Federal Regulation of Mercury Sources

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.

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.

Types of Mercury Regulations

(i) Mercury Release Regulations:

The Clean Air Act, the 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. Use- or release-related regulations have a direct effect on sources that use mercury or release mercury into the environment. These regulations specify the costs and/or conditions associated with using and releasing mercury during production or disposal. 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. 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.

(ii) 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. At present, mercury product laws represent a patchwork of regulations that vary by state. Example Statutes: Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 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 manufacturers. 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. Federal Food, Drug, and Cosmetic Act (FFDCA) 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. 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.

(iii) Mercury Air Emissions

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 sources" in any listed source category. Major sources are defined as those sources that release 10 tons per year of any single HAP, or 25 tons per year in total HAP emissions.

States: Individual states may impose specific mercury emission limits on individual facilities. For instance, many states impose limits on municipal and hazardous waste incinerators. The Occupational Safety and Health Administration has responsibility under the Occupational Safety and Health Act 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.

(iv) Mercury Discharges to Water

Mercury is listed as a toxic pollutant under §307(a) of the Clean Water Act. For mercury discharges, Clean Water Act regulations specify technology-based effluent limits for classes and categories of industries and describe the circumstances in which states may require effluent limits or monitoring requirements more stringent than technology-based standards.

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.

States: 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.

(v) Mercury Waste Disposal

The Resource Conservation and Recovery Act (RCRA) (see also 40 CFR 261) 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. RCRA regulations describe specific disposal requirements for individual waste codes.

All mercury-bearing wastes (wastewaters and non-wastewaters) 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.

Additionally, 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.

(vi) Mercury Reporting Requirements

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) addresses ongoing activities that result in releases of hazardous substances and imposes 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.