Great Lakes Binational Toxics Strategy

Stakeholder Forum - 1998

IMPLEMENTING THE BINATIONAL TOXICS STRATEGY
Mercury Workgroup

Background Information on Mercury Sources and Regulations

III. How is Mercury Regulated?

Mercury regulations span multiple federal and state statutes, as well as multiple agency jurisdictions. For example, the Environmental Protection Agency (EPA) regulates mercury in pesticides, and mercury releases into the environment through air, water, and land disposal limits. The Food and Drug Administration (FDA) regulates mercury in cosmetics, food, and dental products. The Occupational Safety and Health Administration (OSHA) regulates mercury air exposures in the workplace.

Unlike the separate regulatory structure created for PCBs under the Toxic Substances Control Act (TSCA), no statute, at a federal level, has strategically identified mercury as a sole source of concern. Instead, mercury is one of several substances covered under the overarching structure of numerous statutes. In some cases, mercury receives more attention than other substances covered in the same statute. Mercury regulations do not apply uniformly to all source categories. Thus, the nature and completeness of mercury regulation varies by statute. Furthermore, aspects of mercury regulation extend beyond the traditional realm of environmental statutes. Federal and state agencies are exploring efforts to curtail the use of mercury, not just its release, in order to focus on prevention opportunities.

Individually, no single regulation appears to motivate substantial change in mercury use and release. Collectively, however, the existing set of regulations has caused a dramatic decline in mercury use. Whether or not these regulations have caused a similar drop in mercury releases is not readily known. However, mercury is beginning to command more widespread public recognition, and public concern is becoming a powerful leveraging tool to change manufacturing practices. It is important to recognize that the face of mercury regulations is changing rapidly.

This section describes the regulations that affect mercury use and release. We have provided tables that describe how existing mercury regulations apply to mercury-containing products and sources that use and/or release mercury. From this information, we can identify the extent to which individual mercury sources are covered--or not covered--by existing regulations, and the opportunities that might exist to encourage additional reductions mercury use and release.

Table 8 illustrates the different categories of mercury regulations used in this report, and the applicable statutes or regulations for each category. Table 9 shows the federal environmental management standards for mercury. Tables 10 and 11 summarize mercury product regulations. Table 12 summarizes the potential changes in mercury regulation. At the end of the report, Appendix B provides a detailed description of mercury sources and specific release regulations; Appendix C describes the regulations affecting mercury products; and Appendix D describes the main provisions of Great Lakes states' mercury-specific statutes.

A) Types of Mercury Regulations

To understand how existing mercury regulations influence the full spectrum of economic activities that involve mercury, it is helpful to first distinguish between regulations that have a direct effect on sources from those that have an indirect effect on sources.

Use- or release-related regulations have a direct effect on sources that use mercury or release mercury into the environment. These regulations specify, for individual mercury sources, the costs and/or conditions associated with using and releasing mercury during production or disposal. This project is concerned primarily with the structure of use- and release-related regulations and the extent to which existing regulations encourage pollution prevention.

Environmental management standards, on the other hand, have an indirect effect on individual sources. Environmental standards are numeric criteria that specify a maximum acceptable mercury concentration for different media, based on scientific or risk-based criteria. For instance, mercury standards exist for water, sludge, fish tissue, drinking water, and several other media. These standards provide a yardstick against which to measure the effectiveness of mercury release regulations.

In contrast to use- and release-related regulations which apply directly to individual sources, environmental standards remain independent of specific sources. However, environmental standards exert an important effect on sources that release mercury to any media. For instance, sewage treatment plants must ensure that the mercury content of their sludge remains below the mercury concentration specified for land application. Even absent a specific mercury effluent limit, the POTW must still work with its dischargers to minimize mercury content in their discharges to the treatment plant.

Table 8: Mercury: Regulatory Overview

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B) Mercury Use Regulations

Regulations associated with mercury use in commerce impose costs, conditions, and/or restrictions associated with obtaining, selling, using, or transporting mercury. We have used the following categories to describe mercury use regulations: (1) commerce-related regulations such as taxes and transportation requirements; (2) product-related restrictions; and (3) reporting requirements.

Mercury use regulations affect only those facilities that use mercury as an input. They do not affect those sources that release mercury incidentally as a by-product. For each statute, we describe the mercury-specific information, the type of regulatory mechanism used, and any potential changes to the current regulatory status.

1) Mercury in Commerce

Provisions of several statutes regulate different aspects of mercury in commerce. Excise taxes and import taxes directly affect the cost of using mercury as an input in manufacturing processes; regulations governing mercury sales from the National Defense Stockpile influence the amount of mercury available for purchase; and transportation requirements impose restrictions on mercury transport.

a) Obtaining Mercury

Excise Tax: Internal Revenue Code of 1986 (26 USCA §4661)

Mercury Information: The Internal Revenue Code imposes taxes on 40 chemicals, including mercury, that are sold by the manufacturer, producer, or importer . The tax rate for mercury is $4.45/ton, the second highest tax rate listed (10 substances have the highest tax rate of $4.87/ton).

Regulatory Mechanism: Input/sales tax

Potential changes: None identified

Import Tax: Harmonized Tariff Schedule of the United States

Mercury Information: Mercury and several mercury compounds are subject to import taxes under the Harmonized Tariff Schedule of the United States, which identifies import taxes on all goods imported into the United States from most-favored-nation (MFN) countries, as well as from special treaty nations and non-most-favored-nation (non-MFN) countries.

For 1994, the tax rate for mercury imports from MFN countries is 16.5 ¢/kg, compared to a 55.1 ¢/kg tax on imports from non-MFN countries (item 2805.40). Due to special treaty agreements, no duty is imposed on mercury imports from Canada, Israel, Bolivia, Colombia, Ecuador, and Caribbean Basin countries.

Regulatory Mechanism: tax

Potential Changes: Under GATT, mercuric oxide, a mercury compound used frequently in medical and military batteries, will be exempt from all U.S. import duties, effective July 1, 1995. Until the end of 1992, facilities that imported mercuric oxide enjoyed duty-free imports, as a result of a special line-item tariff exemption heading (9902.28.25). This duty-waiver lapsed at the end of December 1992. In January 1993, Iowa representatives introduced bills into both houses of Congress designed to extend the waiver for several more years (S.397 (Grassley), HB2522 (Grandy)). Neither bill emerged from committee, and, thus, the import duty on mercuric oxide has remained in effect since January 1993. The GATT duty-waiver will replace the need to amend the Harmonized Tariff Schedule with specific legislation.

Mercury recycling equipment is also subject to import taxes. A bill introduced by Minnesota Senator Durenberger (S.1308) would suspend the duty on equipment used to recycle mercury and other parts of fluorescent light bulbs (adding sections 9902.87.17 and .18 to amend sections 8419.40.00 and 8479.82.00). A Swedish company manufactures the only equipment capable of separating each part of a fluorescent bulb and distilling mercury pure enough for industrial reuse. A duty-waiver would lower the cost of recycling mercury from fluorescent lamps.

Government mercury stockpile sales: Strategic and Critical Materials Stockpile Act (50 USCA §98)

Mercury Information: The Strategic and Critical Materials Stockpile Act regulates mercury that the Defense Logistics Agency (DLA) sells from the National Defense Stockpile. The amount of mercury sold from the stockpile has the potential to affect the mercury market, although DLA considers its impact on the market when requesting Congressional authorization for sales. DLA accepts daily bids for mercury. Over the last year, the price of DLA mercury has ranged from $57 - 82 per flask.

DLA must submit an Annual Materials Plan to Congress that includes its requests for selling materials deemed excess to stockpile needs for each fiscal year, including projections for the following four years. For fiscal year 1994, DLA initially received authorization to sell 10,000 flasks of mercury, but reached that limit by early 1994. In April, DLA received Congressional authorization to increase fiscal year 1994 mercury sales to 50,000 flasks, a five-fold increase that is more than three times the estimated total US consumption of mercury for 1993. By comparison, DLA had authority to sell 10,000 flasks of mercury (345 metric tons) in fiscal year 1993, but by year's end, sold only 8,250 flasks (284.6 metric tons).

Until fiscal year 1994, funds received from stockpile sales were used only for stockpile-related activities. However, the Defense Appropriation Act for fiscal year 1994 (PL 103-160, §305) changed the allowable uses of stockpile revenues, specifying that up to $500 million be transferred to Department of Defense operations and maintenance accounts. This change, combined with favorable market conditions and increasing interest in stockpile materials, motivated DLA to seek approval to sell additional quantities of several stockpile materials, including mercury.

Potential changes: In July, 1994, DLA suspended future mercury sales until a number of potential environmental implications can be addressed. EPA will be represented on the market impact committee that reviews stockpile sales. DLA has submitted its 1995 Annual Materials Plan to Congress, requesting authorization to sell 20,000 flasks of mercury for fiscal year 1995. The House Armed Services subcommittee, chaired by Rep. Earl Hutto (D-FL), handles strategic material issues. DLA is also considering offering long-term contracts for mercury purchases.

b) Transporting Mercury

Transportation: The Hazardous Materials Transportation Act

Mercury Information: The Department of Transportation regulates hazardous materials transport under the Hazardous Materials Transportation Act (HMTA). Mercury and mercury compounds are hazardous substances subject to packaging, shipping and transportation rules for hazardous materials. RCRA regulations for hazardous waste transporters incorporate HMTA rules.

Regulatory mechanism: operating requirements, labeling

Potential changes: None identified

c) Using Mercury

Mercury Information: Currently, only Minnesota has a use-restriction law providing that mercury sold in the state will be used only for medical, dental, instructional, research, or manufacturing purposes. Sellers must provide buyers with a material safety data sheet and have the buyer sign a statement of proper use and disposal.

2) Mercury in Products

Mercury-containing products are regulated in several different ways. At a federal level, mercury product regulation has generally centered around health-based reasons to eliminate mercury from products, using the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA) regulations.

In recent years, many states have taken a different approach. Restrictions on mercury-containing products, once used sparingly by the federal government, are increasing rapidly at the state level. States are beginning to move beyond strictly health-based concerns associated with particular products, and are looking instead to the waste disposal problems associated with mercury containing products. Many Great Lakes states, most notably Minnesota, are beginning to ban the sale of certain products that contain mercury (e.g., toys and shoes), limit the content of mercury in other products (e.g., batteries and packaging), and impose recycling requirements and disposal restrictions on mercury-containing products.

At present, mercury product laws represent a patchwork of regulations that vary by state. Table 10 compares characteristics of the most common mercury product regulations in each of the Great Lakes states. Table 11 summarizes the regulations that affect mercury-containing products at a national level and in each of the Great Lakes states. Appendices C and D describe each of these regulations in more detail. Appendix E shows the different types of mercury battery legislation in place nationwide.

At a federal level, two statutes have been used to limit mercury content or curtail mercury use in specific products.

Statute: Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

Mercury Information: FIFRA covers the sale and use of pesticides, including registration of chemicals that meet health and safety tests. Until recently, several mercury compounds were registered as pesticides, bactericides, and fungicides. By 1991, however, all registrations for mercury compounds in paints had been canceled by EPA or voluntarily withdrawn by the manufacturer. Registrations for calo-chlor and calo-gran, the last mercury-based pesticides registered for use in the United States (to control pink and grey snow mold) were voluntarily canceled by the manufacturer in November 1993. Existing stocks may be sold until depleted.

Regulatory Mechanism: ban, cancellation

Potential changes: None identified

Statute: Federal Food, Drug, and Cosmetic Act (FFDCA)

Mercury Information: The Food and Drug Administration is responsible for mercury in food, drugs, and cosmetics. Mercury use as a preservative or antimicrobial is limited to eye-area cosmetics or ointments in concentrations below 60ppm. Yellow mercuric oxide is not recognized as a safe and effective ophthalmic anti-infective ingredient.

The FDA also regulates dental amalgam under FFDCA. Dental mercury is classified as a Class I medical device, with extensive safety regulations on its use. Dental amalgam alloy is classified as a Class II device, subject to additional special controls.

Regulatory Mechanism: content restriction, use conditions, labeling

Potential Changes: None identified. However, California may require warnings on dental amalgam above and beyond FFDCA rules, under its Safe Drinking Water and Toxic Enforcement Act (Proposition 65), which requires businesses to warn employees and the public if business activities result in emissions of listed chemicals.

Federal regulations may soon take a different approach to mercury product regulation. Two bills introduced recently into Congress would impose restrictions on the mercury content in packaging and batteries ("Mercury-Containing and Rechargeable Battery Management Act," S1949 (passed the Senate in May 1994); and HB4528 (same language). Similar language ins included in the "Lead Exposure Reduction Act," which will be considered by Congressman John Dingell's Energy and Commerce Committee). A bill to limit mercury content in packaging materials was introduced in 1993. If passed, these bills would establish national standards for allowable mercury content in batteries and packaging. Currently, over a dozen states independently limit mercury content in batteries and packaging.

TABLE 10 - Common Mercury Product Regulations in the Great Lakes States

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TABLE 11 - Summary of Mercury Product Regulations

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3) Reporting Requirements

Mercury use reporting is seldom required under the existing regulatory framework. Most reporting requirements track mercury releases, and are discussed separately in the "Mercury Release" section that follows.

At a federal level, only facilities that exceed threshold planning quantities for mercury under SARA Title III regulations must report that quantity to their local emergency planning commission. This program is included under "Releases," because it is geared toward spill prevention, rather than use. EPA is currently considering a chemical use inventory, which would track the quantities of chemicals used at individual facilities.

Currently, only Michigan has regulations that specifically require facilities to report the quantities of chemicals used. Under the Part 9 rules of Act 245, Michigan's water pollution control act, businesses that use any substance listed on the "Critical Materials Registry" must report the quantities of each substance used and released. Mercury is included the Critical Materials Registry. The state uses this information to assist in permit development and compliance in its water program.

C) Mercury Release Regulations

This section describes regulations that affect mercury release into air and water, as well as waste disposal, and requirements for public disclosure of releases (e.g., TRI reporting). Specific statutes--at a federal and/or state level--regulate mercury in each of these different categories. Appendix B shows the specific mercury release regulations that apply to each mercury source.

The Clean Air Act, Clean Water Act, and the Resource Recovery and Conservation Act (RCRA) all operate differently, and impose different thresholds that influence the extent to which mercury releases are covered. In addition, states have the flexibility to impose site- specific mercury regulations on individual sources. With the exception of the Toxic Chemical Release Inventory (TRI), which specifically requires facilities to report chemical releases into all media, programs that require mercury release reporting are incorporated into broader regulatory programs.

The following information is provided for each statute discussed: the principal provisions that affect mercury releases; the specific sources regulated; the threshold that triggers coverage; the regulatory mechanism(s) used; environmental standards included in the statute; potential changes to existing regulations; and other relevant statutes that may provide similar information.

1) Mercury Air Emissions

Statute: Clean Air Act

Principal Provisions that affect mercury releases:
Mercury and mercury compounds are considered Hazardous Air Pollutants (HAPs) under the Clean Air Act. To date, EPA has established National Emission Standards for Hazardous Air Pollutants (NESHAPs) for mercury emissions from three source categories: ore processing facilities, mercury cell chlor-alkali plants, and sewage sludge driers.

EPA will also be promulgating a new category of regulation, known as maximum achievable control technology (MACT standards) for "major source" in any listed source category. Major sources are defined as those sources that release 10 tons per year of any HAP, or 25 tons per year in total HAP emissions. Mercury releases alone are unlikely to trigger the major source definition. For instance, Wisconsin's air point source inventory showed the highest mercury release at 1000 pounds, well below a 10 ton (20,000 pound) threshold for major sources.

It is too early to tell the extent to which MACT standards will influence mercury release levels. MACT standards will be defined based on an analysis of existing control technology for a given source category. Thus, if mercury controls are not currently in use, they may not be part of a defined MACT standard. EPA may set lesser quantity cutoffs, which would redefine the level at which a facility would be defined as a major source.

Under the Title V Operating Permits program, states may impose emissions fees up to $25/ton of emissions for all chemicals. Facilities releasing mercury are subject to this fee for their mercury emissions. Without a differential fee structure, the fee alone is not likely to be high enough to spur reductions in mercury emissions. For instance, Wisconsin's largest source of mercury air emissions, an electric utility, would only pay $15.90 for its mercury releases (.63 ton @ $25/ton).

Specific Sources covered: Only three source categories have NESHAPs for mercury emissions: (1) mercury cell chlor alkali plants (2) sewage sludge incinerators and driers (3) mercury ore processing facilities.

Individual states may impose specific mercury emissions limits on individual facilities. For instance, many states impose mercury emissions limits on municipal and hazardous waste incinerators.

Threshold that triggers coverage: Listed source category for NESHAPs (no numeric thresholds); MACT threshold not yet defined, but will probably be specific to source categories.

Regulatory mechanism(s): emissions limits, emissions fees, permits, monitoring, operating requirements (which may include pollution prevention), reporting.

Environmental Standards: No federal ambient air mercury standards

Potential Changes: The 1990 Clean Air Act amendments single out mercury for additional study--and potential future regulations--more than any other substance. The following studies may potentially alter significantly the manner in which mercury air emissions are regulated:

Mercury Study (§112(n)(1)(B): The 1990 Clean Air Act amendments mandated a special study of mercury emissions to the environment. The study, which will be finalized in early 1995, is estimating the relative contribution of mercury emissions from source categories, the public health and environmental effect of such emissions and evaluating available control technologies and their costs.

EPA must also list (by 1995) the source categories that account for at least 90% of aggregate emissions for seven pollutants, including mercury (§112(c)(6)). Information developed for the mercury study will contribute to this evaluation. Sources identified in the §112(c)(6) strategy will be subject to MACT standards within ten years.

Utility Study (§112(n)(1)(A)): Closely tied to the mercury study is the Utility Emissions Study, mandated by Section 112(n)(1)(A) of the 1990 Clean Air Act amendments. This study, scheduled for completion in November 1995, will describe in detail the contribution of utilities to mercury emissions and other HAPs. The CAA exempted utilities from the categories of sources potentially subject to MACT standards until the study is completed. The study may recommend specific controls, including controls for utility boilers, which are currently unregulated for mercury emissions.

Municipal Waste Incinerator Limits (§129): EPA has begun a rulemaking for mercury emissions from municipal and medical waste incinerators.

Great Waters Program: Section 112(m) required EPA to study atmospheric deposition of mercury and other substances into several large water bodies, including the Great Lakes. The program is geared toward building an improved atmospheric monitoring network that will enable EPA and other agencies to study the relative contributions of different HAPs and the extent to which atmospheric deposition causes human health or environmental problems. If necessary, EPA may require additional controls on certain sources as a result of this study. Under §112(m)(5), EPA is required to assess the contribution of atmospheric deposition to pollutant loadings, the environmental and public health effects of atmospheric deposition and the extent to which atmospheric deposition contributes to water quality standard exceedances. The Great Waters report recommends that EPA promulgate Lesser-Quantity Emissions Rates for mercury.

Other relevant statutes: Mercury air releases are listed in a facility's TRI report, provided the facility meets the TRI threshold reporting requirements. RCRA regulations cover emissions from hazardous waste combustion, and boilers and industrial furnaces. Existing regulations do not include specific mercury standards.

Statute: Occupational Safety and Health Act

Mercury Information: The Occupational Safety and Health Administration has responsibility for maintaining safe workplace conditions. OSHA sets permissible exposure levels for mercury in workplace settings. Mercury is listed as a neurotoxin capable of causing behavioral changes, decreased motor function and other effects on the nervous system (29CFR1926.59). OSHA mercury standards also recommend that skin contact should be avoided.

Workplace standards may influence the types of processes used at a facility. For instance, OSHA standards for cadmium were tightened recently. Stricter OSHA limits for cadmium will force many cadmium users to modify their processes or eliminate cadmium entirely in order to meet these new standards.

Regulatory Mechanism(s): operating requirements, inspections

Environmental Standards: workplace air concentration levels

Specific Sources covered: Facilities that use mercury are subject to mercury standard

Potential Changes: None identified. However, the Agency for Toxic Substances and Disease Registry (ATSDR), which evaluates exposure levels for hazardous substances at superfund sites under CERCLA, recently revised its toxicological profile for mercury. Although these levels have no direct regulatory effect, they may cause other agencies that evaluate mercury exposure levels to re-evaluate existing standards.

2) Mercury Discharges to Water

Statute: Clean Water Act

Principal Provisions that affect mercury releases:
Mercury is listed as a toxic pollutant under §307(a) of the Clean Water Act. For mercury discharge, Clean Water Act regulations specify technology-based effluent limits for classes and categories of industries, and describes the circumstances in which states may require effluent limits or monitoring requirements more stringent than technology-based standards. States may also set water quality standards for pollutants including mercury. The Clean Water Act relies on a permit system, known as the National Pollutant Discharge Elimination System (NPDES) to regulate water discharges. Facilities may be assigned a specific mercury discharge limit, or may only be required to monitor their discharge for mercury. Facilities report actual discharge levels in Discharge Monitoring Reports (DMRs), which serve as the basis for determining compliance.

Pretreatment standards regulate industries that discharge into a publicly owned treatment plant (POTW) instead of discharging directly into a receiving water body. Regulations list industrial categories subject to national categorical pretreatment standards for new and existing facilities that discharge into treatment plants. POTWs with approved pretreatment programs may set permit limits and conduct inspections of industrial users. Facilities that do not have specific pretreatment standards for mercury (or other hazardous substances), are supposed to notify the POTW of any hazardous waste discharge that exceeds 100kg per month. Wastestreams from certain manufacturing processes that may involve mercury, such as fluorescent lamps and switchgear, are excluded from categorical pretreatment standards because they are considered dilute.

Mercury is included in the list of chemicals eligible for removal credits at a POTW. That is, a POTW may allow a facility to discharge a higher quantity of mercury provided that the POTW meets the applicable mercury standard in its sludge without additional costs.

EPA Region 5 Water Division recently revised its enforcement program for certain chemicals to trigger enforcement investigations earlier than the previous program. Under the Great Lakes Enforcement Strategy, EPA will target violations of daily maximum permit limits. This screening criteria is more stringent than the national definition of significant noncompliance, which targets violations of monthly average limits.

Specific Sources covered: The Clean Water Act lists technology-based standards for the following industry source categories: Inorganic Chemicals Manufacturing, chlor-alkali subcategory (mercury cell process)(40CFR415.60); Nonferrous Metals category including, primary antimony subcategory (40CFR421.140), secondary mercury subcategory (40CFR421.200), primary precious metals and mercury subcategory (40CFR250); Steam electric power generation (40CFR423--mercury is an Appendix A priority pollutant); Ore Mining and Dressing Category including, mercury ore subcategory (40CFR440.40), copper, lead, zinc subcategory (40CFR440.100), platinum ores subcategory; Pesticide Manufacturing category, metallo organic pesticide chemicals subcategory (40CFR455); Battery Manufacturing category, LeClanche and zinc subcategories (40CFR461.40).

However, this list does not limit the types of dischargers that may have mercury effluent limits or monitoring requirements in their NPDES permits. Individual states may impose specific mercury discharge limits and/or monitoring requirements on individual facilities that discharge into water quality-limited waterbodies. The current EPA-approved level of detect for mercury is 200 ng/L, which may be higher than water quality based effluent limits, and higher than some states' water quality standards for mercury.

Threshold that triggers coverage: No volume or quantity threshold

Regulatory Mechanism(s): effluent limits, effluent fees (WI), permits, operating requirements, control requirements, monitoring/reporting

Environmental Standards: surface water, sludge

Potential Changes: Great Lakes Water Quality Initiative (GLI): In recognition of the vulnerability of the Great Lakes to bioaccumulative pollutants, including mercury, EPA proposed water quality criteria designed to protect aquatic life, wildlife, and human health on a long term basis. The GLI is designed to remedy the differences in water quality standards of the Great Lakes states and protect lakes from chemicals that bioaccumulate in the food chain. Released in draft form, the GLI proposes several major changes to water quality programs in the Great Lakes states, including water quality standards for mercury designed to protect wildlife.

Clean Water Act Reauthorization: Several bills introduced into Congress as part of the Clean Water Act reauthorization process may change the current regulations governing mercury water discharges. Proposed changes include a ban and/or discharge tax on all mercury discharges.

Other relevant statutes: Mercury water releases are listed in a facilities Toxic Release Inventory, provided the facility meets the TRI threshold reporting requirements (see discussion under Mercury Reporting Requirement). Michigan also collects information on use and release in its Critical Materials Registry.

3) Mercury Waste Disposal

Statute: Resource Conservation and Recovery Act (RCRA) (see also 40 CFR 261)

Principal Provisions that affect mercury disposal:
RCRA regulations outline specific classification and disposal requirements for products and wastes that contain mercury. In general, RCRA regulations are waste-specific, not source-specific, and thus may apply to any facility that generates mercury-containing wastes.

Waste code identification: RCRA regulations assign specific waste codes to five types of wastes that are either "characteristic" wastes or "listed" wastes. Mercury is both a characteristic and a listed waste under RCRA.

Wastes are considered "characteristic" hazardous wastes if they exhibit any of four specified characteristics: ignitability, corrosivity, reactivity, or toxicity. Ignitability, corrosivity, and reactivity describe general properties of the waste, whereas the toxicity characteristic identifies wastes likely to leach specific toxic constituents into groundwater if managed improperly. Wastes that exhibit concentrations above a specific regulatory level for any of 40 substances, including mercury, are considered hazardous.

A specific "D" waste code identifies the contaminant(s) for which a waste exhibits the toxicity characteristic. The regulatory level for mercury is 0.2 mg/l (or 0.2ppm), and the waste code D009, identifies wastes that exceed the toxicity characteristic for mercury (40CFR261.24). Regulations outline the required toxicity characteristic leaching procedure (TCLP) test necessary to determine the concentration of each substance (40CFR261 AppII).

"Listed" wastes are specifically identified wastestreams or products that appear on one of three hazardous waste lists in RCRA. Each listed waste is assigned a different waste code. Wastes from non-specific sources such as spent solvents, are assigned an "F" code. Wastes from specific sources are assigned a "K" code. Each of these wastes are listed for a specific substance (40CFR 261.30). Appendix VII of the regulations lists the constituents that caused specific wastestreams to be listed.

Commercial chemical products such as manufacturing chemical intermediates, off-specification species, container residues, and spill residues may also be considered hazardous wastes when discarded. Two sublists identify waste codes for commercial chemical products. Chemicals assigned a "P" code are considered acute hazardous wastes when discarded (40CFR261.33 (e)); chemicals assigned a "U" code are toxic chemicals considered hazardous when discarded and are regulated like other listed hazardous wastes (40CFR261.33(f)). The P and U lists are triggered only when the P or U chemical is the sole active ingredient, a commercial product is discarded, or a listed chemical is spilled. These lists do not apply to manufacturing process wastestreams that contain listed chemicals.

In addition to the D009 waste code, the following waste codes identify mercury-containing wastes or discarded chemical products:

• F039: Leachate (liquids that have percolated through land disposed wastes) resulting from the disposal of more than one restricted waste classified as hazardous. F039 is listed for multiple substances and may not be a reliable indicator of mercury in the wastestream.
• K071: Brine purification muds from the mercury cell process in chlorine production, where separately prepurified brine is not used. K071 is listed only for mercury.
• K106: wastewater treatment sludge from the mercury cell process in chlorine production. K106 is listed only for mercury.
• P065 identifies mercury fulminate (mercury compound used in explosives) as an acute hazardous waste;
• P092 identifies phenylmercuric acetate (mercury compound used in paints) as an acute hazardous waste; and
• U151 identifies mercury as a toxic waste.

Disposal Requirements, including prohibitions on land disposal: RCRA regulations describe specific disposal requirements for individual waste codes. All mercury-bearing wastes (wastewaters and nonwastewaters) are subject to land disposal restrictions. That is, the mercury concentration in these wastes must be below the regulatory concentration level before the wastes may be land-disposed. For some types of waste, the regulations require a specific treatment, such as incineration or thermal treatment. In other cases, only a maximum mercury concentration is required, and any treatment method may be used. As a result of recently imposed land disposal restrictions on chlor alkali wastes (K071 and K106), some facilities are building their own mercury recovery facilities, whereas others are shipping their wastes to Canada or elsewhere for disposal.

RCRA regulations also influence product disposal and recycling options for mercury containing products. Discarded products considered hazardous wastes are subject to storage, transportation, and permitting requirements under RCRA subtitle C (hazardous wastes). Currently, batteries are included in a "universal waste rule" that eases RCRA restrictions on hazardous waste management and enables states to set up special collection programs. Fluorescent lamps, however, are considered hazardous waste because levels of mercury exceed the toxicity characteristic for mercury. EPA is considering two options to ease disposal restrictions: (1) including mercury-lamps in the universal waste rule to facilitate recycling, or (2) a conditional exemption which would allow disposal in solid waste landfills.

Requirements for owners and operators of hazardous waste land treatment facilities: Landfill owners must determine the mercury concentrations in any wastes if food chain crops are grown at the facility. Food chain crops cannot be grown on the treated area of a hazardous waste land treatment facility unless the owner or operator can demonstrate, based on field testing that any mercury and other specified constituent will not impair the quality of the food grown there (40CFR 265.273 and .276).

Hazardous waste combustion: RCRA regulates air emissions from hazardous waste combustion and boiler and industrial furnaces (BIFs). Cement kilns, regulated under interim BIF standards, frequently burn hazardous waste as a fuel source. Federal regulations for hazardous waste incinerators do not currently set metals limits. A potential for regulatory overlap exists between RCRA hazardous waste combustion rules and Clean Air Act municipal waste combustion rules.

Specific Sources covered: Any facility that uses mercury may generate waste that exceeds the toxicity characteristic for mercury. Facility operators use best professional judgment to determine whether or not to test their waste specifically for mercury. Mercury-cell chlor-alkali facilities are the only mercury sources that have specifically listed wastestreams (K071, K106).

Threshold that triggers coverage: Facilities must meet RCRA hazardous waste quantity thresholds before they are required to report information on their hazardous waste generation and management. Thresholds are based on the total amount of hazardous waste generated at a facility, not on the amount of any one kind of waste (e.g., facilities that generate more than 2,200 pounds per month of hazardous waste are considered large quantity generators; facilities that generates 220 - 2,200 pounds of hazardous waste per month are considered small quantity generators). Therefore, levels of mercury waste alone are not likely to determine whether or not an individual facility it subject to RCRA requirements.

Regulatory Mechanisms: disposal restrictions, labeling, control requirements, inspections, planning requirements, operating requirements, permits, reporting

Environmental Standards: hazardous waste concentration, groundwater standards

Potential Changes: EPA is revising the hazardous waste combustion rules, the interim standards that regulate boilers and industrial furnaces, and fluorescent lamp disposal requirements. The "universal waste rule" for batteries, and possibly thermostats, is scheduled to be finalized in the fall of 1994.

4) Mercury Reporting Requirements

Several sections of the Superfund Amendments and Reauthorization Act of 1986 (SARA), which amended CERCLA to address ongoing activities that result in releases of hazardous substances, impose reporting requirements on mercury use, release, and spills. Title III, known as the "Emergency Planning and Community Right-to-Know Act" establishes emergency release, inventory, and release reporting requirements. The most well known requirement is the Toxics Release Inventory (TRI), which requires facilities in the manufacturing sector (SIC codes 20-39) to report releases to air, water, and land for all listed chemicals, including mercury. Other sections require facilities to report spills of listed substances above a threshold reporting quantity (reportable quantities), and the quantities of chemicals stored above a specified threshold planning quantity. Each of these sections is discussed separately below.

Statute: (SARA Title III, §313) Toxic Chemical Release Inventory (TRI)

Principal Provisions that affect mercury reporting: All facilities in the manufacturing sector (SIC codes 20 - 39) that meet the threshold reporting requirements must report their releases of mercury to all media. TRI thresholds are based on the quantity of each substance used, processed, manufactured, or imported at any of these facilities.

Mercury is one of 17 priority chemicals target by EPA's 33/50 program, a voluntary pollution prevention initiative that established an interim goal of achieving a 33% reduction in releases of targeted chemicals by 1992 and a 50% reduction by 1995, using 1988 TRI reporting data as a baseline. The 33/50 program is one of EPA's primary voluntary reduction programs designed to augment traditional command and control regulations. Releases and transfers of the 33/50 chemicals declined four times faster than non-33/50 chemicals between 1991 and 1992.

Specific Sources covered: Any manufacturing facility that uses quantities of mercury above the reporting threshold.

Threshold that triggers coverage: Facilities that manufacture, process, or import 25,000 pounds of mercury and/or otherwise use 10,000 pounds of mercury must report releases to all media. These thresholds are generally too high to capture the vast majority of sources that use mercury.

Regulatory Mechanism: public disclosure, reporting

Potential Changes: EPA is considering two proposals that would affect the number and types of facilities required to report under TRI. One proposal would lower the TRI reporting threshold, and perhaps include multiple thresholds. Given the low number of sources captured under the current reporting threshold, it is conceivable that, depending on the level of a new threshold, many new facilities would be captured under TRI. Another proposal would expand the reporting universe beyond the manufacturing sector. At present, mining operations, waste disposal sources, and other facilities not included in SIC codes 20 - 39, are not required to report releases under TRI. Again, depending on how this expansion is structured, different types of facilities would likely be captured under TRI.

Other relevant statutes: Clean Air Act, Clean Water Act, RCRA. Courts are currently reviewing whether or not a facility that reports mercury releases to water in its TRI report but does not have a Clean Water Act NPDES permit for those discharges is in violation of its NPDES permit.

Statute: SARA Title III §302, §304, §311 and §312 (threshold planning quantities and reportable quantities)

Principal Provisions that affect mercury reporting: SARA reportable quantities are linked closely to CERCLA §102 reporting requirements. Under SARA §302, any facility that produces, uses, or stores "extremely hazardous" substances must notify the State Emergency Response Commission. Mercuric acetate, mercuric chloride, and mercuric oxide (mercury compounds) are considered extremely hazardous substances (40CFR355). Under §304, a facility must notify the state emergency response commission and a local emergency planning committee of releases that exceed reportable quantities for hazardous substances. Facilities must also notify the National Response Center (1-800-424-8802). The reportable quantity for mercury spills is one pound (40CFR302).

Under §311 and §312, facilities that keep hazardous substances on-site in quantities greater than threshold levels must submit a chemical inventory to the state emergency response commission, the local emergency planning commission, and the local fire department (40CFR370). The threshold for mercury (a hazardous substance) is 10,000 pounds, and the threshold for listed mercury compounds is 500 pounds (extremely hazardous substances).

Specific Sources covered: Any facility that uses mercury may be potentially subject to these regulations.

Threshold that triggers coverage: Hazardous substances in quantities greater than 10,000 pounds, and extremely hazardous substances in quantities greater than 500 pounds must be reported. The reporting threshold for mercury spills is one pound (40CFR355.40).

Regulatory Mechanism(s): reporting, public disclosure

Environmental Standards: n/a

Potential Changes: None identified.

Other relevant statutes: Clean Air Act, Clean Water Act, CERCLA. Ohio imposes an annual chemical inventory filing fee of $100.00 base fee, plus $10 for each additional hazardous substance over 5 substances and $50 per extremely hazardous substance reported. The facility filing fee cap is $2,500.

TABLE 12 - Potential Changes in Mercury Regulations

View Larger Image [PDF 9Kb, 1pp]

Appendix F: Data on Mercury Releases

Appendix F contains information on mercury releases available from several federal and state reporting systems. Federal and state agencies collect information on mercury releases as part of broader programs designed to meet reporting requirements for multiple substances. It is important to keep in mind that each data set must be interpreted separately due to differences in reporting requirements and the types of information collected.

All data is organized by Standard Industrial Classification codes (SIC codes). This structure offers a uniform method to identify industrial sectors. The first two digits of an SIC code identify major industrial sectors. The full four digit code allows more specific identification of industry type. Even with this detailed breakdown, variation exists within a given SIC code. For a complete list and description of SIC codes, as well as the specific industrial processes covered by each code, refer to the Standard Industrial Classification Manual.

By using SIC codes, it is possible, on a broad scale, to identify the types of industrial sectors where mercury releases occur most frequently. However, particularly for air emissions data, the link to SIC code may be misleading. For example, any facility that maintains a coal-fired boiler on site may generate mercury releases that are independent of a specific industrial process that uses mercury.

Appendix F includes mercury release information from six specific data sources. The list below indicates the specific components of Appendix F. The first page of each set of data includes an explanation of the reporting program and the data reviewed.

App. F1 [PDF 95Kb, 9pps] Summary of Reporting Information: The table shows, by SIC code, the frequency with which mercury releases appear in each data set reviewed for this analysis. It is organized by SIC code and by state.

App. F2 [PDF 380Kb, 5pps] Toxic Chemical Release Inventory (TRI) data: TRI data for 1992 and 1991.

• F2a = 1992 data for Great Lakes states only
• F2b = 1991 data for Great Lakes states only
• F2c = 1992 national mercury data
• F2d = 1991 national mercury data

App. F3 RCRA Biennial Report System (BRS) data: 1991 BRS data for mercury-bearing waste codes.

• F3a = Summary of facilities reporting mercury-bearing wastes in each SIC code
  [PDF 834b, 6pps]
• F3b = Summary of source processes that generate mercury-bearing wastes
  [PDF 50Kb, 12pps]
• Summary Data of Source Processes that Generate Mercury-Bearing Wastes
  [PDF 8Kb, 1pp]

App. F4 Permit Compliance System (PCS) data: PCS data for the Great Lakes basin (facilities located in the Great Lakes basin only; not necessarily statewide)

• F4a = July 1992 - June 1993 data
  [PDF 15Kb, 2pps]
• F4b = July 1991 - June 1992 data
  [PDF 811b, 2pp]

App. F5 [PDF 15Kb, 2pps] Wisconsin Air Point Source data: Mercury air emissions data collected for Wisconsin's Clean Air Act Title V Operating Permit Program (reported data).

App. F6 [PDF 18Kb, 3pps] Michigan Critical Materials Registry: 1991 data collected under Michigan's wastewater reporting program. Data indicates the number of facilities reporting mercury use.

App. F7 [PDF 16Kb, 2pps] Indiana AIRs data: Air emissions derived from data reported on criteria pollutants. This is not measured data. Instead, it represents estimated mercury releases based on emissions factor calculations.