Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C. law firm providing chemical and chemical product stakeholders unparalleled experience, judgment, and excellence in matters relating to TSCA, and other global chemical management programs.

By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) announced on February 22, 2022, the release of the updated Mercury Electronic Reporting (MER) application and compliance guide for calendar year 2021 data reporting. According to EPA, the updates make it easier to report information about the supply, use, and trade of mercury. The mercury rule applies to any person who manufactures (including imports) mercury or mercury-added products (including pre-assembled products that contain mercury-added components) 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). This information is required to be submitted every three years using the online MER application, accessed through EPA’s Central Data Exchange (CDX).
 
EPA states that it updated the mercury inventory reporting rule compliance guide to reflect the new requirement to report pre-assembled products that contain mercury-added components, such as a watch with a mercury-added battery. According to EPA, the guide explains the requirements for manufacturers and importers to report information about the supply, use, and trade of mercury to EPA; provides an overview of the legal requirements; and describes how EPA intends to use the information it collects. Diagrams and examples are provided to help companies determine whether they must report information about mercury to EPA.
 
EPA updated the MER application to include a drop-down year list to allow users to report for previous reporting years and to make the system easier for EPA to maintain. According to EPA, the updated resources will help it carry out the statutory requirements to identify any manufacturing processes or products that intentionally add mercury and recommend actions to achieve further reductions in mercury use in the United States. This will further assist the United States in its implementation of the Minamata Convention on Mercury, a global treaty to protect human health and the environment from the adverse effects of mercury. The deadline to report 2021 data is July 1, 2022. More information on the mercury inventory reporting rule is available in our June 25, 2018, memorandum.


 

By Lynn L. Bergeson and Carla N. Hutton
 
On November 8, 2021, the U.S. Environmental Protection Agency (EPA) published a final rule revising the regulations associated with persons who must report data to the mercury inventory established under the Toxic Substances Control Act (TSCA). 86 Fed. Reg. 61708. The revisions implement an order issued by the U.S. Court of Appeals for the Second Circuit on June 5, 2020, that vacated the exemption at 40 C.F.R. Section 713.7(b)(2) for persons who import pre-assembled products that contain a mercury-added component. As a result, such persons are now required to report pursuant to 40 C.F.R. Section 713.7(b). EPA states that the rule is effectuating the vacatur ordered by the Second Circuit by making necessary amendments to the corresponding text in 40 C.F.R. Section 713.7(b). The final rule will be effective on December 8, 2021. EPA states in its November 2, 2021, press release that the final rule “offers impacted communities adequate notice of the amended reporting requirements, as the deadline for reporting 2021 data is July 1, 2022.” EPA will update the mercury inventory reporting rule compliance guide and other supporting materials to reflect these new reporting requirements.
 
As reported in our June 25, 2018, memorandum, “EPA Publishes Final Reporting Requirements for TSCA Mercury Inventory,” the mercury rule and its reporting requirements apply 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).


 

By Lynn L. Bergeson and Carla N. Hutton
 
On March 30, 2020, the U.S. Environmental Protection Agency (EPA) published the 2020 Mercury Inventory Report on the supply, use, and trade of mercury in the United States.  The report presents aggregated data submitted on imported mercury, mercury manufactured in the United States, imported mercury-added products, mercury-added products made in the United States, and mercury used in manufacturing processes.  The inventory report also provides a broad view of U.S. mercury stored, sold, and exported, as well as industry sectors and countries involved in the supply, use, and trade of mercury.  According to EPA, highlights of the report include:

  • No indication of imports or exports of elemental mercury into or out of the United States during the reporting year;
     
  • Continuation of the overall steady decline in the use of mercury in products, indicative of the growing presence and use of effective alternatives;
     
  • A decrease in the amount of mercury used in switches and relays manufactured in or imported into the United States -- data submitted also fill a significant information gap;
     
  • Only a single mercury-based manufacturing process identified as ongoing in the United States; and
     
  • Information relevant for U.S. implementation of the Minamata Convention on Mercury.

EPA notes that the 2020 Mercury Inventory Report is the first inventory published under the 2018 rule requiring reporting from persons who manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process.  According to EPA, this means that the data presented in the 2020 report come directly from the companies that are using, manufacturing, or importing mercury, providing EPA and the public with more reliable and complete information on the supply, use, and trade of mercury in the United States.  EPA states that the initial 2017 inventory, on the other hand, was limited to publicly available data.  In addition, the 2020 report incorporates data from contextual reporting requirements, resulting “in more extensive information on the industries that purchase mercury-added products, countries of origin and destination for imports and exports, and the specific ways that mercury is used in certain manufacturing processes.”  More information will be available in a forthcoming memorandum that will be posted on our website.


 

By Lynn L. Bergeson and Kathleen M. Roberts
 
In the March 27, 2019, Federal Register, the U.S. Environmental Protection Agency (EPA) issued its final regulatory rulemaking that prohibits the manufacture (including import), processing, and distribution of methylene chloride for consumer paint and coating removal. 84 Fed. Reg. 11420.  See Bergeson & Campbell, P.C.’s memorandum, “EPA Bans Consumer Sales of Methylene Chloride Paint Removers, Seeks Comment on Program for Commercial Uses.”
 
Starting on August 26, 2019, which is 90 days after the effective date of the final rule, a company that manufactures, processes, or distributes in commerce methylene chloride is required to provide notification to downstream users of the consumer use paint remover restrictions via Safety Data Sheets (SDS).  We write to emphasize that this notification requirement applies to all manufacturers, processors, or distributors of methylene chloride and is not limited only to those companies engaged with paint remover products.  The EPA rulemaking provides the following specific text that must be included in the SDS:

  • SDS Section 1.(c):  “This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.”
     
  • SDS Section 15:  “This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.”

More information is available in our July 22, 2019, memorandum, “Communication and Recordkeeping Requirements Related to EPA Ban on Consumer Use Paint Removers Containing Methylene Chloride Go in Effect on August 26, 2019.”


 

By Lynn L. Bergeson and Margaret R. Graham, M.S.

On April 30, 2019, the U.S. Environmental Protection Agency (EPA) announced it would be hosting two webinars for companies, organizations, and individuals required to report under the Mercury Inventory Reporting Rule of the Toxic Substances Control Act (TSCA).  The final 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).

The first webinar, Mercury Inventory Reporting Rule, will provide background on reporting requirements under the final rule.  It will take place on May 21, 2019, at 2:00 p.m. (EDT).  The 2018 reporting year is from January 1, 2018, to December 31, 2018, and the submission deadline for the 2018 reporting year is coming up on July 1, 2019.  Reporters are required to submit their information to EPA using the Mercury Electronic Reporting (MER) application for the first time on July 1, 2019, and then every three years thereafter.  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.  Following EPA’s presentation, webinar participants will have an opportunity to ask questions on reporting requirements under the final rule.  Registration is available online.

The second webinar, Mercury Electronic Reporting (MER) Application, will demonstrate how to use the online MER application through EPA’s Central Data Exchange (CDX), which is organized as a fill-in-the-blanks form with drop-down menus and lists of check-box options.  It will take place on May 23, 2019, at 2:00 p.m. (EDT).  Registration is available online.

More information on the Mercury Inventory Reporting Rule is available in our June 25, 2018, memorandum “EPA Publishes Final Reporting Requirements for TSCA Mercury Inventory,” and in our March 19, 2019, memorandum “EPA Releases New Tools to Help Companies Meet July 1 Mercury Reporting Requirements.”


 

By Lynn L. Bergeson and Carla N. Hutton

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.  More information is available in our memorandum.


 

By Lynn L. Bergeson and Margaret R. Graham, M.S.

On March 15, 2019, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler signed a final rule prohibiting the manufacture (including import), processing, and distribution in commerce of methylene chloride for consumer paint and coating removal, including distribution to and by retailers; requiring manufacturers (including importers), processors, and distributors, except for retailers, of methylene chloride for any use to provide downstream notification of these prohibitions; and requiring recordkeeping.  The rule states that EPA has determined that “the use of methylene chloride in consumer paint and coating removal presents an unreasonable risk of injury to health due to acute human lethality.”  This final rule does not prohibit the use of methylene chloride in commercial paint and coating removal, however.  EPA is instead soliciting comment, through an advance notice of proposed rulemaking (ANPRM) also signed by Administrator Wheeler on March 15, 2019, on questions related to a potential training, certification, and limited access program as an option for risk management for all of the commercial uses of methylene chloride in paint and coating removal.  More information will be available on these issuances in a forthcoming memorandum to be available on our Regulatory Developments webpage.


 

By Lynn L. Bergeson, Carla N. Hutton, and Margaret R. Graham

On February 19, 2019, the U.S. Environmental Protection Agency (EPA) announced that it was releasing an update to the Toxic Substances Control Act (TSCA) Inventory listing the chemicals that are actively being manufactured, processed and imported in the United States, which is required under amended TSCA.  Some of the highlights from EPA’s announcement are:

  • A key result of the update is that less than half of the total number of chemicals on the current TSCA Inventory (47 percent or 40,655 of the 86,228 chemicals) are currently in commerce; EPA states that this information will help it focus risk evaluation efforts on chemicals that are still on the market.
  • As recently as 2018, the TSCA Inventory showed over 86,000 chemicals available for commercial production and use in the U.S.  Until this update, EPA states that it was not known which of these chemicals on the TSCA Inventory were actually in commerce.
  • More than 80 percent (32,898) of the chemicals in commerce have identities that are not Confidential Business Information (CBI), increasing public access to additional information about them.  
  • For the less than 20 percent of the chemicals in commerce that have confidential identities, EPA states that it is developing a rule outlining how it will review and substantiate all CBI claims seeking to protect the specific chemical identities of substances on the confidential portion of the TSCA Inventory. 
  • From August 11, 2017, through October 5, 2018, chemical manufacturers and processors provided information on which chemicals were manufactured, imported or processed in the U.S. over the past ten years, the period ending June 21, 2016.  EPA received more than 90,000 responses, a significant reporting effort by manufacturers, importers and processors.

Look for our memorandum on this important development tomorrow; it will be posted to our Regulatory Developments webpage.  

On March 13, 2019, EPA will host a webinar to assist manufacturers (including importers) and processors with future reporting requirements.  Under the final TSCA Inventory notification (active-inactive) rule, a substance is not designated as an “inactive substance” until 90 days after EPA publishes the initial version of the Inventory with all listings identified as active or inactive.  EPA states that manufacturers and processors should be aware that if there is a substance that is listed as “inactive” that is currently being manufactured or processed, they have 90 days to file a Notice of Activity (NOA) Form B so that they can continue their current activity.  Manufacturers and processors that intend to manufacture or process an “inactive” substance in the future must submit an NOA Form B before they start their activity.

The webinar is scheduled for 1:00 p.m. - 4:00 p.m. (EDT) on Wednesday, March 13, 2019.  The webinar will include an overview of filing a NOA Form B, a demonstration of the electronic reporting application, and time for questions and answers.  Registration for the webinar is not required.

More information about the TSCA Inventory update and the webinar is available on EPA’s TSCA Chemical Substance Inventory webpage.


 

By Lynn L. Bergeson and Margaret R. Graham

On January 16, 2019, a group of global companies from the plastics and consumer goods value chain announced the launch of the Alliance to End Plastic Waste (AEPW), which will advance solutions to eliminate plastic waste in the environment, especially in the ocean.  AEPW membership, currently at 30 member companies, represents global companies located throughout North and South America, Europe, Asia, Southeast Asia, Africa, and the Middle East.  APEW has committed over $1.0 billion with the goal of investing $1.5 billion over the next five years.  The announcement of the launch states that APEW will “develop and bring to scale solutions that will minimize and manage plastic waste and promote solutions for used plastics by helping to enable a circular economy.”  AEPW is a not-for-profit organization that includes companies that make, use, sell, process, collect, and recycle plastics including chemical and plastic manufacturers, consumer goods companies, retailers, converters, and waste management companies.  The following companies are the founding members:  BASF, Berry Global, Braskem, Chevron Phillips Chemical Company LLC, Clariant, Covestro, Dow, DSM, ExxonMobil, Formosa Plastics Corporation, U.S.A., Henkel, LyondellBasell, Mitsubishi Chemical Holdings, Mitsui Chemicals, NOVA Chemicals, OxyChem, PolyOne, Procter & Gamble, Reliance Industries, SABIC, Sasol, SUEZ, Shell, SCG Chemicals, Sumitomo Chemical, Total, Veolia, and Versalis (Eni).

As part of its roll-out, APEW also announced an initial set of projects and collaborations that reflect a range of solutions to help end plastic waste:

  1. Partnering with cities to design integrated waste management systems in large urban areas where infrastructure is lacking.  This work will include engaging local governments and stakeholders and generating economically sustainable and replicable models that can be applied across multiple cities and regions.
  2. Funding The Incubator Network by Circulate Capital to develop and promote technologies, business models, and entrepreneurs that prevent ocean plastic waste and improve waste management and recycling, with the intention of creating a pipeline of projects for investment, with an initial focus on Southeast Asia.
  3. Developing an open source, science-based global information project to support waste management projects globally with reliable data collection, metrics, standards, and methodologies to help governments, companies, and investors focus on and accelerate actions to stop plastic waste from entering the environment.
  4. Creating a capacity building collaboration with intergovernmental organizations such as the United Nations to conduct joint workshops and trainings for government officials and community-based leaders to help them identify and pursue the most effective and locally-relevant solutions in the highest priority areas.
  5. Supporting Renew Oceans to aid localized investment and engagement.  The program is designed to capture plastic waste before it reaches the ocean from the ten major rivers shown to carry the vast majority of land-based waste to the ocean.

The global internet broadcast that aired on January 16, 2019, is available at www.endplasticwaste.org/live.  More information is available on APEW’s website.


 

By Lynn L. Bergeson, Charles M. Auer, and Carla N. Hutton

On June 22, 2018, the U.S. Environmental Protection Agency published a prepublication version of the final rule regarding reporting requirements for applicable persons to provide information to assist in the preparation of an “inventory of mercury supply, use, and trade in the United States,” where “mercury” is defined as “elemental mercury” and “a mercury compound” (mercury).  The final 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.  The final rule will be effective 60 days after publication in the Federal Register, which is scheduled for June 27, 2018

The reporting requirements include activities that are established TSCA terms, including manufacture, import, distribution in commerce, storage, and export.  EPA notes that the reporting requirements also apply to the otherwise intentional use of mercury in a manufacturing process.  Persons who manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, are required to report amounts of mercury in pounds (lbs.) used in such activities during a designated reporting year.  Reporters must also identify specific mercury compounds, mercury-added products, manufacturing processes, and how mercury is used in manufacturing processes, as applicable, from preselected lists.  For certain activities, reporters must provide additional, contextual data.

The final reporting requirements do not apply to:  (1) persons who do not first manufacture, import, or otherwise intentionally use mercury; (2) persons who only generate, handle, or manage mercury-containing waste; (3) persons who only manufacture mercury as an impurity; and (4) persons engaged in activities involving mercury not with the purpose of obtaining an immediate or eventual commercial advantage.  Within the category of persons who must report, there are certain persons who are not required to provide specific data elements.  To avoid reporting that is unnecessary or duplicative, the final rule includes certain exemptions for persons who already report for mercury and mercury-added products to the TSCA Section 8(a) Chemical Data Reporting (CDR) rule and the Interstate Mercury Education and Reduction Clearinghouse (IMERC) Mercury-Added Products Database, respectively.

More detail is provided in our June 25, 2018, memorandum regarding the provisions of the final rule, including EPA’s rationale for fulfilling specific statutory provisions and terms.  While the final rule includes summaries of public comments received and EPA’s responses and determinations, EPA notes that some of these issues are discussed in greater detail in its Response to Comments.  EPA states that its Response to Comments will be available in Docket EPA-HQ-OPPT-2017-0421, although it is not there at this time.


 
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