TSCA Reform Poised to Clamp Down on Mercury

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By Brian Dabbs

June 2 — The Senate is set to clamp down on U.S. mercury commerce and storage regulations nationwide with Toxic Substances Control Act reform passage, a feat that eluded Senate lawmakers on May 26 but continues to be a priority in the chamber.

The roughly 15 pages of mercury language in the legislation, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), would force the Energy Department to bar from export a list of mercury compounds, while encouraging the department to build a mercury storage facility for the chemical element and requiring a mercury inventory.

The mercury provisions are an outgrowth of a 2008 mercury export ban statute (Pub. L. 110-414), authored by then senator and now President Barack Obama, as well as a fulfillment of the Minamata Convention on Mercury obligations, experts told Bloomberg BNA.

The mercury language marks a compromise between lawmakers on Capitol Hill, as well as private sector stakeholders, David Lennett, senior attorney of the Natural Resources Defense Council, told Bloomberg BNA June 2.

“Environment and industry groups helped develop the mercury provisions in the package, and there’s nothing particularly controversial because both sides support the final package,” he said in an interview.

High levels of mercury, known as quicksilver and labeled a neurotoxin by the Environmental Protection Agency, can cause a range of physical and cognitive impairments, particularly in its methylmercury form. The agency hasn't linked mercury exposure to cancer.

Mercury is a common by-product of gold ore mining.

Reid, Others Spearheaded Inclusion

Senate Minority Leader Harry Reid (D-Nev.), along with Sens. Dean Heller (R-Nev.) and Sheldon Whitehouse (D-R.I.) spearheaded the inclusion of the mercury language in TSCA reform, staffers for those lawmakers told Bloomberg BNA.

The TSCA mercury language is drawn from the proposed Mercury Use Reduction Act of 2012, legislation that failed to move in the 112th Congress. Whitehouse, then-Sen. Frank Lautenberg (D-N.J.) and others introduced the bill.

“As the TSCA bill seeks to protect the public from dangerous chemicals in commerce—like mercury—these provisions are sensible to include,” Richard Davidson, a Whitehouse spokesman, told Bloomberg BNA June 2.

Inventory Requirement

The TSCA legislation would require the EPA to publish an inventory of mercury supply, use and trade in the U.S. by April 1, 2017, and every three years thereafter.

That statutory mandate is necessary to further reduce dangerous mercury exposure nationwide and to comply with Minamata convention obligations for phasing out or reducing mercury use in products and processes, NRDC's Lennett told Bloomberg BNA. Minamata Bay in Japan is the site where industrial releases accumulated in seafood and led to birth defects and other severe health problems.

“There is no question we need these data,” he said. “EPA is now starting to collect the data; having the law direct EPA to do so helps get it done.”

Davidson echoed that assessment.

“The inventory provision will aid the United States in complying with the Minamata Convention on Mercury, to which we have agreed to join and which will go into effect next year,” the Whitehouse spokesman said.

The convention falls under the United Nations Environment Program.

Compound Export Ban

TSCA reform would bar mercury chloride or calomel, mercury oxide, mercury sulfate, mercury nitrate and mercury sulfide or cinnabar from U.S. export beginning Jan. 1, 2020.

The legislation also would allow the EPA to add compounds to the list, and the agency would then have to publish the list of banned compounds within 90 days of enactment of the law.

“The list is a good start, based on what we know so far, in preventing companies from circumventing the export ban on elemental mercury by converting compounds back to elemental mercury overseas,” Lennett said.

The ban wouldn't apply to Organization for Economic Cooperation and Development countries that intend to dispose of the compounds in environmentally sound ways.

Legislation Follows Through on 2008 Deal

A spokeswoman for Reid, Kristen Orthman, said the language follows through on a deal struck in 2008 for mining companies to halt elemental mercury exports in exchange for shifting storage responsibility to the Energy Department.

The 2008 statute required the establishment of a permanent facility, but that has failed to take shape.

TSCA reform would reduce mining fees to reflect temporary storage costs if the permanent facility isn't operational by 2019.

The TSCA mercury provisions persevered through months of back and forth between the two chambers (22 DEN A-14, 2/3/16).

The Senate nearly polished off legislative work on TSCA May 26, but Sen. Rand Paul (R-Ky.) blocked expedited approval, leaving supporters to explore other routes to passage (106 DEN A-3, 6/2/16).

Comprehensive Update Needed?

TSCA reform supporters say a comprehensive update is necessary to evaluate the 80,000 chemicals in U.S. commerce, many of which may pose threats to human health and the environment.

The Minamata Convention on Mercury requires its signatories to cease production, domestic distribution, consumption and cross-border exports and imports of mercury, their derivatives and products such as thermometers and lamps by 2020. The Minamata treaty was adopted in 2013 and signed in the southern Japanese city of Minamata, the site of some of the first mass mercury poisoning cases in the world.

To contact the reporter on this story: Brian Dabbs in Washington at bdabbs@bna.com.

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com.