercury within the U.S., and prevent the sale of elemental mercury held by U.S. federal agencies. The 2016 Amendments expanded the export ban to include 5 named mercury compounds (mercury (I) chloride or calomel; mercury (II) oxide; mercury (II) sulfate; mercury (II) nitrate; and cinnabar or mercury sulphide) effective January 1, 2020 (except exports to the Organization for Economic Co-operation and Development (OECD) member countries for environmentally sound disposal).

The 2016 Amendments provide EPA with formal information collection and reporting requirements. For its initial report in April 2017, EPA compiled publicly available data on mercury supply, use, and trade in the United States.

What (Existing) Information Appears in the First Report?

Not surprisingly, EPA’s initial report identifies limitations to the data. As explained, “[t]hose limitations include: restricted scope of existing databases, outdated information, and lack of specificity on the supply, use and trade of elemental mercury and mercury compounds. Such general limitations, as well as those that are specific to the trade of elemental mercury and mercury compounds, are further discussed, as appropriate, in the sections that follow.” However, the agency was able to report information in the following categories:

  • Elemental Mercury:

    • Sources of supply – byproducts from metal mining and processing; and recovery from waste treatment

    • Uses of elemental mercury – for mercury-added products including switches and relays; dental amalgam; lamps; measuring devices; formulated products; batteries; and “other/miscellaneous”

    • Trade of elemental mercury – to connect sources with uses, including imports (24 metric tons in 2016) and exports (none since MEBA’s ban in 2013)

  • Mercury Compounds:

    • Sources of supply – EPA found limited data

    • Uses of elemental mercury – specialty chemicals

    • trade of elemental mercury – EPA found limited data

How is EPA Proposing to Expand Information Collection to Enhance Future Reports?

In October 2017, EPA issued a proposed Mercury Reporting Rule (proposed 40 CFR part 713, sections 713.1 – 713.25), requesting public comments (initially due by December 26, but deferred as of December 19 until January 11, 2018). Once adopted the Rule will establish reporting requirements for “persons” that “supply, use, and trade” mercury products in the U.S., including manufacturers/importers and those who use mercury in manufacturing processes, distributors, storage entities, and exporters. EPA expects these persons to cover dozens of different business sectors. Readers should note that the EPA’s proposal does not define “person”; most examples in EPA’s preamble discussion are “facilities” (rather than entity-level persons above the facility level in organizational terms, or operation- or process-level persons below the facility level).

Reporting requirements apply to elemental mercury, and to most mercury compounds (the Rule provides a non-exclusive list of 69 compounds, by name and Chemical Abstracts Service (CAS) number). However, the Rule expressly excludes mercury generated as a byproduct that is not used for commercial purposes, and mercury-containing waste. It also excludes persons who are only brokers and sellers of these materials that do not manufacture, import, or use the materials.

Reports would be due every 3 years, beginning with a report due July 1, 2020 covering calendar year 2018. EPA will establish electronic reporting procedures. In addition, persons subject to reporting would be required to maintain required records, for at least 3 years (covering a reporting year, until the next reporting year).

  • General reporting requirements for manufacturers and importers of mercury and mercury compounds

The general reporting threshold is 2,500 pounds of elemental mercury, or 25,000 pounds of mercury compounds manufactured or imported per year. Persons who meet either threshold must report the following information, as applicable:

  • Amount of mercury stored (lbs.)

  • Amount of mercury distributed in commerce (lbs.)

All other manufacturers and imports must report the following information, as applicable:

  • Amount of mercury manufactured (other than imported) (lbs.)

  • Amount of mercury imported (lbs.)

  • Amount of mercury exported (lbs.)

  • Amount of mercury stored (lbs.)

  • Amount of mercury distributed in commerce (lbs.).

In addition, the report must identify any of the specific mercury compounds identified in the rules, if present. Manufacturers and importers must also provide “contextual information” including county(ies) of origin for imports and destination for exports, North American Industry Classification System (NAICS) codes for mercury distributed in commerce.

  • General reporting requirements for manufacturers, importers and sellers of mercury-added products

Persons who sell mercury-added products, except a product that contains a component that is a mercury-added product, in Interstate Mercury Education and Reduction Clearinghouse (IMERC) Notification states must report, as applicable:

  • Amount of mercury in manufactured (other than imported) products (lbs.)

  • Amount of mercury in imported products (lbs.)

  • Amount of mercury in exported products (lbs.).

All other manufacturers and importers of mercury-added products (except a product that contains a component that is a mercury-added product, must report the following information, as applicable:

  • Amount of mercury in manufactured (other than imported) products (lbs.)

  • Amount of mercury in imported products (lbs.)

  • Amount of mercury in exported products (lbs.)

  • Amount of mercury in products distributed in commerce (lbs.)

In addition, the report must identify any of the specific categories or sub-categories of mercury-added products identified in the rules, if present. It must also provide “contextual information” including county(ies) of origin for imports and destination for exports, North American Industry Classification System (NAICS) codes for mercury distributed in commerce.

  • General reporting requirements for users of mercury-added products

Persons who otherwise intentionally use mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, must report the following information, as applicable:

  • Amount of mercury otherwise intentionally used (lbs.) in a manufacturing process

  • Amount of mercury stored (lbs.)

  • Amount of mercury in exported final product(s) (lbs.)

  • Amount of mercury in final product(s) distributed in commerce (lbs.).

In addition, the report must identify any of the specific categories or sub-categories of mercury-added products identified in the rules, if present. Reports must also provide “contextual information” including county(ies) of destination for exports, North American Industry Classification System (NAICS) codes for mercury distributed in commerce.

Self-Evaluation Checklist

Does the organization manufacture, import, process or use elemental mercury or any non-exempt mercury compounds?

If so, does the organization create and retain records that could be used to comply with EPA’s proposed rules?

Has the organization provided comments to EPA’s proposal?

Where Can I Go For More Information?

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com

 

photo credit: HUS0 A drop of Hg via photopin (license)

Tags: Hazcom, Environmental, Environmental risks, Health & Safety, tsca