On March 18, 2019, the U.S. Environmental Protection Agency (EPA) released new tools intended to help companies, organizations, and individuals fulfill their reporting requirements under the mercury reporting requirements rule. Those required to report under the mercury rule can now do so online through the Mercury Electronic Reporting (MER) application accessed through EPA’s Central Data Exchange (CDX). EPA states that it designed this reporting tool “to be user-friendly, with drop-down menus and lists of check-box options, to help make reporting easy and efficient.” As reported in our June 25, 2018, memorandum, “EPA Publishes Final Reporting Requirements for TSCA Mercury Inventory,” the mercury rule applies to any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process (including processes traditionally not subject to the Toxic Substances Control Act (TSCA), such as for the manufacture of pharmaceuticals and pesticides). EPA will use data from the 2018 reporting year for the 2020 mercury inventory. The 2018 reporting year is from January 1, 2018, to December 31, 2018, and the submission deadline for the 2018 reporting year is July 1, 2019. Based on the information collected, EPA will identify any manufacturing processes or products that intentionally add mercury and recommend actions to achieve further reductions in mercury use.

Reporting Requirements

As reported in more detail in our June 25, 2018, memorandum, EPA is requiring reporting of the following activities when intentionally undertaken with the purpose of obtaining an immediate or eventual commercial advantage:

• Import of mercury;
   
• Manufacture (other than import) of mercury;
   
• Import of a mercury-added product;
   
• Manufacture (other than import) of a mercury added product; or
   
• Intentional use of mercury in a manufacturing process.
   

In addition, EPA states, the following activities are part of supply, use, and trade of mercury:

• Distribution in commerce, including domestic sale or transfer, of mercury;
   
• Distribution in commerce, including domestic sale or transfer, of mercury-added products or products that result from the intentional use of mercury in a manufacturing process;
   
• Storage of mercury;
   
• Export of a mercury compound (unless specifically prohibited); or
   
• Export of mercury-added products or products that result from the intentional use of mercury in a manufacturing process.
   

Persons Who Manufacture (Including Import) Mercury

Persons who manufacture (including import) in excess of 2,500 pounds (lbs.) of elemental mercury or in excess of 25,000 lbs. for mercury compounds for a specific reporting year are not required to report amounts manufactured (including imported) or exported that are already reported per the Chemical Data Reporting (CDR) rule. As described in the table below, such persons are required to provide quantitative data on storage and distribution in commerce, however, as well as qualitative and contextual information related to all applicable data elements under the proposed rule. EPA states that to decrease reporting burdens, it will provide preselected lists of mercury compounds to streamline reporting requirements as much as possible.

Persons Who Manufacture or Import Mercury-Added Products

The final rule discusses reporting requirements for persons who report sales of mercury-added products to the Interstate Mercury Education and Reduction Clearinghouse (IMERC) and persons who manufacture or import mercury-added products. The combined general, specific, and contextual reporting requirements of the final rule “are designed not only to provide information that [is] expected to identify mercury-added products that are components within assembled products, but also to avoid unnecessary, duplicative, and burdensome reporting as much as feasible.” EPA notes that persons who report to IMERC identify the amount of mercury sold in mercury-added products that may be manufactured, distributed, or imported. EPA states that it considers the amount of mercury reported to IMERC as sold to be comparable to the amount of mercury to be reported under the rule as distributed in commerce. As such, EPA is not requiring persons who report to IMERC to report amounts of mercury distributed in commerce in mercury-added products. Those persons must report quantitative and qualitative information for other applicable data elements (e.g., manufacture, import, and export of mercury-added products), however. As described in the table below, such persons are also required to report contextual information applicable to amounts, if any, of mercury in mercury-added products manufactured, imported, distributed in commerce, or exported. According to EPA, in further efforts to decrease reporting burdens, it will provide pre-selected lists of mercury-added product categories to streamline reporting requirements as much as possible.

Persons Who Otherwise Intentionally Use Mercury in a Manufacturing Process

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) includes persons who intentionally use mercury in a manufacturing process among those who must report. EPA states that it believes that persons who otherwise intentionally use mercury in a manufacturing process may currently report to existing data collection programs in the U.S., “but because the reporting requirements for the mercury inventory differ from those programs, EPA does not view the reporting requirements to be duplicative or unnecessary.” EPA intends the general, specific, and contextual reporting requirements in the following table to provide a complete picture of uses for which little information is currently available.

Persons Not Required to Report

The following categories are exempt from reporting to EPA:

• Persons who do not first manufacture, import, or otherwise intentionally use mercury;
   
• Persons who are engaged only in the generation, handling, or management of mercury-containing waste, unless mercury is recovered to place in commerce;
   
• Persons who manufacture mercury or import mercury only as an impurity;
   
• Persons engaged in activities involving mercury without the purpose of obtaining an immediate or eventual commercial advantage; or
   
• Manufacture or import of a product that contains a component that is a mercury-added product.
   

Resources

EPA has posted the following resources to help companies, including small businesses, determine whether they are subject to EPA’s mercury inventory reporting requirements:

• Frequent Questions about EPA’s Mercury Inventory Reporting Rule;

• Compliance Guide: Reporting Requirements for the Mercury Inventory of the Toxic Substances Control Act;

• CDX Mercury Electronic Reporting User Guide -- Primary Support;

• CDX Mercury Electronic Reporting User Guide -- Primary Authorized Official; and

• CDX Mercury Electronic Reporting User Guide -- Primary Agent/Consultant.

Commentary

As we have noted, the mercury rule applies to any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process, including processes traditionally not subject to TSCA, such as for the manufacture of pharmaceuticals and pesticides.