May 26, 2020

May 26, 2020

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EPA Extends Comment Period for Proposed Mercury Reporting Rule to January 11, 2018

On December 19, 2017, the U.S. Environmental Protection Agency (EPA) extended the comment period on its proposal to require triennial reporting on the use of elemental mercury and mercury compounds. The proposed rule would require reporting by companies that manufacture or import mercury, or intentionally use these substances in a manufacturing process. In addition, importers and manufacturers of mercury-added products, including appliances, electronics, lamps and similar products, would be required to report to EPA by July 1, 2019 for activities that occur in calendar year 2018. 

The proposed rule would implement EPA's statutory obligation under the Lautenberg Act amendments to the Toxic Substances Control Act (TSCA) to develop a triennial "inventory" of mercury supply, use, and trade.[1] In addition, the information collected under this proposal would be used to meet U.S. reporting obligations under the Minamata Convention on Mercury. Companies that intentionally use elemental mercury or a mercury compound in a manufacturing process would be required to report the:

  • Amount of mercury intentionally used in a manufacturing process;

  • Amount of mercury stored;

  • Amount of mercury in exported final products;

  • Amount of mercury in final products distributed in commerce;

  • Country of destination for exported final products; and

  • NAICS code(s) for the recipient(s) of final products containing elemental mercury or mercury compounds distributed in commerce.

Manufacturers and importers of mercury-added products would be required to report the:

  • Amount of mercury in manufactured, imported, and exported products, and in products distributed in commerce;

  • Country of origin for imported products;

  • Country of destination for exported products; and

  • NAICS code for products distributed in commerce.

As proposed, the rule attempts to avoid duplicative reporting by creating partial reporting exemptions. For example, information reported by a company under the TSCA Chemical Data Reporting Rule is exempt from repeat reporting under this rule. In addition, companies reporting pursuant to state mercury reporting laws, such as those administered by the Interstate Mercury Education and Reduction Clearinghouse (IMERC) [2] would not be required to report on the amount of mercury they distributed in commerce, as that information is already reported to the states. Such companies still would be required to report information on the product, including the product type, the amount of mercury in products manufactured, imported, or exported, and the country of origin or destination for imported and exported products. The proposed reporting requirements also exclude a mercury-added product from reporting where the mercury is present solely within a previously manufactured component of the product, as EPA's intent is that the manufacturer of the component will separately report for that component as a mercury-added product.

Notably, the rule does not define the terms "mercury-added product" or "component." By contrast, the IMERC states generally define a "mercury-added product" as a product that contains mercury, a mercury compound, or a component containing mercury when the mercury or mercury compound is intentionally added for any reason. [3] Given that the rule would partially exempt companies reporting to the IMERC states, it appears that EPA intends the scope of proposed reporting requirements for mercury-added products to be the same as the IMERC states. However, EPA's exemption of components would seem to be inconsistent with the states' approach. Moreover, as the rule would not change any reporting requirements at the state level, it hardly appears to reduce duplicative reporting. The comment period will now end on January 11, 2018, rather than December 26, 2017, providing potentially affected companies a further opportunity to comment on the proposal after the holidays.

[1] Mercury; Reporting Requirements for the TSCA Mercury Inventory, 82 Fed. Reg. 49,564 (Oct. 26, 2017).

[2] The Northeast Waste Management Officials' Association (NEWMOA) established the Interstate Mercury Education and Reduction Clearinghouse (see, which facilitates implementation of state statutes to reduce or phase-out the use of mercury in a broad array of products and product components. These statutes generally require manufacturers to notify state agencies prior to selling mercury-added products and components and mandate product labeling. IMERC state members include Connecticut, Louisiana, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, Vermont, and Washington.

[3] See, e.g., Northeast Waste Management Officials' Association, Mercury Education and Reduction Model Act, available at:

("Mercury-added product means: a product, commodity, chemical, or a product with a component that contains mercury or a mercury compound intentionally added to the product, commodity, chemical, or component in order to provide a specific characteristic, appearance, or quality or to perform a specific function or for any other reason. These products include formulated mercury-added products and fabricated mercury-added products.").

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About this Author

Jean-Cyril Walker, Keller Heckman, Environmental Compliance Lawyer, Renewable Fuel Standards Attorney

Jean-Cyril Walker joined Keller and Heckman in 2000. He advises clients on a wide range of environmental matters, including compliance with U.S. requirements governing the safe management and disposal of chemical and hazardous substances. Mr. Walker counsels fuel industry clients on federal and state requirements governing the development and distribution of fuels and fuel additives, including the renewable fuel standards (RFS and RFS2), and matters involving renewable fuel identification number (RIN) transactions. Mr. Walker regularly advises industry and trade...

Gregory A. Clark, Keller Heckman, EPA Contractor Lawyer, Environmental matters Attorney

Gregory Clark joined Keller and Heckman in 2010. He practices in the area of environmental law.

While in law school, Mr. Clark served as an articles editor for the Virginia Journal of Law and Technology. Prior to law school, Mr. Clark worked as an EPA contractor, primarily for the Water Security Division in the Office of Groundwater and Drinking Water. In this arena, Mr. Clark worked on validation of molecular biology and microbiology methods and on emergency preparedness. He led development of what is now EPA's Water Laboratory Alliance Response Plan, which was developed to aid laboratories in responding collaboratively on a regional scale to natural, intentional, and unintentional water contamination incidents.