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Appeals Court Vacates One EPA Mercury Exemption, Says Others May Continue

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The Second Court of Appeals ruled that the Environmental Protection Agency’s (EPA) exemption to mercury reporting requirements for products with mercury-added components is unlawful but that other exemptions can continue.

The Natural Resources Defense Council, Inc. and the State of Vermont sought a review of the EPA rule for reporting mercury use information, alleging that some manufacturer and importer exemptions are “unlawful agency action.”

After Congress amended the Toxic Substances Control Act in 2016 requiring the EPA to complete and publish information about mercury use and trade, the EPA began the Reporting Rule requiring those who manufacture or import mercury to report information, with exemptions.

The order explains that mercury has some negative health effects in large doses, but it is still sometimes used in industrial processes for batteries, watches, cameras, paint, and many other items. The use of mercury-added products has decreased in the U.S. since 1980 because of these health effects.

The Second Circuit Court, according to the opinion by Judge Gerard E. Lynch, agreed that the exemption from reporting requirements for those importing products with a mercury-added component are unlawful, but did not agree with challenges to other exemptions.

“We find that the exemption for importers of products containing mercury-added components is an unlawful interpretation of the TSCA, because it lacks a reasoned explanation,” the order states. “We find that the exemption for manufacturers of products with mercury-added components and the exemption for high-volume manufacturers are lawful in light of Congress’s directive to ‘not require reporting which is unnecessary or duplicative.’”

The order states that for high-volume manufacturers there would be a “substantial overlap” to information currently reported under the Chemical Data Reporting rule and for the Reporting Rule, so reporting under this rule to the EPA would be superfluous. 

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