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[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Proposed Rules]
[Pages 60584-60591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24849]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OPPT-2015-0626; FRL-9934-71]

Mercury; TSCA Section 21 Petition; Reasons for Agency Response

AGENCY: Environmental Protection Agency (EPA).

ACTION: Petition; reasons for Agency response.

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SUMMARY: This document provides the reasons for EPA's denial of a 
petition it received under Section 21 of the Toxic Substances Control 
Act (TSCA). The TSCA section 21 petition was received from the Natural 
Resources Defense Council (NRDC) and the Northeast Waste Management 
Officials' Association (NEWMOA) on June 24, 2015. The petitioners 
requested EPA to ``promulgate a TSCA section 8(a) rule that requires 
persons who manufacture, process, or import into the United States 
mercury, mercury compounds, or mercury-added products to keep records 
of and submit information to EPA concerning such manufacture, 
processing, or importation of mercury.'' After careful consideration, 
EPA denied the TSCA section 21 petition for the reasons discussed in 
this document.

DATES: EPA's response to this TSCA section 21 petition was signed 
September 21, 2015.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Thomas Groeneveld, National Program Chemicals Division (7404M), Office 
of Pollution Prevention and Toxics, Environmental Protection Agency, 
1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone 
number: 202-566-1188; email address: groeneveld.thomas@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general. This action may, 
however, be of interest to those persons who manufacture, process, or 
distribute in commerce mercury, mercury compounds, or mercury-added 
products. Since other entities may also be interested, the Agency has 
not attempted to describe all the specific entities that may be 
affected by this action.

B. How can I access information about this petition?

    The docket for this TSCA section 21 petition, identified by docket 
identification (ID) number EPA-HQ-OPPT-2015-0626, is available at 
http://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information 
about the docket available at http://www.epa.gov/dockets.

II. TSCA Section 21

A. What is a TSCA section 21 petition?

    Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA 
to initiate a rulemaking proceeding for the issuance, amendment, or 
repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA 
section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the 
facts that are claimed to establish the necessity for the action 
requested. EPA is required to grant or deny the petition within 90 days 
of its filing. If EPA grants the petition, the Agency must promptly 
commence an appropriate proceeding. If EPA denies the petition, the 
Agency must publish its reasons for the denial in the Federal Register. 
A petitioner may commence a civil action in a U.S. District Court to 
compel initiation of the requested rulemaking proceeding within 60 days 
of either a denial or the expiration of the 90-day period.

B. What criteria apply to a decision on a TSCA section 21 petition?

    Section 21(b)(1) of TSCA requires that the petition ``set forth the 
facts which it is claimed establish that it is necessary'' to issue the 
rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 
implicitly incorporates the statutory standards that apply to the 
requested actions. In addition, TSCA section 21 establishes standards a 
court must use to decide whether to order EPA to initiate rulemaking in 
the event of a lawsuit filed by the petitioner after denial of a TSCA 
section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA has 
relied on the standards in TSCA section 21 and in the provisions under 
which actions have been requested to evaluate this TSCA section 21 
petition.

III. Summary of the TSCA Section 21 Petition

A. What action was requested?

    On June 24, 2015, NRDC and NEWMOA petitioned EPA to ``promulgate a 
TSCA section 8(a) rule that requires persons who manufacture, process, 
or import into the United States mercury, mercury compounds, or 
mercury-added products to keep records of and submit information to EPA 
concerning such manufacture, processing, or importation of mercury'' 
(Ref. 1). In describing the framework for the envisioned rule, the 
petitioners offer definitions for various terms and modifications to 
exemptions to TSCA section 8(a) information-gathering rules (see 40 CFR 
704.5); describe persons who would be required to report in the 
envisioned information collecting and reporting apparatus; explain why 
existing quantity- and sales-based reporting thresholds should or 
should not apply to the persons who must report; establish the minimal 
amounts of information EPA should request via sets of example questions 
applicable to mercury, mercury compounds, mixtures containing mercury, 
and mercury-added products; and set forth their preferred frequency and 
format for reporting, as well as certification and recordkeeping 
requirements (Ref. 1).

B. What support do the petitioners offer?

    The petitioners state that a ``lack of comprehensive data on 
mercury production and use in the United States has been acknowledged 
by virtually all of the federal and state agencies involved in tracking 
or regulating the chemical in commerce'' (Ref. 1). The petitioners 
state that there is ``no mechanism in place to obtain such data,'' 
which is underscored by describing data gaps in the Interstate Mercury 
Education Reduction Clearinghouse (IMERC) and discussing the 
limitations of Agency resources, including the September 2014 ``EPA 
Strategy to Address Mercury-Containing

[[Page 60585]]

Products'' (EPA Strategy or Strategy) (Ref. 2), the Toxics Release 
Inventory (TRI) program (Ref. 3), and the Chemical Data Reporting (CDR) 
Rule (Ref. 4). Collecting comprehensive data is necessary, the 
petitioners say, to ``prevent unreasonable risks of injury to human 
health and the environment created by the ongoing manufacture, 
processing, and importation of mercury and mercury compounds'' (Ref. 
1). As such, the petitioners argue that a TSCA section 8(a) rule is 
``warranted'' because available data are inadequate to determine 
whether mercury used in products and processes, in fact, creates 
unreasonable risk and, if so, the appropriate means to reduce such risk 
(Ref. 1). The petitioners also point to the obligations of the Minamata 
Convention on Mercury (Minamata Convention), which the United States 
signed and joined on November 6, 2013, that they believe will go 
unfulfilled without the collection of comprehensive data. In addition, 
the petitioners argue that ``incomplete and non-comprehensive data 
hampers EPA's ability to effectively assess risks from exposure to 
mercury'' and, therefore, the TSCA section 8(a) rule envisioned ``would 
result in substantial benefits'' (Ref. 1). Based on these assertions, 
as well as a discussion of the toxicity, exposure pathways, and risks 
associated with mercury used in products and processes, the petitioners 
state that ``there is a reasonable--indeed, an ample--basis to conclude 
that a section 8(a) reporting rule for mercury is necessary to protect 
health and the environment against an unreasonable risk of injury to 
health and the environment from ongoing domestic uses of mercury in 
products and processes'' (Ref. 1).

IV. Disposition of TSCA Section 21 Petition

A. What is EPA's response?

    After careful consideration, EPA denied the petition. EPA found 
that the continued implementation of its published EPA Strategy (Ref. 
2) is sufficient to carry out TSCA, as well as preferable for achieving 
the goal it shares with the petitioners: To acquire the information 
needed to allow EPA to better understand continuing uses of mercury, to 
further reduce such uses, and to prevent potential exposure and risk to 
human health and the environment linked to releases of mercury into the 
environment. A copy of the Agency's response, which consists of a 
letter to the petitioners, is available in the docket for this TSCA 
section 21 petition.

B. What is EPA's reason for this response?

    EPA agrees with many aspects of the petition. The Agency agrees 
that mercury poses potential risks to human health and the environment 
and that there is value in gathering additional information to better 
understand continuing uses of mercury, to further reduce such uses, and 
to prevent potential risks to human health and the environment from 
mercury exposure. However, EPA believes that continued implementation 
of its EPA Strategy is a faster, more efficient pathway towards 
achieving our shared goals and is confident that the actions 
contemplated under the Strategy are both sufficient to carry out TSCA 
and preferable to the requested rulemaking.
    1. Background on TSCA section 8. TSCA section 8(a) (15 U.S.C. 
2607(a)) authorizes EPA to promulgate rules under which manufacturers 
(including importers) and processors of chemical substances must 
maintain records and submit such information as the EPA Administrator 
may reasonably require. TSCA section 8(a) also authorizes EPA to 
promulgate rules under which manufacturers and processors of mixtures 
must maintain records and submit information to the extent the EPA 
Administrator determines the maintenance of records or submission of 
reports, or both, is necessary for the effective enforcement of TSCA. 
TSCA section 8(a) generally excludes small manufacturers and processors 
of chemical substances or mixtures from the reporting requirements (see 
15 U.S.C. 2507(a)). However, EPA is authorized by TSCA section 
8(a)(3)(A)(ii) to require TSCA section 8(a) reporting from small 
manufacturers and processors with respect to any chemical substance or 
mixture that is the subject of a rule proposed or promulgated under 
TSCA section 4, 5(b)(4), or 6, or that is the subject of an order in 
effect under TSCA section 5(e), or that is the subject of relief 
granted pursuant to a civil action under TSCA section 5 or 7. TSCA 
section 8(a) also provides that, to the extent feasible, the EPA 
Administrator must not require reporting under TSCA section 8(a)(1) 
that is unnecessary or duplicative. If the Agency denies a petition 
submitted under TSCA section 21, judicial review for TSCA section 8(a) 
requires the petitioner to show by a ``preponderance of the evidence 
that . . . there is a reasonable basis to conclude that the issuance of 
such a rule or order is necessary to protect health or the environment 
against an unreasonable risk of injury'' (15 U.S.C. 2620(b)(4)(B)(ii)).
    2. State of domestic mercury marketplace. The United States has 
seen a strong downward trend of more than 97 percent in the domestic 
use of mercury in products over the past three decades. In 1980, the 
United States used more than 1,800 metric tons of mercury annually; in 
2010, the continued annual use of mercury in manufactured or imported 
products was approximately 52 metric tons. Likewise, the use of mercury 
in industrial processes, such as chlor-alkali manufacturing, has also 
fallen dramatically from 358 metric tons in 1980 to an estimated 38 
metric tons in 2001. This shifting landscape can be attributed to a 
number of factors, including market trends leading to the voluntary 
reduction of use of mercury in products and processes; federal, 
regional, state, and local programs that encourage the use of effective 
and economically feasible non[hyphen]mercury substitutes; state laws or 
regulations that prohibit or reduce the use of mercury in products; and 
Congressional actions that banned the sale of a range of mercury 
batteries and prohibited the export of mercury (e.g., the Mercury-
Containing and Rechargeable Battery Management Act of 1996 (Pub. L. 
104-142) and the Mercury Export Ban Act of 2008 (MEBA) (Pub. L. 110-
114)). The United States also negotiated and joined the Minamata 
Convention, which contains requirements aimed at reducing the use of 
mercury. The convergence of such historic trends and actions, as well 
as continued downward trends in mercury use in products in more recent 
years, helped identify categories of mercury-added products of greatest 
concern and guided the development of the EPA Strategy.
    3. The EPA Strategy: Development and implementation. In developing 
the EPA Strategy, the Agency did not believe it made sense to 
promulgate a comprehensive information-gathering rule for mercury, on 
top of the existing regulatory and statutory information collection 
requirements applicable to chemical substances generally. Rather, EPA 
decided to adopt a more targeted approach and to create a framework 
that was flexible and adaptive to observed trends in the use of 
mercury. As a result, the EPA Strategy seeks to build on the 
``demonstrated success for more than three decades of reducing mercury 
use in traditional product and process categories . . . to further 
reduce mercury use in products and certain processes in order to 
prevent future releases to the environment'' (Ref. 2).
    The EPA Strategy consists of five phases: (1) Update EPA's 
information on

[[Page 60586]]

mercury products and certain processes; (2) analyze updated mercury use 
information; (3) plan and prioritize mercury reduction activities; (4) 
take non-regulatory actions to reduce use; and (5) take regulatory 
actions to reduce use, if needed (Ref. 2). The Strategy is structured 
to provide a logical progression from the gathering of information to 
taking actions to reduce the use of mercury and, as necessary, mercury 
compounds. However, the Strategy is also intended to allow for 
proceeding immediately to such use reduction options should information 
warrant such actions, as well as reassessment of an intended course of 
action (e.g., methodology for gathering information) at any point 
during its implementation.
    The EPA Strategy specifically targets updating data regarding 
mercury quantities in ``new products entering the market, with 
particular attention to switches and relays'' and ``as appropriate, 
processes that use mercury as a catalyst'' (Ref. 2). For example, the 
use of mercury in switches and relays (including thermostats) sold in 
the United States decreased from approximately 68 metric tons in 2001 
to approximately 18 metric tons in 2010--a nearly 74 percent decrease 
in under a decade. However, at 33 percent of mercury used in products 
sold in the United States, switches and relays also represent the 
largest category of mercury-added products. In fact, in joining the 
Minamata Convention, the United States demonstrated that mercury used 
in eight of nine subject categories was reduced to de minimis levels. 
The lone category for which such a demonstration was not made was 
switches and relays. As a result, the Agency identified switches and 
relays as a priority category of mercury use in the EPA Strategy.
    The Agency has sufficient information on the use of mercury in 
certain categories of other mercury-added products (e.g., batteries, 
lamps, measuring devices). Yet, despite the aforementioned downward 
trend of use of mercury in products and manufacturing processes in 
general, EPA is interested in learning more about mercury-added 
products that continue to enter the market (i.e., new products) and the 
prevalence of the use of mercury and mercury compounds in catalysts.
    The Agency is currently in the first phase of implementing its 
Strategy, which lists priority mercury-added product and process 
categories (switches, relays, new products, and catalysts), describes 
the progression of stakeholders from whom information is to be 
collected (mercury manufacturers and importers, mercury processors, and 
other stakeholders), and commits to conducting outreach throughout the 
implementation of the Strategy (Ref. 2). Following this phase, EPA will 
assess information gathered and compare data to existing Agency 
baselines derived from IMERC, the TRI program, the CDR Rule, and other 
research (Phase 2). Results of the second phase will be used to define 
or modify product categories and identify remaining data gaps or other 
limitations that could affect the planning and prioritization of 
reduction activities (Phase 3). At this juncture, the Agency could 
consider the use of voluntary efforts to reduce the use of mercury 
(Phase 4), as well as a Section 8(a) rule or other appropriate 
regulatory measure (Phase 5). At this point in time, however, EPA 
believes the implementation of the EPA Strategy, which uses a variety 
of both voluntary and regulatory measures as needed, is sufficient to 
carry out TSCA.
    4. The EPA Strategy is working and will continue to work. The 
petitioners accurately identify the Agency's goals to continue to 
collect and analyze information to better understand the current and 
future use of mercury. However, the petitioners focus exclusively on 
the voluntary information-collection component within the first of five 
phases to conclude that ``the voluntary approach has not worked thus 
far, and there is no reasonable basis to believe it ever will'' and 
``the need for and the utility of a rulemaking that would require 
mandatory reporting from all mercury, mercury-compound, and mercury-
mixture manufacturers has been demonstrated'' (Ref. 1). By focusing on 
the Agency's preference to initially proceed on a voluntary basis, the 
petitioners overlook that the Strategy contemplates ``additional 
available regulatory steps being necessary'' (Ref. 2). In fact, the 
Agency finds that the best approach is to employ voluntary or 
regulatory mechanisms to collect information based on particular 
circumstances. For example, after publishing the EPA Strategy in 
September 2014, the Agency conducted a series of letter requests and 
teleconferences with companies identified as nine key players in the 
mercury marketplace in October and November 2014.
    While the petitioners express skepticism with this approach due to 
its initiation with only nine companies, this was a strategic approach 
that the Agency expected to yield relevant information. The initial 
list of nine was derived from more than one hundred potential companies 
based on thorough research and professional judgment to identify 
companies likely to provide a reasonably complete picture of the 
domestic market for recycling and selling mercury. This approach 
allowed for the systematic elimination of companies less likely to have 
significant information from consideration and minimized the potential 
burden to both stakeholders and the Agency. In fact, the information 
received led EPA to further narrow its investigation to five companies 
it believes to be the primary recyclers and distributors of mercury in 
the United States. Based on those efforts--and the failure of certain 
companies from the narrowed list of five to voluntarily provide agreed 
to information--EPA issued subpoenas in March 2015 to those five 
companies (Ref. 5).
    5. Effective use of regulatory tools via the EPA Strategy. The 
subpoenas consisted of twelve information requests designed to 
ascertain specific information on quantities of mercury manufactured 
(including imported), processed, stored on-site, or distributed in 
commerce (including transferred off-site, sold and exported), as well 
as lists of customers to whom mercury was sold (Ref. 5). The activities 
related to mercury were selected to cross-reference with similar 
reporting requirements for the TRI program and CDR Rule. Of particular 
interest to the Agency were quantities reported for mercury 
manufactured and processed (e.g., recycled from various waste streams), 
sold, imported, and exported, which represents key aspects of the 
domestic mercury marketplace. EPA requested this information to better 
understand how mercury flows through the five primary facilities that 
recycle and sell mercury with the goal of identifying the amount of 
mercury likely being used to produce mercury-added products or in 
manufacturing processes in the United States. The subpoenas requested 
that annual totals of mercury in pounds for such activities be reported 
for 2010 and 2013. These years were selected to not only coincide with 
IMERC reporting years, but also because they could provide a before-
and-after illustration of how two mercury-related measures affected the 
domestic mercury market place: MEBA and the conclusion of the 
negotiation of the Minamata Convention. The reporting years also were 
selected to allow a trend comparison for reported quantities without 
creating undue burden on the companies subject to the subpoenas. The 
subpoenas also requested customer lists for each company as of January 
1,

[[Page 60587]]

2015. This date was selected as a fixed and recent date relative to the 
issuance of the subpoenas in March 2015. Each of the five companies 
subject to the subpoenas supplied the information requested in full.
    Due to extensions granted to certain companies, some responses were 
submitted after the initial 30-day deadline. This resulted in the 
initial completion of the full data set at the end of June 2015, only 
days after the petitioners submitted their petition that concluded that 
certain approaches outlined in the EPA Strategy were inadequate. The 
Agency is currently evaluating the information submitted in response to 
the five March 2015 subpoenas. As necessary, EPA has followed up with 
companies and clarified responses submitted. Based on its initial 
review of submitted information, the Agency now has a better 
understanding of the flow of mercury in the U.S. marketplace and has an 
inventory of recent lists of companies that purchase elemental mercury 
from the five companies, including volumes and trends of mercury in key 
channels of commerce (e.g., manufactured, stored, sold, imported, and 
exported). The Agency understands that this information collection 
approach cannot account for imports of mercury-added products or 
mercury compounds that are not processed by the five companies subject 
to the March 2015 subpoenas. However, EPA intends to collect such data 
either through voluntary compliance with letters or through subpoenas, 
as it determines to be necessary for an adequate understanding of 
mercury use in the United States through further implementation of EPA 
Strategy and use of existing Agency resources.
    The petitioners express disappointment with the ``months'' that 
elapsed since the initiation of the voluntary inquiries to companies in 
October 2014 and the submission of their petition in June 2015 (Ref. 
1). In fact, the Agency conducted the voluntary portion of data 
collection between October 2014 and December 2014. When that process 
was not fruitful, the subpoenas were sent in March 2015. Responses to 
the March 2015 subpoenas were received by the end of June 2015. For 
comparison, new federal rulemakings often take several years to 
complete from development through the proposal, public comment, and 
finalization phases. A final information collection rule would then 
need to provide for some period of time following promulgation for the 
submission of the required information. EPA notes that it already 
collected data on mercury voluntarily and via subpoena and, based on 
that experience, could expeditiously issue any further needed 
subpoenas, whereas the timing of a rulemaking process is less 
predictable. The Agency gathered information via its Strategy in 
several months, new data to be collected by the petitioners' requested 
rule--or another Section 8(a) rule--may not be obtained for several 
years. For those reasons, EPA believes that the current approach used 
to collect information from companies that manufacture, recycle, and 
distribute in commerce elemental mercury has been successful, is more 
efficient than the development of a new rule, and is sufficient--with 
some adaptation of the substance of information requests for companies 
that use mercury in products and processes--to carry out TSCA.
    6. The EPA Strategy avoids unnecessary or duplicative reporting. 
Based on the above discussion, EPA disagrees that there is ``no other 
federal or state mechanism in place that collects the data on mercury 
production and use in the United States necessary to inform risk-
reduction activities'' (Ref. 1). As articulated by the petitioners, 
IMERC, the TRI program, and the CDR Rule each collect data in whole or 
in part related to mercury and mercury compounds. All of these 
reporting mechanisms are accessible online. While a single information 
collection and reporting apparatus identical to the petitioners' 
requested rule does not currently exist, existing tools, as implemented 
through the EPA Strategy, are sufficient to gather such data as 
necessary for the effective implementation of TSCA. EPA is committed to 
gathering such data, including--as appropriate--through the future use 
of TSCA section 8. For the same reasons, EPA also disagrees that the 
EPA Strategy ``implicitly acknowledges that the CDR Rule and its other 
existing reporting mechanisms are not sufficient to gather the data 
necessary to make sound decisions about mercury risk-reduction 
activities'' (Ref. 1).
    The petitioners also describe various ways in which the TRI program 
and CDR Rule collect data on mercury and mercury compounds yet how 
idiosyncrasies within each program prevent the reporting of the 
specific information they request to be collected. Where the 
petitioners see insufficiency, the Agency sees opportunity to use 
existing tools and resources to pinpoint specific data gaps, which may 
or may not require new regulatory or voluntary actions to gather 
information. EPA is using quantitative and qualitative information, 
particularly activity and use information reported to the TRI program, 
to help narrow the scope of potential stakeholders to be contacted as 
needed to collect information that EPA determines to be necessary. For 
example, EPA is reviewing information reported to the TRI program to 
identify and prioritize how to gather such information.
    The TRI program requires facilities that manufacture, process, or 
otherwise use more than 10 pounds of mercury or mercury compounds 
during the calendar year to report amounts released to the environment 
or managed through recycling, energy recovery and treatment (Ref. 6). 
While the TRI program does not require quantitative reporting for all 
manufacturing, processing, or use categories, a facility is required to 
report activities and uses of the toxic chemical including, but not 
limited to ``import,'' ``for sale/distribution,'' ``as a reactant,'' 
``as an article component,'' and ``as a chemical processing aid'' (Ref. 
7). In this instance, EPA does not see the lack of quantitative 
reporting as a dead end, but rather as a tool to narrow the number of 
companies to ask for more specific information related to the use of 
mercury in their products and processes. For example, a review of data 
submitted to the TRI program for ``mercury'' in 2013 yields 447 
facilities that manufactured, processed, or otherwise used mercury. 
That number can be narrowed to 60 facilities that processed mercury 
``as an article component'' (e.g., used in a product). When the same 
search is conducted for ``mercury compounds,'' more than 1,100 
facilities can be narrowed to 48 facilities reporting processing into 
articles. The use of such data allows EPA to reduce the scope of 
potential manufacturers of mercury-added products by more than 90 
percent that under the petitioners' proposed rule would be required to 
supply detailed, quantitative data. EPA will perform similar data 
sorting among facilities that report ``import'' and ``for sale/
distribution'' of mercury or mercury compounds, which will help further 
describe how such materials flow through the domestic marketplace. The 
Agency also plans to examine uses ``as a reactant'' and ``as a chemical 
processing aid'' to help identify the use of mercury or mercury 
compounds in manufacturing processes. As these examples demonstrate, 
the Agency believes that it can use existing data to better identify 
individual facilities for more targeted efforts to collect information.
    It is important to note that the 2016 reporting cycle for the CDR 
Rule (applicable to production volume information for calendar years 
2012,

[[Page 60588]]

2013, 2014, and 2015; submission period from June 1, 2016, to September 
30, 2016) will collect information from persons who manufacture mercury 
in quantities greater than or equal to 2,500 pounds (Ref. 4); the 
reporting threshold for mercury in the previous cycle was 25,000 pounds 
and 100,000 pounds for process and use information. As such, the Agency 
anticipates receiving quantitative data on mercury in the domestic 
marketplace from a larger pool of companies that manufacture (including 
import) and process mercury. In conjunction with the analysis of TRI 
program data, EPA plans to use the identities of companies reporting 
per the lowered threshold to further clarify the pool of potential 
entities from whom to collect more detailed information. Thus, EPA 
finds its existing resources, such as the TRI program and CDR Rule, can 
be instrumental not only in carrying out TSCA, but also to tailor 
future efforts to collect information on discrete categories of mercury 
products and processes.
    7. EPA intends to target specific information requests to specific 
entities. EPA anticipates that subsequent efforts to gather information 
from companies that produce or import mercury-added products and use 
mercury or mercury compounds in manufacturing processes may require 
contacting more entities than the nine EPA contacted in late 2014. EPA 
anticipates using a similar process of research and professional 
judgment to identify and prioritize companies to contact and will 
follow appropriate procedures to reach as many companies as needed to 
obtain relevant information, as necessary. For example, EPA is 
considering using TSCA section 11 to ask other companies the same kinds 
of questions posed in the March 2015 subpoenas, but with an emphasis on 
quantities of mercury and mercury compounds used in the production of 
products or in manufacturing processes.
    Looking at the specific information requested in the petition, the 
petitioners request two sets of notification requirements between two 
categories: (1) Mercury, mercury compounds, and mixtures containing 
mercury; and (2) mercury-added products. The petitioners' request of 
eight notification requirements for information to be reported for 
mercury, mercury compounds, and mixtures containing mercury can be 
broken down into three general categories. The first category consists 
of location and contact information for company headquarters, 
facilities that manufacture or process such substances, and technical 
staff. For mercury and mercury compounds, information comparable to the 
requests in the first category of notification requirements is reported 
to the TRI program and the CDR Rule. The second category includes 
quantitative data on such substances manufactured and processed for 
distribution in commerce, sold or transferred off-site, and stored on-
site. Due to the similarity with questions posed in the March 2015 
subpoenas, EPA is satisfied that it ascertained sufficient quantitative 
information for how mercury is used in such activities. For mercury 
compounds, EPA believes that information reported to the TRI program 
for activities and uses can be used to identify and prioritize 
companies and facilities that could be contacted using the same 
approach that the Agency used when reaching out to and ultimately 
issuing subpoenas to individual recyclers and distributors of mercury. 
The third category requests narrative descriptions of manufacturing and 
processing processes and end uses of such materials. EPA is not 
persuaded that such information for mercury or mercury compounds is 
necessary to carry out TSCA. In particular, it is more appropriate to 
pose questions regarding end uses to companies or facilities that use 
mercury or mercury compounds in products or manufacturing processes and 
not companies that recover mercury from various waste streams. Finally, 
the Agency is not persuaded that information on mixtures containing 
mercury is necessary to carry out TSCA. To the best of the Agency's 
knowledge, the only point in the cycle of mercury manufacture, use, 
recovery, and reuse when mixtures play a significant role is when 
mercury is recovered from mercury waste such as contaminated soil or 
impure laboratory mercury. The resulting elemental mercury is used, but 
EPA is not aware of any significant manufacture, processing, or use of 
mercury mixtures. As EPA reviews the information it has and will 
collect on mercury and mercury compounds, it will assess the need for 
information on mixtures and pursue such data as needed.
    For mercury-added products, the petitioners also request eight 
notification requirements. As discussed in regard to mercury, mercury 
compounds, and mixtures containing mercury, the notification 
requirements for location and contact information for company 
headquarters and technical staff pertain to comparable information 
reported to the TRI program or the CDR Rule. The Agency agrees that 
collection of the kinds of information listed in three of the eight 
notification requests suggested by the petitioners can be valuable: 
Quantities of mercury used in products (per unit and total for all 
units produced in a calendar year), descriptions of product categories 
produced, and a breakdown of products manufactured (including 
imported), sold domestically, and exported. Such requirements would 
provide quantitative information that would benefit the implementation 
of TSCA by helping to define the overall volume of mercury used, 
particularly in the priority category of switches and relays. EPA also 
agrees that it is helpful to ascertain information related to whether 
switches or relays are ``manufactured or processed solely for the 
purpose of replacement where no feasible mercury-free alternative for 
replacement is available'' (Ref. 1). This information would help the 
Agency better estimate costs and benefits associated with not only 
ongoing uses of the switches and relays themselves, but also the larger 
equipment and systems that use them as components. However, the Agency 
is not persuaded that notification requirements for descriptions of 
mercury-added components, including the number of and location in 
larger products, is necessary. At this time, EPA anticipates that 
quantitative data on amounts of mercury contained in or added to such 
products and processes is likely to be sufficient to make regulatory 
determinations.
    As previously discussed, switches and relays are the largest 
remaining domestic use of mercury in products by volume in the United 
States. Better defining the total quantity of mercury in that category, 
especially given the cessation of reporting of such information via 
IMERC, is a priority data point within a priority product category. 
Regardless, even in instances where EPA agrees with the notification 
requirements proposed by the petitioners, the Agency is not persuaded 
that the overarching proposed Section 8(a) rule is the appropriate 
means to collect such information. At this time, the Agency continues 
to implement its Strategy to determine its next steps, including, but 
not limited to using TSCA section 11, to collect information from 
additional companies on mercury used in products and processes. The 
assessment of information collected to date under the EPA Strategy will 
inform next steps in the current and future phases of the 
implementation. In so doing, the Agency is employing the variety of 
existing tools, including IMERC, the TRI program, and the CDR Rule, as 
well as the aforementioned voluntary outreach and targeted

[[Page 60589]]

subpoenas, as necessary. This process is expedient, efficient, and does 
not duplicate the reporting requirements of IMERC, the TRI program, and 
the CDR Rule. As the assessment of collected information dictates, the 
Agency continues to use the tools currently available, while not 
eliminating the possibility of implementing other voluntary and 
regulatory options if deemed necessary. Thus, EPA disagrees with the 
petitioners' conclusions as to the ultimate efficacy of the EPA 
Strategy, its sufficiency to carry out TSCA, and the need for EPA to 
immediately pursue a TSCA section 8(a) rulemaking.
    8. The EPA Strategy minimizes undue burdens. The Agency also 
disagrees with the petitioners' claim that their requested TSCA section 
8(a) rule ``would result in substantial benefits'' (Ref. 1). As 
previously stated, the Agency agrees that there is value in gathering 
more information for certain, individual categories of mercury-added 
products and processes identified by the petitioners. However, EPA is 
not persuaded that a TSCA section 8(a) rule at this time--as opposed to 
continued implementation of the EPA Strategy--would produce substantial 
or different benefits associated with collecting and reporting 
information on the use of mercury in products and processes. The EPA 
Strategy intends to provide for flexibility in the approach to ``better 
understand continuing uses of mercury in . . . products and processes'' 
and ``further reduce mercury use in products and certain processes in 
order to prevent future releases to the environment'' (Ref. 2). The 
Strategy allows for a dynamic and iterative process that can be adapted 
to specific categories of concern and makes clear that ``initiation of 
future phases may not necessarily be dependent on preceding phases'' 
(Ref. 2). Where the petitioners see a TSCA section 8(a) rule as the 
remedy to existing EPA resources that do not deliver the data they seek 
in the format they prefer, the Agency is wary of the potential for 
duplication of reporting requirements. The rule outlined by the 
petitioners not only creates potential overlap in the kind of data 
being submitted under the TRI program and CDR Rule, but also adds 
another mercury-based reporting requirement, with an incongruous 
reporting timeline, on top of these two established information-
gathering programs. This scenario would require reporting under TSCA 
section 8(a)(1) that is unnecessary and, in some instances, 
duplicative. Thus, where the petitioners may interpret the measure of 
benefit for the rule they request to derive from the breadth and depth 
of information collected, the Agency is focusing on more discrete areas 
of need (i.e., individual product and process categories) that can 
provide for less burdensome requirements for potential stakeholders and 
a more efficient approach for the Agency to carry out TSCA in regard to 
mercury and mercury compounds. As a result, the petitioners' requested 
TSCA section 8(a) rule would be unduly burdensome both to the Agency 
and regulated entities.
    9. Petitioners failed to demonstrate the requested rule is 
necessary to protect against unreasonable risk. EPA disagrees that 
``there is a reasonable . . . basis to conclude that a section 8(a) 
reporting rule for mercury is necessary to protect health and the 
environment against an unreasonable risk of injury to health and the 
environment from ongoing domestic uses of mercury in products and 
processes'' (Ref. 1). Central to the petitioners' claim is that:

    The lack of adequate data on mercury use in products and 
processes prevents a complete accounting of the full extent of the 
human health risks from exposure to mercury . . . [and] EPA cannot 
fully address the health and environmental risks from mercury 
exposure without adequate data about ongoing mercury uses . . . In 
addition, such data collection is necessary to allow EPA to monitor 
any development of new mercury uses, so that the agency can assess 
the risks to human health that may be presented by such new uses. 
(Ref. 1).

    The petitioners go on to state ``incomplete and non-comprehensive 
data hampers EPA's ability to effectively assess risks from exposure to 
mercury'' (Ref. 1). The petitioners then cite various EPA statements 
regarding risk management decision-making that speak to the 
availability and adequacy of information, as well as the EPA Strategy 
and its intent to gather more and updated information related to 
mercury used in products and processes (Ref. 1). The petitioners then 
conclude that without ``comprehensive national data about ongoing 
mercury uses in products and processes . . . EPA cannot make informed, 
sound decisions about how to further reduce risks from mercury 
exposure'' (emphasis added) (Ref. 1). The Agency disagrees with this 
conclusion. EPA is unaware of statutory authority, applicable case law, 
or Agency policy that would preclude risk assessment or actions to 
reduce risk based on the fact that available information is limited. 
While EPA risk assessment guidance lists the quality and 
comprehensiveness of data as factors that can diminish uncertainty, an 
``acceptable data set is one that is consistent with the scope, depth, 
and purpose of the assessment, and is both relevant and adequate'' 
(Ref. 8). In this context, adequacy can be determined ``by evaluating 
the amount of data available and the accuracy of the data'' (Ref. 8). 
The same guidance also states that ``[d]ata of insufficient quality 
will have little value for problem solving, while data of quality 
vastly in excess of what is needed to answer the questions asked 
provide few, if any, additional advantages'' (Ref. 8). To achieve its 
stated goals to ``acquire a more robust baseline of mercury quantities 
used in products and processes . . . [and] enhance data on manufacture, 
export, and import for certain categories of mercury use'' (Ref. 2), 
the Agency's current approach will provide data on mercury that are not 
only adequate and relevant, but also more narrowly tailored to products 
and processes of greatest concern (e.g., switches, relays, new 
products, and catalysts). While EPA recognizes that these products and 
processes are not exhaustive, these are the categories that EPA has 
rationally chosen to focus on first. EPA is aware that mercury may be 
added to other products listed by the petitioners (e.g., rotational 
balancers, wheel weights, and additives in a variety of children's 
products). If EPA determines that additional information targeted to 
these products is necessary, EPA will take steps necessary to collect 
it.
    At this stage of implementing the strategy, the Agency also is 
uncertain what, if any, information is needed on mercury compounds 
beyond use as catalysts in manufacturing processes. Where products are 
concerned, for example, the product category of greatest concern 
(switches and relays) contains elemental mercury, not mercury 
compounds. Although certain batteries contain mercury oxide, that 
product group is of lesser concern than switches and relays. EPA will 
collect information on use of mercury compounds in products if, in the 
course of carrying out its Strategy, the Agency determines such 
information to be necessary. At this stage, requiring reporting for 
mercury compounds in all products while an Agency assessment of needs 
for such information is pending would require unnecessary reporting 
under TSCA section 8(a)(1).
    Thus, while the Agency is mindful of the petitioners' analysis of 
mercury-related concerns (e.g., toxicity, exposure, risks presented by 
releases into the environment, and risk reduction), EPA cannot reach 
the petitioners' conclusion that ``a section 8(a) reporting rule for 
mercury is necessary to protect health and the

[[Page 60590]]

environment against an unreasonable risk of injury to health and the 
environment from ongoing domestic uses of mercury in products and 
processes'' (Ref. 1). While the petitioners articulate how the 
collection of comprehensive and national data could provide the Agency 
with more information to weigh in determining unreasonable risk, EPA 
finds that its current approach could be equally successful while 
imposing considerably less burden on both EPA and the regulated 
community in its implementation of TSCA, as well as allowing the Agency 
to move more quickly on the highest priority product categories. To 
date, this approach has yielded satisfactory information and the Agency 
expects that continued implementation of the EPA Strategy will be an 
appropriate and effective means to acquire the information needed to 
allow EPA to better understand continuing uses of mercury, to further 
reduce such uses, and to prevent potential exposure and risk for human 
health and the environment linked to releases of mercury into the 
environment.
    Furthermore, while the petition discusses the toxicity and 
potential risk associated with exposure to mercury and methylmercury, 
it does not provide a basis for finding that there is a reasonable 
basis to conclude that the requested rule is necessary to protect 
against an unreasonable risk. The finding of unreasonable risk under 
TSCA encompasses consideration of both the anticipated benefits of 
action under consideration as well as the anticipated costs. In this 
instance, the petition would need to provide a basis for EPA to 
conclude that any additional risk reduction that would be achieved by 
the requested rule, beyond that which will be achieved by EPA's current 
efforts, would justify the additional costs to EPA and the regulated 
community.
    In discussing risks associated with releases of mercury, the 
petitioners describe how mercury releases during the product lifecycle 
``significantly'' contribute to the total reservoir of ``mercury 
pollution'' (Ref. 1). After release, the petitioners describe how 
mercury cycles through environmental media, can be converted to 
methylmercury, and can potentially contaminate fish and humans (Ref. 
1). The petitioners provide an estimate of the number of newborns 
exposed to methylmercury (376 to 14,293 cases annually) from all 
sources and the costs to care for children exposed to levels of 
methylmercury associated with cognitive impairment considered mental 
retardation ($500 million to $17.9 billion annually) (Ref. 1). The 
petitioners then cite several EPA significant new use rules (SNURs) 
applicable to mercury used in various motor vehicle switches (Ref. 9); 
flow meters, natural gas manometers, and pyrometers (Ref. 10); and 
barometers, manometers, hygrometers, and psychrometers (Ref. 11), to 
demonstrate previous Agency efforts to reduce risks from mercury based 
on potential releases of mercury during the product lifecycle (Ref. 1). 
The petitioners also cite estimated reporting costs for a TSCA section 
8(a) rule of ``approximately $8,000 to $9,000 per report for the 
initial cycle . . . and between $5,000 and $6,000 for each reporting 
cycle'' (Ref. 1). However, the information provided in the petition on 
the impacts of mercury exposure, including the monetized risk estimate, 
relates to all sources of mercury pollution; it provides limited 
information to support the need for the requested rule to collect 
information as to ongoing uses. In addition, the petition does not 
provide a basis to conclude that the requested rule would provide for 
any additional risk reduction beyond that which will be achieved by 
EPA's current efforts, or that any such reduction would justify the 
additional cost to EPA and the regulated community. EPA notes in this 
regard that the petition misstates the baseline for judging the 
benefits of the requested rule by not accounting for the significant 
reduction in the CDR reporting threshold for mercury, as discussed 
above.
    10. EPA will continue its successful voluntary and regulatory 
efforts. Furthermore, the Agency is already taking voluntary and 
regulatory measures related to mercury, some of which are listed in the 
petition (e.g., SNURs for various mercury-added products, proposed rule 
for dental effluent guidelines, emission standards for hazardous air 
pollutants from coal- and oil-fired electric utility steam-generating 
units, and the March 2015 subpoenas) (Ref. 1). EPA leads a voluntary 
initiative to phase out use of mercury in industrial and laboratory 
thermometers, which led to the development of the document ``A Guide 
for Federal Agencies on Replacing Mercury-Containing Non-Fever 
Thermometers'' (Ref. 12). The Agency also collaborates in voluntary 
programs such as the Energy Star Program co-sponsored by EPA and the 
Department of Energy, under which participating manufacturers agree to 
limit the mercury content of lamps, and the National Vehicle Mercury 
Switch Recovery Program and follow-on initiatives, which manages, on a 
nationwide basis, programs to collect, transport, retort, recycle, or 
dispose of elemental mercury from automotive switches. Finally, EPA 
leads the mercury in products partnership within the United Nations 
Environment Program's Global Mercury Partnership, an international, 
voluntary effort that strives to phase out and eventually eliminate 
mercury in products and to eliminate releases during manufacturing and 
other industrial processes via environmentally sound production, 
transportation, storage, and disposal procedures (Ref. 13).
    In sum, the Agency finds that the requested promulgation of a TSCA 
section 8(a) is neither timely nor warranted to carry out TSCA pending 
the continued implementation of the approaches set forth in the EPA 
Strategy.

V. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.

1. NRDC/NEWMOA. Petition to Promulgate Reporting Rules for Mercury 
Manufacturing, Processing, and Importation Under Section 8(a) of the 
Toxic Substances Control Act. June 24, 2015.
2. EPA. EPA Strategy to Address Mercury-Containing Products. 
September 2014. Available at http://www.epa.gov/mercury/pdfs/productsstrategy.pdf.
3. EPA. Toxic Chemical Release Reporting; Community Right-to-Know. 
Federal Register. 53 FR 4500, February 16, 1988 (FRL-3298-2).
4. EPA. TSCA Inventory Update Reporting Modifications: Chemical Data 
Reporting. Federal Register. 76 FR 50816, August 16, 2011 (FRL-8872-
9).
5. EPA. Subpoena and Information Request. March 20, 2015. Available 
at http://www.epa.gov/mercury/pdfs/Hg_FormalRequest_SIGNED_03-20-2015.pdf.
6. EPA. Emergency Planning and Community Right-to-Know Act--Section 
313: Guidance for Reporting Toxic Chemicals: Mercury and Mercury 
Compounds Category. August 2001. Available at http://www.epa.gov/tri/reporting_materials/guidance_docs/pdf/2001/2001hg.pdf.
7. EPA. Form R. Available at http://www2.epa.gov/sites/production/files/2015-01/documents/2014_form_r.pdf.

[[Page 60591]]

8. EPA. Guidelines for Exposure Assessment. May 29, 1992. Available 
at http://www.epa.gov/raf/publications/pdfs/GUIDELINES_EXPOSURE_ASSESSMENT.PDF.
9. EPA. Mercury Switches in Motor Vehicles; Significant New Use 
Rule. Federal Register. 72 FR 56903, October 5, 2007 (FRL-8110-5).
10. EPA. Elemental Mercury Used in Flow Meters, Natural Gas 
Manometers, and Pyrometers; Significant New Use Rule. Federal 
Register. 75 FR 42330, July 21, 2010 (FRL-8832-2).
11. EPA. Elemental Mercury Used in Barometers, Manometers, 
Hygrometers, and Psychrometers; Significant New Use Rule. Federal 
Register. 77 FR 31728, May 30, 2012 (FRL-9345-9).
12. EPA. A Guide for Federal Agencies on Replacing Mercury-
Containing Non-Fever Thermometers. June 2013. Available at http://epa.gov/mercury/pdfs/Non-Fever-Mercury-Thermometers-Guide-for-Federal-Agencies-FINAL.pdf.
13. UNEP. Mercury-Containing Products Partnership Area Business 
Plan. June 28, 2013. Available at http://www.unep.org/chemicalsandwaste/Mercury/GlobalMercuryPartnership/Products/tabid/3565/language/en-US/Default.aspx.

    Authority: 15 U.S.C. 2601 et seq.

    Dated: September 21, 2015.
James J. Jones,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2015-24849 Filed 10-6-15; 8:45 am]
 BILLING CODE 6560-50-P
```