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EPA Issues Proposed Rule on Reporting Requirements for Mercury Inventory Under New TSCA
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By Lynn L. Bergeson and Margaret R. Graham

On October 26, 2017, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a proposed rule on reporting requirements for the Toxic Substances Control Act (TSCA) mercury inventory.  82 Fed. Reg. 49564.  Under TSCA Section 8(b)(10)(B), the mercury inventory, which includes mercury “supply, use, and trade” in the United States, is required to be published every three years.  Information on the 2017 mercury inventory report is available in our blog item "EPA Releases Inventory Report of Mercury Supply, Use, and Trade in the U.S."

Through this proposed rule, EPA is on its way to delivering timely on its mandate under TSCA Section 8(b)(10)(D) to promulgate a rule within two years of the enactment of new TSCA (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 EPA to assist in the preparation of the mercury inventory. 

TSCA Section 8(b)(10)(C) further directs to “identify any manufacturing processes or products that intentionally add mercury; and … recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use.”  The proposed rule, however, states that “[a]t this time, EPA is not making such identifications or recommendations.” 

The proposed rule requests comments on several changes, including:

  • On 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 North American Industrial Classification System (NAICS) codes, to inform activities under the Minamata Convention on Mercury;
  • On whether to require one-time reporting for exports of the mercury compounds prohibited from export under TSCA Section 12(c)(7);
  • On its proposal to apply the proposed reporting requirements to any person who manufactures (including imports) mercury, mercury-added products or otherwise intentionally uses mercury in a manufacturing process regardless of the amount of mercury at issue;
  • On 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;
  • On what kinds of information would be particularly important to address for small entities if EPA were to develop compliance guides tailored to small entities that will be required to comply with the reporting requirements;
  • On whether the proposed reporting requirements should apply to persons who do not manufacture or import mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, but engage in the supply, use, and trade of mercury in the United States; and
  • On its proposal to require mandatory electronic reporting.

EPA also requests comments on the proposed timelines and reporting deadlines; and on the proposed interpretations of activities to be considered as part of supply, use, and trade of mercury in the United States -- as described below.

For those who will need to report, EPA proposes the following reporting periods and deadlines:

  • The 2020 reporting year will be from January 1 to December 31, 2018; subsequent recurring reporting years will be from January 1 to December 31 at three-year intervals beginning in 2021;
  • All information reported for an applicable reporting year must be submitted on or before the first day of July following the reporting year.  The 2020 submission deadline is July 1, 2019; subsequent recurring submission deadlines are from July 1, in three-year intervals, beginning in 2022.

EPA’s proposed interpretations of activities to be considered as part of the supply, use, and trade of mercury in the United States are as follows:

  • Import of mercury or a mercury added product with the purpose of obtaining an immediate or eventual commercial advantage for the importer, except where such mercury is generated as a byproduct not used for commercial purposes or an impurity.
  • Manufacture (other than import) of mercury or a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer, except where such mercury is generated as a byproduct not used for commercial purposes or an impurity. In this context, EPA considers manufacture to be the intentional production of mercury, a mercury compound, or a mercury-added product.
  • Otherwise intentional use of mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, with the purpose of obtaining an immediate or eventual commercial advantage for the user, except where such mercury is generated as a byproduct not used for commercial purposes.
  • Distribution in commerce, including domestic sale or transfer, of mercury or a mercury-added product.
  • Storage of mercury after manufacture (including import).
  • Export of mercury or a mercury-added product, including the determining and controlling the sending of mercury (unless specifically prohibited) or a mercury-added product to a destination out of the customs territory of the United States.

Comments on the proposed rule are due by December 26, 2017.