Audit, Compliance and Risk Blog

EPA Adopts Rules to Expand Mercury Reporting

Posted by Jon Elliott on Tue, Aug 14, 2018

Mercury 1Among its many provisions, the 2016 Amendments to the Toxic Substances Control Act (TSCA) require EPA to compile and report an inventory of mercury supply, use, and trade in the United States. (I’ve written about programmatic changes to TSCA by the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” here, here, and here.) 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. EPA issued its first inventory report in April 2017. The initial inventory was based on readily available information, but in order to gather more complete information for subsequent inventories EPA issued reporting rules on June 27, 2018 (finalizing proposed rules published on October 26, 2017). (I wrote about the initial inventory and proposed rules here).

How Does TSCA Address Mercury Transactions?

Beginning in 2013, the Mercury Export Ban Act of 2008 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 also assign 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 Reporting Requirements is EPA Establishing?

EPA’s new rules 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 mercury compounds (the Rule provides a non-exclusive list of 69 compounds, by name and Chemical Abstracts Service (CAS) number). However, reporting does not apply unless the mercury or mercury-added products are not handled for “the purpose of obtaining a commercial advantage” (EPA does not explain this distinction clearly).

  • General reporting requirements

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 exceed 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 importers 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.).

Persons who report sales of mercury-added products to the Interstate Mercury Education and Reduction Clearinghouse (IMERC) – i.e., make sales in a state with reporting requirements -- 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.).

Persons who “otherwise intentionally use mercury in a manufacturing process” must report:

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

  • Amount of mercury stored (lbs.).

  • Specific and contextual reporting requirements

In addition, manufacturers and importers of mercury and mercury containing products must also report each of the specific mercury compounds identified in the rules, if present. Persons who “otherwise intentionally use mercury in a manufacturing process” must also report each activity involved (e.g., chlorine production), and the specific use (e.g., in a catalyst).

Reports must also provide “contextual information” consisting of county(ies) of origin for imports and destination for exports, and the North American Industry Classification System (NAICS) codes for mercury distributed in commerce.

  • How to report and keep records

Reports are due every 3 years, beginning with a report due July 1, 2019 covering calendar year 2018. Reports are submitted electronically to EPA’s Central Data Exchange (CDX), using the Mercury Electronic Reporting (MER) application EPA provides for this purpose. EPA will use reported data in its annual inventory issued two years later (e.g., 2018 data in the 2020 inventory report).

Reporting persons must keep records for at least 3 years after the reporting year they cover.

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 can be used to comply with EPA’s rules?

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:

photo credit: La Belle Lumière  via photopin (license)


Tags: Environmental risks, Environmental, Hazcom, tsca