Notice2023-09301
Notice of Availability of Interim Guidance on Packaging, Transportation, Receipt, Management, Short-Term and Long-Term Storage of Elemental Mercury and Request for Comment
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Published
May 2, 2023
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy (DOE) provides this Notice of Availability and Request for Comment on a revision to DOE's 2009 U.S. Department of Energy Interim Guidance on Packaging, Receipt, Management, and Long-Term Storage of Elemental Mercury (2009 Long-Term Storage Guidance) and Guidance for Short-Term Storage of Elemental Mercury by Ore Processors (May 2019) (2019 Short-Term Storage Guidance). DOE specifically seeks input from potentially affected States, pursuant to the Mercury Export Ban Act, as amended, and also invites the public, stakeholders, and other States to provide comments on this draft guidance document.
Full Text
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<title>Federal Register, Volume 88 Issue 84 (Tuesday, May 2, 2023)</title>
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[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Notices]
[Pages 27495-27498]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09301]
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DEPARTMENT OF ENERGY
Notice of Availability of Interim Guidance on Packaging,
Transportation, Receipt, Management, Short-Term and Long-Term Storage
of Elemental Mercury and Request for Comment
AGENCY: Office of Environmental Management, U.S. Department of Energy.
[[Page 27496]]
ACTION: Notice of availability; request for comments.
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SUMMARY: The U.S. Department of Energy (DOE) provides this Notice of
Availability and Request for Comment on a revision to DOE's 2009 U.S.
Department of Energy Interim Guidance on Packaging, Receipt,
Management, and Long-Term Storage of Elemental Mercury (2009 Long-Term
Storage Guidance) and Guidance for Short-Term Storage of Elemental
Mercury by Ore Processors (May 2019) (2019 Short-Term Storage
Guidance). DOE specifically seeks input from potentially affected
States, pursuant to the Mercury Export Ban Act, as amended, and also
invites the public, stakeholders, and other States to provide comments
on this draft guidance document.
DATES: The 30-day public comment period begins on the date of
publication of this Notice and ends on June 1, 2023. Comments may be
received through one of the methods described in section C in
SUPPLEMENTARY INFORMATION section.
ADDRESSES: Please direct written comments via one of the following
methods:
Email: Send comments to <a href="/cdn-cgi/l/email-protection#59183d3d3c34383035383d3d2b3c2a2a193c34773d363c773e362f"><span class="__cf_email__" data-cfemail="ebaa8f8f8e868a82878a8f8f998e9898ab8e86c58f848ec58c849d">[email protected]</span></a> . Please submit
comments in MicrosoftTM Word, or PDF file format, and avoid the use of
encryption.
U.S. Mail: Send comments to the following address: David Haught,
U.S. Department of Energy, Office of Environmental Management, Office
of Waste Disposal (EM-4.22), 1000 Independence Avenue SW, Washington,
DC 20585.
FOR FURTHER INFORMATION CONTACT: David Haught at
<a href="/cdn-cgi/l/email-protection#07466363626a666e6b6663637562747447626a2963686229606871"><span class="__cf_email__" data-cfemail="eeaf8a8a8b838f87828f8a8a9c8b9d9dae8b83c08a818bc0898198">[email protected]</span></a> or at U.S. Department of Energy, Office of
Environmental Management, Office of Waste Disposal (EM-4.22), 1000
Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-
5000.
SUPPLEMENTARY INFORMATION:
A. Background
The Mercury Export Ban Act of 2008 (Pub. L. 110-414) (MEBA of 2008)
as amended by the Frank R. Lautenberg Chemical Safety for the 21st
Century Act (Pub. L. 114-182) (Chemical Safety Act of 2016),
established requirements pertaining to elemental mercury and certain
mercury compounds. Those requirements are located in the Toxic
Substances Control Act (TSCA) (Pub. L. 94-469) and the Solid Waste
Disposal Act of 1965 (Pub. L. 89-272), as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA) (Pub. L. 94-580), and
subsequent amendments. Among other things, MEBA of 2008, and the
Chemical Safety Act of 2016, collectively referred to herein as MEBA,
amended TSCA and RCRA to ban the export of elemental mercury and
certain mercury compounds, as well to provide for long-term and interim
(i.e., short-term) management and storage of elemental mercury.
Specifically, MEBA of 2008 required DOE to designate a facility or
facilities for the long-term management and storage of elemental
mercury (referred to herein as the Long-Term Elemental Mercury Storage
Facility (LTEMSF)) and to issue guidance on recommended standards and
procedures for receipt, management, and long-term storage of elemental
mercury. 42 U.S.C. 6939(a)(1), (d)(1). The Chemical Safety Act of 2016
provided for interim onsite storage of elemental mercury for certain
generators, while awaiting availability of the DOE-designated LTEMSF.
42 U.S.C. 6939f(g)(2)(D). It further required DOE to issue guidance on
recommended standards and procedures for management and short-term
onsite storage. 42 U.S.C. 6939f(g)(2)(E). DOE, after consultation with
the U.S. Environmental Protection Agency (EPA) and appropriate State
agencies in potentially affected States, issued the 2009 Long-Term
Storage Guidance to establish standards and procedures for packaging,
transportation, receipt, management, and long-term storage of elemental
mercury at a DOE-designated facility or facilities, as mandated by MEBA
of 2008. Subsequently, the Chemical Safety Act of 2016 amended MEBA of
2008 and provided for onsite interim storage of elemental mercury that
is generated as a result of ore processing and/or related pollution
control activities and is destined for DOE's LTEMSF. It required DOE to
issue additional guidance for short-term management and storage of
elemental mercury by the covered generators. Accordingly, DOE issued
the 2019 Short-Term Storage Guidance to address this requirement. Both
guidance documents were based on certain planning assumptions specific
to those timeframes.
B. Revised Guidance Document
Neither MEBA of 2008 nor the Chemical Safety Act of 2016 mandate
revisions to either the 2009 Long-Term Storage Guidance or 2019 Short-
Term Storage Guidance documents; however, since their initial issuance,
some key underlying assumptions have changed and this revision, which
addresses both long-term and short-term storage, reflects those
changes, as discussed below. Once finalized and issued, this guidance
document will supersede the previously issued 2009 Long-Term Storage
Guidance and 2019 Short-Term Storage Guidance. At that time, the
previously issued guidance documents will be rescinded. This draft
guidance document was developed by DOE after consultation with the EPA,
as well as the U.S. Department of Transportation (DOT). Additionally,
DOE is specifically seeking input from potentially affected States and
will further consult with them, as necessary.
1. Omission of Example Procedures: DOE has determined that it is
not appropriate to include example procedures in this guidance
document, but rather to defer to the LTEMSF Operator(s) implementation
of its RCRA permit and approved procedures, in conjunction with
oversight from their regulator(s). The 2009 Long-Term Storage Guidance
included standards and example procedures for receipt, management, and
long-term storage of elemental mercury. These procedures, as presented
in the various sections of that document, provided annotated outlines
or templates of what was envisioned to be included in the LTEMSF
procedures for all aspects of operation. In general, these templates
described suggested processes used to meet the expectations of the
applicable standards. However, the Operator(s) of the DOE-designated
LTEMSF, whether a commercial or federal government RCRA-permitted
treatment, storage and disposal facility (TSDF), will likely leverage
existing hazardous waste procedures, as well as develop new procedures
as required for critical operations specific to management of elemental
mercury. These procedures must ensure compliance with the applicable
federal regulations, as well as state and local regulations. New and/or
revised procedures are expected to require review and approval by the
regulator(s).
2. Waste Container Contents: The 2009 Long-Term Storage Guidance
contained a key assumption that the elemental mercury accepted for
storage in the DOE-designated LTEMSF would be at least 99.5 percent by
volume (vol%) elemental mercury. DOE does not carry this assumption
forward in the revision. Instead, DOE assumes the generators will
comply with applicable RCRA hazardous waste treatment and packaging
requirements for highly concentrated elemental mercury, prior to
receipt at the DOE LTEMSF. DOE's interpretation of the term ``elemental
mercury'' used in MEBA, see, e.g., 42 U.S.C. 6939f(a), is that only
elemental mercury that was generated in the U.S. and that meets one (or
more) of the
[[Page 27497]]
following criteria is acceptable for storage in its LTEMSF: (1) U151
coded waste, (2) D009 coded waste generated as a result of Retorting of
Mercury (RMERC) treatment technology, and/or (3) mercury that was
previously treated to 99.5 vol% elemental mercury.\1\
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\1\ Elemental mercury that has previously been treated to 99.5
vol% elemental mercury will be accepted at the DOE facility. This is
included to capture treatment that some generators have already
undertaken in order to meet DOE's original 99.5 vol% criteria.
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Based on the expected elemental mercury generator sources and the
related factors discussed below, this revised guidance does not assume
any DOE-specified minimum purity for elemental mercury accepted for
management and storage at the DOE-designated LTEMSF. Rather, it focuses
on applicable RCRA and DOT regulations related to compatibility of the
waste with the containers.
3. Generators: In general, elemental mercury generators can be
grouped into three primary categories: (1) ore processors, (2)
commercial recyclers, and (3) chlor-alkali plants. Generation of
mercury by ore processors typically occurs due to retorting as part of
their required pollution control activities and represents the majority
of the potential projected receipts at a DOE-designated LTEMSF.
Similarly, commercial recyclers use retorting to separate elemental
mercury from certain waste media, as well as collect commercial/
technical-grade elemental mercury from discarded components. Finally,
the chlor-alkali plants generate elemental mercury during
decommissioning of electrolytic cells that use commercial/technical-
grade elemental mercury in the process. All of these generation sources
are expected to produce relatively pure elemental mercury waste
streams; however, each must be evaluated on a case-by-case basis by the
LTEMSF Operator(s), in consultation with appropriate regulators, to
determine they meet one of the three criteria set forth above for
acceptability.
4. Containers and Compatibility: The principal objective regarding
the containers accepted for storage in the DOE-designated LTEMSF is
that they are lined with, or made of, materials that will not react
with and are compatible with the hazardous waste to be stored and do
not pose a risk of accelerated corrosion and container failure over
time (40 CFR 264/265.172). Currently, there are two primary containers
of interest, which are in common commercial use for packaging,
transportation, and storage of elemental mercury, that meet the
applicable DOT regulations in 49 CFR 173. These include a three-liter
(3-L) flask, with a 35-kg capacity, and a one metric ton (1-MT)
container. Both are constructed of mild steel and are unlined such that
the contents are in direct contact with the container inside surfaces.
Due to their prevalent use, these are the assumed predominant
containers to be received at the DOE-designated LTEMSF.
Given the uncertain duration for elemental mercury storage, the
requirement for compatible materials is particularly relevant and
important to safe management of the inventory. The primary contaminants
of concern are those that can exist as secondary phases floating on top
of the elemental mercury (i.e., as opposed to the trace amounts of very
small particles of metals or amalgams that may be suspended in the
elemental mercury). These could be solid phases of mercury salts, such
as calomel (mercury chloride) and cinnabar (mercury sulfide), or
aqueous phases of water, acid solutions, and chloride salt solutions.
Any of these secondary phases of contaminants could eventually lead to
failure of unlined containers made of mild steel. DOE will only accept
elemental mercury that was generated in the U.S. and that meets one (or
more) of the following criteria: (1) U151 coded waste, (2) D009 coded
waste generated as a result of RMERC treatment technology, and/or (3)
mercury that was previously treated to 99.5 vol% elemental mercury.
No secondary phases of contaminants, based on process knowledge
developed in accordance with 40 CFR 262.11(d) or visual examination, as
determined appropriate by the Operator(s) of the DOE-designated LTEMSF,
in coordination with their regulators, including solid and liquid
phases, are acceptable for receipt at the DOE-designated LTEMSF,
ensuring compliance with compatibility requirements set forth in 40 CFR
264/265.172, and 49 CFR 173.24(c). Based on the operations that
generate significant portions of the elemental mercury inventories that
are anticipated to be transferred to the LTEMSF, process knowledge is
expected to be acceptable for characterizing the container contents to
the extent required to treat, store, or dispose of the waste. Periodic
validation via analysis and/or visual examination will be performed in
accordance with the applicable regulations, described in 40 CFR 264.13,
in consultation with the Operator(s) of the DOE-designated LTEMSF, and
in compliance with 40 CFR 268.7 to re-validate the basis for acceptable
process knowledge.
5. Onsite Short-Term Storage by Ore Processors: Section 10(c) of
the Chemical Safety Act of 2016 states that, if DOE is unable to accept
elemental mercury for reasons beyond the control of the generator, ore
processors who meet the applicable requirements specified therein ``may
accumulate the mercury produced onsite that is destined for a facility
designated by the Secretary [of Energy] under subsection (a) for more
than 90 days without a permit issued under section 3005(c) of the Solid
Waste Disposal Act (42 U.S.C. 6925(c)), and shall not be subject to the
storage prohibition of section 3004(j) of that Act (42 U.S.C.
6924(j)).'' 42 U.S.C. 6939f(g)(2)(D). Ore processors that elect to
conduct onsite short-term storage of elemental mercury that is destined
for the DOE-designated LTEMSF will be subject to all RCRA regulations
applicable to generators accumulating hazardous waste on site, as set
forth in 40 CFR 262.17, with the exception of the accumulation times,
which are specifically exempted in the Chemical Safety Act of 2016.
As previously discussed, DOE has not yet designated the LTEMSF. Ore
processors are the only generators granted exemption from the RCRA
storage prohibitions and allowed to accumulate elemental mercury onsite
beyond 90 days in non-permitted temporary storage. Based on the
technologies used in the pollution control systems operated by the ore
processors, the elemental mercury acceptable for short-term storage is
typically generated via retorting (i.e., RMERC). Accordingly, it is
expected to exhibit a relatively high percent by volume of elemental
mercury, although there is a potential for contaminants to be present
as secondary phases in the containers. The revised guidance document
includes changes to the 2019 Short-Term Storage Guidance by specifying
the criteria for elemental mercury which DOE will accept and by adding
emphasis to the requirements for compatible waste containers and
compliance with the requirements of 40 CFR 264/265.172. The approach
for ensuring compliance should be determined in consultation with and
approval by the regulators for the affected ore processors.
C. Request for Comments
DOE specifically seeks comment from potentially affected states--
Arkansas, Illinois, Nevada, Pennsylvania, Tennessee, Texas, and Utah--
which are analyzed as candidate storage locations in DOE's 2022 Draft
Supplemental Environmental Impact Statement (DOE/EIS-0423-S2D) and also
invites the public, stakeholders, and other States to provide comments
on this draft
[[Page 27498]]
guidance document. DOE will accept comments via the methods prescribed
above in the ADDRESSES section. The Department will consider all
comments received during the public comment period and modify the
guidance document as appropriate. Any necessary follow-up consultation
with EPA or State agencies in potentially affected States will be
conducted in accordance with MEBA, 42 U.S.C. 6939f(d)(1).
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: one copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
Signing Authority
This document of the Department of Energy was signed on April 27,
2023, by Kristen G. Ellis, Acting Associate Principal Deputy Assistant
Secretary for Regulatory and Policy Affairs, Office of Environmental
Management, pursuant to delegated authority from the Secretary of
Energy. That document with the original signature and date is
maintained by DOE. For administrative purposes only, and in compliance
with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on April 27, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2023-09301 Filed 5-1-23; 8:45 am]
BILLING CODE 6450-01-P
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