## American° 

# Chemistry Council

September 8, 2015

Wendy Cleland-Hamnett,Director (7401M) Office ofPollution Prevention and Toxics Office ofChemical Safety and Pollution Prevention Environmental Protection Agency 1200 Pennsylvania Avenue,N.W. Washington,DC 20460 Re: Comments of the American Chemistry Council on Section 21 Petition Regarding Mercury,Mercury Compounds,and Products Containing Mercury Dear Ms.Cleland-Hamnett: Attached please find the comments ofthe American Chemistry Council on the petition submitted on July 10, 2015 by the Natural Resources Defense Council on behalfofseveral organizations asking EPA to conduct a rulemaking under section 8(a)ofthe Toxic Substances Control Act. If you have any questions or comments,please contact me at (202)249-6132,or at judah~rero(a~americanchemistry com. Sincerely, ~.U

- ) Judah Prero Assistant General Counsel Attachment

americanchemistry.Com~ 700 Second St.,NE ~ Washington,DC 20002 ~ (202)249.7000 ~~

## American" 

# Chemistry Council

Comments of the American Chemistry Council on the Section 21 Petition Regarding Mercury,Mercury Compounds,and Mercury-Containing Products

September 8,2015

OfCounsel: Mark N.Duvall Beveridge &Diamond,P.C. 1350 I Street,N.W. Washington,DC 20005 (202)789-6090 mduvall(a~bdlaw.com Judah Prero Assistant General Counsel American Chemistry Council 700 Second Street,N.E. Washington,DC 20002 (202)249-6132 j udah~rerona,americanchemistrv.com

~~h americanchemistry.com~ 700 Second St.,NE ~ Washington,DC 20002 ~ (202)249.7000 ~'~,

### TABLE OF CONTENTS Page

EXECUTIVE SUMMARY .............................................................................................................1 DISCUSSION ..................................................................................................................................1 1. ACC Statement ofInterest.......................................................................................1 2. The Petition Fails to Meet the Criteria for EPA to Take Action Under TSCA ............................................................................................................2 3. The Requested Section 8(a)Rulemaking Is Unnecessary .......................................2 4. The Requested Section 8(a)Rulemaking Would Be Duplicative of CDR Rule Reporting Requirements.........................................................................4 5. Under Section 9,EPA Must Use Its Other Statutory Authorities to Collect Information on Mercury and Mercury Compounds or Leave Other Agencies to Do So Under Their Authorities..................................................5 CONCLUSION................................................................................................................................7

-i-EXECUTIVE SUMMARY

The American Chemistry Council (ACC)urges EPA to deny the citizens' petition entitled "Petition to Promulgate Reporting Rules for Mercury Manufacturing,Processing,and Importation Under Section 8(a)ofthe Toxic Substances Control Act"(the Petition). The Petition asks EPA to adopt a rule under section 8(a)ofthe Toxic Substances Control Act (TSCA) to require manufacturers and processors to report information on mercury,mercury compounds,and mercury-added products. The Petition fails to meet the requirement ofsection 21 that the petitioners demonstrate that the issuance ofa section 8(a)rule is "necessary to protection health or the environment against an unreasonable risk ofinjury to health or the environment." EPA already requires regular reporting ofdetailed information on mercury and mercury compounds under the Chemical Data Reporting (CDR)

Rule. The Petition is highly unusual in that it requests EPA to require reporting ofmercury produced as a byproduct ofmining other metals and natural gas production. EPA has rarely taken regulatory action on byproducts because other authorities are better able to address the special circumstances ofbyproducts. EPA should not use TSCA here either. Under section 9(b)ofTSCA,EPA should not use TSCA to address production ofmercury as a byproduct in light of its actions under the Resource Conservation and Recovery Act (RCRA) and other statutes on the same issue, and the actions ofother federal agencies under statutes that they administer. DISCUSSION 1. ACC Statement ofInterest ACC members apply the science ofchemistry to make innovative products and services that make people's lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care,common sense advocacy designed to address major public policy issues, and health and environmental research and product testing. The business ofchemistry is an $812 billion enterprise and a key element ofthe nation's economy. It is the nation's largest exporter, accounting for twelve percent ofall U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns ofACC members,and they have intensified their efforts, working closely with government agencies to improve security and to defend against any threat to the nation's critical infrastructure. Some ACC members manufacture or process mercury,mercury compounds,products containing mercury or mercury compounds,and thus could be affected were EPA to initiate rulemaking under TSCA in response to the Petition.

-1-2. The Petition Fails to Meet the Criteria for EPA to Take Action Under TSCA

Section 21(b)(3)mandates that EPA either agree to initiate actions requested in a petition or deny the petition within 90 days ofreceipt. During that time EPA may hold a public hearing,conduct an investigation, or complete a proceeding,per section 21(b)(2), but the time available is very limited. Accordingly, section 21 puts the burden ofproofon the petitioner to provide sufficient information to enable EPA to make a decision. (Note that under section 21(b)(4(B), "the petitioner" must demonstrate to a court that the requested actions met the applicable requirements.) As discussed below,the petitioners failed to carry their burden ofproofthat the requested actions are necessary and not duplicative, and otherwise meet the TSCA criteria for taking action. 3. The Requested Section 8(a)Rulemakin~ Is Unnecessary Under section 8(a)(2), EPA "shall not require under paragraph (1),any reporting which is unnecessary or duplicative." The requested reporting rule would be both unnecessary and duplicative. For these reasons, EPA should deny the Petition. The Petition requests EPA to use its section 8(a)authority to require manufacturers,processors, and importers ofmercury,mercury compounds,and products containing mercury or mercury compounds to report certain information needed for compliance with the Minamata Convention on Mercury (Convention). EPA should deny the Petition because it does not establish that such a reporting rule is necessary. EPA has already decided to seek the information needed for compliance with the Convention through voluntary means (at least until such means have been tried and found to be insufficient): It is our hope that information that is requested by the Agency from mercury manufacturers and importers,mercury processors, and others will be forthcoming without additional available regulatory steps being necessary. At this phase,the type ofinformation sought will be different for each product category,and the questions may change from one group ofstakeholders to another. As EPA considers what it believes the domestic landscape should be for the use ofmercury in products and, as appropriate, certain processes, considerations such as EPA Strategy to Address Mercury-Containing Products unreported or underreported use categories,replacement purposes, market forces, and voluntary initiatives shall be taken into account. Phase 1 also will include outreach, which will likely continue throughout the implementation ofthis strategy and be refined by the information received by the Agency. In addition,the initiation offuture phases may not necessarily be dependent on preceding phases. l

' EPA Strategy to Address Mercury-Containing Products (Sept. 2014)at 1-2, http://www.epa.~ov/mercury/pdfs/productsstrateg~.pdf(emphasis added).

-2-Accordingly, the Petition is at best premature,since EPA has not yet had an opportunity to

pursue voluntary means ofcollecting needed information. The Petition's request for a reporting rule applicable to importers as well as manufacturers is unnecessary, since TSCA § 3(7)defines "manufacture" to include "import into the customs territory ofthe United States." The Petition requests EPA to waive the general exemption for chemicals in articles in 40 C.F.R. § 704.5(a)on the basis that "EPA has previously recognized that the articles exemption is not appropriate for TSCA reporting rules relating to mercury," citing the significant new use rule (SNUR)for elemental mercury,40 C.F.R. § 721.10068. This request for a waiver ofthe article exemption cannot be supported by citation to the SNUR for elemental mercury. A SNUR under section 5(a)is very different from a reporting rule under section 8(a). While EPA has waived the article exemption for a limited number ofSNURs,including that for elemental mercury, it has never waived the article exemption for reporting rules under section 8(a). Obviously,EPA could do so (see the introductory language of § 704.5), but the fact that it has not chosen to do so in decades strongly indicates that collection ofinformation on chemicals in products is not necessary. Indeed, it is not clear that EPA can require reporting on articles under section 8(a). Unlike many other provisions ofTSCA,that provision does not refer to articles. In particular, the kinds of information listed in section 8(a)(2)that EPA may require to be reported does not include any reference to articles. The Petition also requests EPA to waive the general exemption for byproducts in 40 C.F.R. § 704.5(b), asserting that: The general reporting exemption for byproducts is inappropriate in this case because one ofthe principal sources ofmercury domestically and globally is byproduct mercury from mining other metals (such as gold)and natural gas production. Because byproduct mercury from gold production is particularly significant in this country,excluding byproduct-mercury production from reporting would impair data collection on mercurysupply sources and the ultimate disposition ofthe mercury.2 The Petition is virtually unique in asking EPA to require reporting on a byproduct3 ofmining operations,rather than a chemical that is intentionally manufactured. EPA has exempted persons who manufacture or process byproducts from most ofits TSCA regulations, including the following:

• Reporting requirements under section 8(a),40 C.F.R. § 704.5(b)(any byproduct) • Inventory requirements under section 8(b), 40 C.F.R. § 710.4(d)(2)(any byproduct that has no commercial purpose)

2 Petition at 8 (footnote omitted). 3 EPA defines "byproduct" to mean "a chemical substance produced without separate commercial intent during the manufacture or processing ofanother chemical substance or mixture." 40 C.F.R. §§ 7073,7103(d), 7123(a), 716.3, 7203(d), 761.3, 7913(c).

-3-• CDR Rule requirements under section 8(a), 40 C.F.R. § 711.10(c)(any byproduct that is

not used for commercial purposes or which is used for limited commercial purposes) • PAIR requirements under section 8(a),40 C.F.R. § 712.25)(d)(1)(any byproduct that is not used or sold) • PMN requirements under section 5(a),40 C.F.R. § 720.30(h)(2)(any byproduct that is not used for commercial purposes)and (g)(any byproduct that is used for limited commercial purposes) • SNUR requirements under section 5(a),40 C.F.R. § 721.45(e)(any byproduct that is used only for limited commercial purposes) EPA has authority to restrict byproduct manufacture and processing,and it has regulated manufacturers and processors ofbyproducts for some limited purposes,including PCBs under section 6(e); section 8(d)reporting; and some test rules (where byproduct manufacturers are typically classified in Tier 2 (not initially required to comply with the test rule). Nevertheless, for the most part EPA has chosen not to exercise its TSCA authorities with respect to byproducts. Chiefamong the reasons for this choice is that other authorities besides TSCA are better suited for addressing byproducts.4 EPA should not use TSCA to regulate manufacture and processing ofbyproduct mercury. 4. The Requested Section 8(a)Rulemakin~ Would Be Duplicative of CDR Rule Reporting Requirements The Petition requests EPA to require collection ofdata that is largely already required to be submitted under the CDR Rule. Thus,the Petition has failed to demonstrate the requested rule is necessary. The Petition asserts that the CDR Rule "does not collect the comprehensive data on mercury and mercury-compound manufacturing,processing,and imports that EPA needs." On the contrary, the CDR Rule asks for extensive information on reportable chemicals,which include mercury and mercury compounds. (A former exemption for inorganic chemicals was deleted prior to the 2012 reporting cycle.) EPA has expanded the information required to be reported over successive reporting cycles based on its perception of its needs for such information,and EPA has not found any reason to revise the required information since the United States ratified the Convention. The Petition finds the CDR Rule to be insufficient "first and foremost" because ofthe 25,000 lb. thresholds However,the petitioners have misread the CDR Rule. Beginning in 2016,reporting is required for chemicals for which EPA has taken certain regulatory actions with a reduced threshold of 2,500 lbs.6 The SNUR for elemental mercury will trigger that reduced trigger for reporting on that chemical.

4 See, e.g., 42 Fed. Reg. 84572,64587 (Dec. 23, 1977)(comment 52)(referring to plans to address hazardous byproducts under the Resource Conservation and Recovery Act (RCRA)). 5 Petition at 32. 6 40 C.F.R. § 711.8(b).

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### EPA has previously denied section 21 petitions for section 8(a)rulemaking on the basis that the

requested rule would be duplicative ofcurrent reporting requirements. It should do so here as well. 5. Under Section 9,EPA Must Use Its Other Statutory Authorities to Collect

Information on Mercury and Mercury Compounds or Leave Other Agencies to Do So Under Their Authorities EPA has undertaken numerous actions under other statutes to collect information on mercury, mercury compounds,and products containing any ofthose chemicals and to impose restrictions on their use and disposal. These include the following statutes, among others:$

• The Mercury-Containing and Rechargeable Battery Management Act • The Clean Air Act • RCRA • CERCLA Other federal agencies have also acted to collect information and to restrict mercury,mercury compounds,and products containing any ofthose chemicals under statutes such as the following: The Federal Food,Drug,and Cosmetic Act The Public Health Service Act (e.g., use ofthimerosal in biologics) Moreover,the Department ofthe Interior regulates mining in the United States. Ifmercury is a byproduct ofgold or other mining activities, as the Petition asserts, DOI should collect that information,under its authorities, not EPA under TSCA. The Petition does not even refer to these other statutes (those administered by EPA or those administered by other agencies),and thus it contains no explanation ofwhy those authorities are inadequate to meet the need for information. Section 9(a)directs EPA to coordinate with other federal agencies when considering action under TSCA that might be accomplished under laws that they administer. Under section 9(b)of TSCA,EPA must also coordinate any actions under TSCA with those under other statutes administered by EPA: The Administrator shall coordinate actions taken under this Act with actions taken under other Federal laws administered in whole or in part by the Administrator.

~ See, e.g., 65 Fed. Reg. 18097 (Apr.6, 2000)(denial ofa section 21 petition for a PAIR rule related to High Production Volume Challenge chemicals); 55 Fed. Reg. 17404 (Apr. 24, 1990)(denial ofa petition for a section 8(a) rule related to emissions from new carpets). $ A description ofEPA regulatory activities regarding mercury under its various authorities is available at http://www.

epa.gov/mercury.



### -5-

### There is nothing in the Petition to facilitate such coordination. Furthermore,under section 9(b)

EPA must use its other authorities and not TSCA ifthose other authorities would be adequate to address a concern,unless EPA finds that the public interest requires use ofTSCA: Ifthe Administrator determines that a risk to health or the environment associated with a chemical substance or mixture could be eliminated or reduced to a sufficient extent by actions taken under the authorities contained in such other Federal laws,the Administrator shall use such authorities to protect against such risk unless the Administrator determines,in the Administrator's discretion,that it is in the public interest to protect against such risk by actions taken under this Act The Petition makes no showing that the other authorities it cites are inadequate,or that the public interest mandate use ofTSCA. Indeed,with its emphasis on the use ofintentionally

manufactured chemicals rather than byproducts or emissions,TSCA is poorly designed for addressing mercury produced as a byproduct ofmining,manufacturing,or processing. EPA denied a section 21 petition in part because,as here, other authorities would be adequate to address a concern: Finally, while the petitioner acknowledges that PVC disposal might also be regulated under other EPA statutory authorities, such as RCRA,it has not explained why it believes it would be preferable to address the risks ofdisposal under TSCA,rather than through other statutory authorities. The petitioner's views on this question are especially difficult to infer given the absence ofinformation about the particular TSCA risk management action sought. This omission is an impediment to assessing whether a TSCA section 6 rule would be an appropriate means ofreducing potential risks related to the disposal of PVC,and (ifso)how such action could be coordinated,consistent with TSCA section 9(b), with other actions that EPA has already taken with respect to these chemical substances under other statutes that EPA administers. For example,the petitioner did not explain why it believes vinyl chloride poses an unreasonable risk that should be addressed under TSCA despite the impact ofmultiple rules regulating this chemical substance under the Clean Air Act(42 U.S.C. 7400 et seq.), including one that was recently established in 2012 (Ref. 3). See 40 CFR part 61,subpart F,and 40 CFR part 63,subparts DDDDDD and HHHHHHH.9

9 79 Fed.Reg.at 64724. See also 77 Fed.Reg.42181,42183 (July 18,2012) (denial ofsection 21 petition to require EPA to use TSCA to address PCBs that leach from ships sunk through a U.S.Navy program where EPA had "determined under TSCA section 9(b)that such regulation should be under [the Marine Protection,Research,and Sanctuaries Act],not TSCA .... The petitioners do no present any new information that would cause EPA to reconsider this determination" despite complaints that current actions under the other statute have proven to be insufficient); 60 Fed. Reg. 39169,39170(Aug. 1, 1995)(denial ofsection 21 petition on burning ofhazardous waste-derived fuel)("Releases to air, water and land from cement kilns are regulated under the Clean Air Act (CAA),Clean Water Act(CWA),and Resource Conservation and Recovery Act(RCRA). In 1992,23 ofthe 111 domestic cement-producing plants burned WDF to supplement traditional fossil fuels (FF) (Ref. 3,p.7367). Air emissions and disposal ofresidues from kilns burning WDF are regulated under the Boiler and Industrial Furnace (BIF)regulations issued under RCRA.").Similarly, EPA should deny the Petition because it fails to explain why other statutory authorities

administered by other federal agencies or by EPA are inadequate to collect any necessary information and why use ofTSCA for that purpose is necessary. CONCLUSION EPA should deny the Petition for the foregoing reasons.

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