American°

Chemistry

Council

September 8, 2015

Wendy Cleland-Hamnett, Director (7401 M)

Office of Pollution Prevention and Toxics

Office of Chemical 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 of the American Chemistry Council on the petition

submitted on July 10, 2015 by the Natural Resources Defense Council on behalf of several

organizations asking EPA to conduct a rulemaking under section 8(a) of the 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

Of Counsel:

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 of Interest .......................................................................................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

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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) of the Toxic Substances Control Act" (the Petition).

The Petition asks EPA to adopt a rule under section 8(a) of the 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 of section 21 that the petitioners demonstrate that the

issuance of a section 8(a) rule is "necessary to protection health or the environment against an

unreasonable risk of injury to health or the environment." EPA already requires regular

reporting of detailed 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 of mercury produced as

a byproduct of mining 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 of byproducts. EPA should not use TSCA here either.

Under section 9(b) of TSCA, EPA should not use TSCA to address production of mercury 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 of other federal agencies under statutes that they

administer.

DISCUSSION

1. ACC Statement of Interest

ACC members apply the science of chemistry 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 of chemistry is an $812 billion enterprise and a key element of the nation's

economy. It is the nation's largest exporter, accounting for twelve percent of all U.S. exports.

Chemistry companies are among the largest investors in research and development. Safety and

security have always been primary concerns of ACC 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.

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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 of receipt. 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 of proof on 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 of proof that 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 of mercury, 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

of information sought will be different for each product category, and the questions may

change from one group of stakeholders to another. As EPA considers what it believes the

domestic landscape should be for the use of mercury 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 of this strategy and

be refined by the information received by the Agency. In addition, the initiation of future

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).

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

pursue voluntary means of collecting 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 of the 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 of the 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 of SNURs, 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 of information 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 of TSCA, 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

of the principal sources of mercury 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 of the mercury.2

The Petition is virtually unique in asking EPA to require reporting on a byproduct3 of mining

operations, rather than a chemical that is intentionally manufactured. EPA has exempted persons

who manufacture or process byproducts from most of its 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 of another chemical substance or mixture." 40 C.F.R. §§ 7073, 7103(d), 7123(a),

716.3, 7203(d), 761.3, 7913(c).

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• 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 of byproducts 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. Chief among 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 of byproduct mercury.

4. The Requested Section 8(a) Rulemakin~ Would Be Duplicative of CDR Rule

Reporting Requirements

The Petition requests EPA to require collection of data 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 of the 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 of current 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 of those 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 of those chemicals under statutes such as the following:

The Federal Food, Drug, and Cosmetic Act

The Public Health Service Act (e.g., use of thimerosal in biologics)

Moreover, the Department of the Interior regulates mining in the United States. If mercury is a

byproduct of gold 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 of why 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 of a section 21 petition for a PAIR rule related to High

Production Volume Challenge chemicals); 55 Fed. Reg. 17404 (Apr. 24, 1990) (denial of a petition for a section 8(a)

rule related to emissions from new carpets).

$ A description of EPA regulatory activities regarding mercury under its various authorities is available at

http://www. epa.gov/mercury.

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

EPA must use its other authorities and not TSCA if those other authorities would be adequate to

address a concern, unless EPA finds that the public interest requires use of TSCA:

If the 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 of TSCA. Indeed, with its emphasis on the use of intentionallymanufactured chemicals rather than byproducts or emissions, TSCA is poorly designed for

addressing mercury produced as a byproduct of mining, 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 of disposal under TSCA, rather than through

other statutory authorities. The petitioner's views on this question are especially difficult

to infer given the absence of information 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 of reducing potential risks related to the disposal of

PVC, and (if so) 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 of multiple

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 of section 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 of section 21 petition on burning of hazardous

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 of the 111

domestic cement-producing plants burned WDF to supplement traditional fossil fuels (FF) (Ref. 3, p.7367). Air

emissions and disposal of residues 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 of TSCA for that purpose is necessary.

CONCLUSION

EPA should deny the Petition for the foregoing reasons.

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