EPA Proposes new reporting requirements for Mercury
The Environmental Protection Agency (EPA) has recently issued a proposed rule regarding mercury (both as an element and as part of a compound) where it is manufactured, imported, or intentionally used in either a product or in the manufacturing process. The rule – which was published in the Federal Register on October 26, 2017 – has a number of general and specific requirements for which companies and individuals who manufacture, import or use mercury must report on.
The Toxic Substances Control Act (TSCA)
Under the Toxic Substances Control Act (TSCA), the EPA is required to publish the mercury inventory – which includes the “supply, use, and trade” of mercury in the United States – every three years. Previously, this was done using publicly available information, but data gaps apparent with this method are now driving the EPA to seek reporting from industry. The EPA intends to use this information to meet its obligations under TSCA, whilst further reducing mercury use in the U.S.
Section 8(b)(10)(D) of TSCA requires the EPA to implement a rule within two years of the enactment of the new TSCA (i.e. by June 22, 2018) that will require “any person who manufactures [including import] mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process” to make periodic reports to the EPA to assist in the preparation of the mercury inventory. This proposed rule sets the EPA on its way to delivering on this mandate.
What are companies and individuals required to report on?
Under the proposed rule, companies who manufacture, import or use mercury will be required to provide information such as their annual volume of use, along with the identification of compounds, products and processes (and how mercury is used in these processes). In certain circumstances, reporting on country of origin or destination for imports and exports would also be required.
There are a number of proposed exemptions, such as for imported products containing a mercury-added component (e.g. a mercury-added battery). The proposed rule is also considered not to be applicable in certain specific situations, such as an individual importing a mercury-containing thermometer for personal use, and those handling mercury-containing waste would also be exempt from reporting obligations unless they recover the mercury for further use.
Furthermore, to avoid duplicate reporting, the proposed rule includes exemptions for those already reporting similar information under TSCA Chemical Data Reporting or the Interstate Mercury Education and Reduction Clearinghouse (IMERC).
The full list of requirements and exemptions proposed by the EPA can be found on page 49583 of the Federal Register.
Which industries are likely to be affected?
The EPA has identified – by name and by NAICS (North American Industrial Classification System) – the industries likely to be affected by the proposed rule. These include:
- Synthetic dye and pigment manufacturing (325130)
- Plastics material and resin manufacturing (325211)
- Pesticide and other agricultural chemical manufacturing (325320)
- Paint and coating manufacturing (325510)
- Adhesive manufacturing (325520)
- Custom compounding of purchased resins (325991)
- And many more
The full list of affected industries proposed by the EPA can be found here.
Which mercury compounds are to be included in the reporting?
As the proposed rule applies to mercury-containing compounds as well as just mercury on its own, the EPA has also identified a number of mercury compounds to be included in the reporting. These include:
- Nitric acid, mercury(2+) salt (2:1).
- Mercury, hydroxyphenyl-.
- Mercury chloride (Hg2Cl2).
- Nitric acid, mercury(1+) salt (1:1).
- Mercury cyanide oxide (Hg2(CN)2O).
- Mercury sulfide (HgS).
- Cadmium mercury sulfide.
- Mercury oxide (Hg2O).
- Mercury selenide (HgSe).
- Mercury oxide (HgO).
- Mercury chloride (HgCl2).
- Mercury chloride (HgCl).
- Mercury fluoride (HgF2).
- Mercury bromide (HgBr2).
- And many more.
Are the EPA taking comments on the Proposed Rule?
The EPA has requested public comments on several issues, including:
- The proposed limited data collection requirements, such as the identification of countries that manufacture, import, or export mercury-added products (i.e. countries of origin and destination), as well as the identification of purchasing or receiving industry sectors via NAICS codes, to inform activities under the Minamata Convention on Mercury
- Whether to require one-time reporting for exports of the mercury compounds prohibited from export under TSCA Section 12(c)(7)
- Its proposal to apply the reporting requirements to any person who manufactures or imports mercury, mercury-added products or otherwise intentionally uses mercury in a manufacturing process regardless of the amount of mercury at issue
- Its proposal that because of the similarities in the intentional addition of mercury to manufacture a product and otherwise intentional use of mercury in a manufacturing process, all quantities of mercury used in both activities should be reported without a reporting threshold
- Whether reporting should be broken down into product groups, such as batteries, dental amalgam, lighting, switches and measuring instruments (e.g. barometers)
- Its proposal to require mandatory electronic reporting