[Federal Register Volume 75, Number 139 (Wednesday, July 21, 2010)]
[Rules and Regulations]
[Pages 42330-42336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17718]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[EPA-HQ-OPPT-2008-0483; FRL-8832-2]
RIN 2070-AJ36


Elemental Mercury Used in Flow Meters, Natural Gas Manometers, 
and Pyrometers; Significant New Use Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating a significant new use rule (SNUR) under 
section 5(a)(2) of the Toxic Substances Control Act (TSCA) for 
elemental mercury (CAS No. 7439-97-6) for use in flow meters, natural 
gas manometers, and pyrometers, except for use in these articles when 
they are in service as of September 11, 2009. This action will require 
persons who intend to manufacture (including import) or process 
elemental mercury for an activity that is designated as a significant 
new use by this rule to notify EPA at least 90 days before commencing 
that activity. Persons subject to the provisions of this rule will not 
be exempt from significant new use reporting if they import into the 
United States or process elemental mercury as part of an article. The 
required notification will provide EPA with the opportunity to evaluate 
the intended use and, if necessary, to prohibit or limit that activity 
before it occurs.

DATES: This final rule is effective August 20, 2010.

ADDRESSES: EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPPT-2008-0483. All documents in the 
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket 
Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., 
NW., Washington, DC. The EPA/DC Public Reading Room hours of operation 
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number of the EPA/DC Public Reading Room is 
(202) 566-1744, and the telephone number for the OPPT Docket is (202) 
566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Peter Gimlin, National Program Chemicals Division (7404T), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 
(202) 566-0515; e-mail address: gimlin.peter@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; e-mail address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Does this Action Apply to Me?

    You may be potentially affected by this action if you manufacture 
(defined by statute to include import) or process elemental mercury 
used in flow meters, natural gas manometers, or pyrometers. Potentially 
affected entities may include, but are not limited to, manufacturers of 
instruments and related products for measuring, displaying, and 
controlling industrial process variables (North American Industrial 
Classification System (NAICS) code 334513). This listing is not 
intended to be exhaustive, but rather provides a guide for readers 
regarding entities likely to be affected by this action. Other types of 
entities not listed in this unit could also be affected. The NAICS 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the applicability provisions in 40 CFR 721.5 for 
SNUR-related obligations. If you have any questions regarding the 
applicability of this action to a particular entity, consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.
    This action may also affect certain entities through pre-existing 
import certification and export notification rules under TSCA. Persons 
who import any chemical substance governed by a final SNUR are subject 
to the TSCA section 13 (15 U.S.C. 2612) import certification 
requirements and the corresponding regulations at 19 CFR 12.118 through 
12.127 and 19 CFR 127.28. Those persons must certify that the shipment 
of the chemical substance complies with all applicable rules and orders 
under TSCA, including any SNUR requirements. The EPA policy in support 
of import certification appears at 40 CFR part 707, subpart B. In 
addition, TSCA section 12(b) (15 U.S.C. 2611(b)) export notification 
requirements are triggered by publication of a proposed SNUR. 
Therefore, on or after October 11, 2009, any persons who export or 
intend to export elemental mercury are subject to the export 
notification provisions of TSCA section 12(b) (see 40 CFR 721.20) and 
must comply with the export notification requirements in 40 CFR part 
707, subpart D. EPA also notes that, pursuant to the Mercury Export Ban 
Act of 2008 (Pub. L. 110-414), the export of elemental mercury from the 
United States will be prohibited as of January 1, 2013, unless an 
exemption is obtained under TSCA section 12(c)(4).

II. Background

A. What Action is the Agency Taking?

    EPA proposed this SNUR for elemental mercury used in flow meters, 
natural gas manometers, and pyrometers on September 11, 2009 (74 FR 
46707) (FRL-8432-3). EPA's response to public comments received on the 
proposed rule appear in Unit III.C. Please consult the September 11, 
2009, Federal Register document for further background information for 
this final rule.
    This final SNUR will require persons to notify EPA at least 90 days 
before commencing the manufacture, import, or processing of elemental 
mercury for any of the following significant new uses: Flow meters, 
natural gas manometers, or pyrometers. This rule does not affect the 
manufacturing and processing of elemental mercury for use in these 
articles when they are in service as of September 11, 2009. EPA

[[Page 42331]]

believes this SNUR is necessary because manufacturing, processing, use, 
or disposal of mercury associated with these uses may produce 
significant changes in human and environmental exposures. The rationale 
and objectives for this SNUR are explained in Unit IV.

B. What is the Agency's Authority for Taking this Action?

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to 
determine that a use of a chemical substance is a ``significant new 
use.'' EPA must make this determination by rule after considering all 
relevant factors, including those listed in TSCA section 5(a)(2). Once 
EPA determines that a use of a chemical substance is a significant new 
use, TSCA section 5(a)(1)(B) requires persons to submit a significant 
new use notice (SNUN) to EPA at least 90 days before they manufacture 
or process the chemical substance for that use (15 U.S.C. 
2604(a)(1)(B)). As described in Unit II.C., the general SNUR provisions 
are found at 40 CFR part 721, subpart A.

C. Applicability of General Provisions

    General provisions for SNURs appear under 40 CFR part 721, subpart 
A. These provisions describe persons subject to the rule, recordkeeping 
requirements, exemptions to reporting requirements, and applicability 
of the rule to uses occurring before the effective date of the final 
rule. However, 40 CFR 721.45(f) does not apply to this SNUR.
    As a result, persons subject to the provisions of this rule are not 
exempt from significant new use reporting if they import or process 
elemental mercury as part of an article (see 40 CFR 721.5). Conversely, 
the exemption from notification requirements for exported articles (see 
40 CFR 707.60(b)) remains in force. Thus, persons who export elemental 
mercury as part of an article are not required to provide export 
notification.
    Provisions relating to user fees appear at 40 CFR part 700. 
According to 40 CFR 721.1(c), persons subject to SNURs must comply with 
the same notice requirements and EPA regulatory procedures as 
submitters of Premanufacture Notices (PMNs) under TSCA section 
5(a)(1)(A). In particular, these requirements include the information 
submission requirements of TSCA section 5(b) and 5(d)(1), the 
exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and 
(h)(5), and the regulations at 40 CFR part 720. Once EPA receives a 
SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, 
or 7 to control the activities on which it has received the SNUN. If 
EPA does not take action, EPA is required under TSCA section 5(g) to 
explain in the Federal Register its reasons for not taking action.
    Persons who export or intend to export a chemical substance 
identified in a proposed or final SNUR are subject to the export 
notification provisions of TSCA section 12(b). The regulations that 
interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. 
Persons who import a chemical substance identified in a final SNUR are 
subject to the TSCA section 13 import certification requirements, 
codified at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Such 
persons must certify that the shipment of the chemical substance 
complies with all applicable rules and orders under TSCA, including any 
SNUR requirements. The EPA policy in support of import certification 
appears at 40 CFR part 707, subpart B.

III. Summary of Rule

A. Overview of Mercury and Mercury Uses

    1. Mercury. This rule applies to elemental mercury (CAS No. 7439-
97-6), which is a naturally occurring element. Because of its unique 
properties (e.g., exists as a liquid at room temperature and forms 
amalgams with many metals), elemental mercury has been used in many 
industrial processes and consumer products. In addition to its useful 
characteristics, mercury also is known to cause adverse health effects 
in humans and wildlife. These effects can vary depending on the form of 
mercury to which a person or animal is exposed, as well as the 
magnitude, length, and frequency of exposure.
    The most prevalent human and wildlife exposure to mercury results 
from ingesting fish contaminated with methylmercury. Methylmercury is 
an organo-metallic compound that is formed via the conversion of 
elemental or inorganic mercury compounds by certain microorganisms and 
other natural processes. For example, elemental mercury may evaporate 
and be emitted into the atmosphere. Atmospheric mercury can be 
deposited directly into water bodies or watersheds, where it can be 
washed into surface waters via overland run-off. Once deposited in 
sediments, certain microorganisms and other natural processes can 
convert elemental mercury into methylmercury. Methylmercury 
bioaccumulates, which means that it is taken up and concentrated in the 
tissues of aquatic, mammalian, avian, and other wildlife. Methylmercury 
is a highly toxic substance; a number of adverse health effects 
associated with exposure to it have been identified in humans and in 
animal studies. Most extensive are the data on neurotoxicity, 
particularly in developing organisms. Fetuses, infants, and young 
children generally are more sensitive to methylmercury's neurological 
effects than adults.
    In 2004, EPA and the Food and Drug Administration (FDA) issued a 
national consumption advisory concerning mercury in fish. The advisory 
contains recommended limits on the amount of certain types of fish and 
shellfish that pregnant women and young children can safely consume. By 
2005, all fifty states had issued fish consumption advisories for fish 
from certain water bodies known to be contaminated by methylmercury 
(http://www.epa.gov/mercury/advisories.htm).
    In addition to methylmercury, exposure to elemental mercury can 
also pose health risks. Elemental mercury primarily causes health 
effects when it is breathed as a vapor that can be absorbed through the 
lungs. These exposures can occur when elemental mercury is spilled or 
products that contain elemental mercury break, resulting in release of 
mercury to the air, particularly in warm or poorly-ventilated indoor 
spaces.
    For additional detailed background information (e.g., chemistry, 
environmental fate, exposure pathways, and health and environmental 
effects), as well as references pertaining to elemental mercury that 
EPA considered before proposing this rule, please refer to EPA's 
proposed SNUR for mercury switches in motor vehicles, issued in the 
Federal Register of July 11, 2006 (71 FR 39035) (FRL-7733-9), or in the 
docket for the 2006 proposal under docket identification number EPA-HQ-
OPPT-2005-0036. All documents in the docket are listed in the docket's 
index which is available at http://www.regulations.gov.
    2. Mercury uses. Elemental mercury has been used in thousands of 
products and applications. Over the past two decades, there has been a 
dramatic drop in elemental mercury use by industries in the United 
States. In response to increased concerns about exposure to 
anthropogenic sources of mercury in the environment and also because of 
the availability of suitable mercury-free products, Federal and State 
governments have made efforts to limit the use of elemental mercury in 
certain products. Various states have banned or restricted the 
manufacture or sale of products containing mercury (see http://
www.epa.gov/epawaste/hazard/tsd/

[[Page 42332]]

mercury/laws.htm). On October 5, 2007, EPA issued a final SNUR for 
elemental mercury used in convenience light switches, anti-lock braking 
system switches, and active ride control system switches in certain 
motor vehicles (72 FR 56903) (FRL-8110-5).
    In the past, elemental mercury was used in the manufacture of flow 
meters, natural gas manometers, and pyrometers. The latest information 
available to EPA indicates that the manufacture of these mercury-
containing articles has ceased (Ref. 1). In proposing this rule, EPA 
asked for public comment on ongoing processing or availability of these 
articles and received no comments indicating that the manufacturing, 
import, processing, sale, or use of these articles occurs.
    i. Flow meters containing elemental mercury. Flow meters are 
instruments which measure the flow rate of liquids or gases. 
Historically, they have been used in civil engineering applications, 
e.g., water treatment plants, sewage plants, and power stations. Flow 
meters contained up to 5 kilograms (kg) of elemental mercury. At 
present, the sale of mercury-containing flow meters is banned in six 
states: California, Maine, Massachusetts, New Hampshire, New York, and 
Vermont (Ref. 4). Many mercury-free alternatives exist, including 
differential pressure meters, positive displacement meters, velocity 
meters, and mass meters. EPA found sufficient information to conclude 
that mercury-containing flow meters are no longer manufactured in or 
imported into the United States (Ref. 1).
    ii. Natural gas manometers containing elemental mercury. A 
manometer is an instrument used to measure the pressure of gases or 
liquids. For purposes of this rule, a natural gas manometer means a 
mercury-containing instrument used in the natural gas industry to 
measure the pressure differential of natural gas in a pipeline. Mercury 
manometers have been used in the natural gas industry on individual 
wells, pipeline junctions, pipeline manifolds, compressor stations, and 
distribution points. The manometers contain between 3.2 and 54.5 kg of 
mercury. A common design for manometers is a U-shaped tube with one end 
opened to the atmosphere and the other connected to a process. 
Contained in the tube is a liquid (mercury, in the past). Pressure 
differential is measured by comparing the liquid levels in each of the 
two vertical sections of the tube. Seven states have enacted broad bans 
on the sale of mercury manometers (Ref. 4), and Louisiana prohibits the 
sale of mercury-containing natural gas manometers (Ref. 2). Available 
information indicates that bellows orifice meters have replaced mercury 
meters in the natural gas industry. EPA found sufficient information to 
conclude that mercury-containing manometers are no longer manufactured 
in or imported into the United States (Ref. 1).
    iii. Pyrometers containing elemental mercury. A pyrometer is an 
instrument that is similar to a thermometer but is typically used to 
measure extremely high temperatures in industrial processes such as in 
foundries, for pottery and ceramic kiln work, and in automotive 
applications. Historically, pyrometers contained mercury in sensing 
units in amounts ranging between 5 and 10 grams of mercury. In recent 
years, California, Maine, Massachusetts, New Hampshire, New York, and 
Vermont have banned the sale of mercury-containing pyrometers (Ref. 4). 
EPA found sufficient information to conclude that mercury-containing 
pyrometers are no longer manufactured, or imported into the United 
States (Ref. 1).
    3. Potential exposure and release from these uses. The typical 
lifecycle of flow meters, natural gas manometers, and pyrometers 
includes several stages: Manufacture, distribution in commerce, use, 
and waste management (landfilling or recycling). At any point in the 
lifecycle, there is potential for mercury to be released as liquid or 
vapor. Workers and others can be exposed to the mercury and it can be 
released into water, air, or onto land as the mercury is transported, 
stored, and handled during manufacturing. While the flow meters, 
manometers, and pyrometers are in use, the mercury can vaporize or 
spill due to breakage during transport, installation, maintenance, 
refilling, or repair. For example, beginning in the 1920s, mercury-
containing manometers were used in the Louisiana natural gas industry, 
and mercury releases to the environment have been attributed to these 
manometers. (Ref. 3). Other opportunities for release can occur at the 
end of the lifecycle of flow meters, manometers, and pyrometers, as the 
devices are removed from equipment and facilities and handled during 
waste management.

B. Today's Action

    EPA is designating as significant new uses, use of elemental 
mercury in flow meters, natural gas manometers, or pyrometers. However, 
use of elemental mercury in these articles when they are in service as 
of September 11, 2009, will not be covered as a significant new use 
under this SNUR. Definitions of ``flow meter,'' ``natural gas 
manometer,'' and ``pyrometer'' can be found at 40 CFR 721.10068 of the 
regulatory text for this final rule.
    This action will amend 40 CFR 721.10068 and require persons who 
intend to manufacture or process elemental mercury for a use designated 
by this rule as a significant new use to notify EPA at least 90 days 
before commencing the manufacturing or processing of elemental mercury 
for such significant new use. The required notification will provide 
EPA with the opportunity to evaluate the intended use and, if 
necessary, to prohibit or limit that activity before it occurs.
    For this SNUR, EPA is not including the general ``article'' 
exemption at 40 CFR 721.45(f). Thus, persons importing or processing 
elemental mercury (including when part of an article) for a significant 
new use will be subject to the notification requirements of 40 CFR 
721.25. EPA is not including this exemption because flow meters, 
natural gas manometers, and pyrometers are articles, and a primary 
concern associated with this SNUR is potential exposures associated 
with the lifecycle of these uses. Further, it is possible to reclaim 
elemental mercury from certain articles, which could be used to produce 
flow meters, natural gas manometers, and pyrometers. EPA notes that, in 
accordance with TSCA section 12(a) and 40 CFR 721.45(g), persons who 
manufacture or process elemental mercury solely for export will be 
exempt from the notification requirements of 40 CFR 721.25, if when 
distributing the substance in commerce, it is labeled in accordance 
with TSCA section 12(a)(1)(B). Further, EPA notes that the exemption 
from the TSCA section 12(b) notification requirements for exported 
articles (see 40 CFR 707.60(b)) remains in force. Thus, persons who 
export elemental mercury as part of an article will not be required to 
provide export notification.
    EPA believes elemental mercury is no longer used to manufacture 
flow meters, natural gas manometers, or pyrometers, but some of these 
articles may remain in service in the United States (no public comments 
were received in response to the proposed rule indicating the ongoing 
use of such articles). The ongoing use of such articles, including 
maintenance and servicing activities, falls outside the scope of this 
significant new use rule. Thus, the manufacturing and processing of 
elemental mercury for use in these articles, provided they are in 
service as of September 11, 2009, will not be covered by the rule. For 
example, if an article that is in service as of September 11, 2009, is 
removed from service for maintenance or servicing,

[[Page 42333]]

including the addition of new mercury, and then placed back into 
service, any manufacturing or processing of mercury associated with 
that maintenance or servicing will not be covered by the rule. 
Otherwise, the addition of new mercury to these existing articles after 
September 11, 2009, could potentially trigger a significant new use 
notice under this rule (e.g., if it involved processing of the 
mercury), which is not EPA's intent.

C. Response to Public Comments

    EPA received three comments on the proposed rule that was issued in 
the Federal Register of September 11, 2009 (74 FR 46707). Copies of all 
comments received are in the public docket for this rule. All three 
commenters expressed general support for the proposed rule. No comments 
provided any data or made any assertions that manufacture, import, 
processing, distribution, or use of elemental mercury in these articles 
is ongoing. A discussion of specific comments suggesting changes to the 
proposal and EPA's response follows:
    1. Comment. One commenter believed the language on the requirement 
to notify EPA ``at least 90 days'' before commencing a subject activity 
created ambiguities, and should be changed to ``within 90 days.'' The 
commenter also thought the factors used to determine a significant new 
use should be more specific, perhaps by establishing a quantity 
determination. Finally, the commenter thought the proposed SNUR should 
be expanded to include mercury-containing products currently in use.
    Response. The requirement to notify EPA at least 90 days before (>= 
90 days) commencement is specified by TSCA section 5(a)(1); EPA does 
not see any ambiguity. Similarly, the factors used to determine a 
significant new use noted by the commenter are those specified by TSCA 
section 5(a)(2). EPA notes these are the factors EPA uses when it makes 
a determination on a significant new use; chemical manufacturers and 
processors are subject to the new regulations at 40 CFR 721.10068. The 
commenter's recommended regulation of current uses (if any) of these 
mercury-containing articles is outside the scope of this TSCA section 
5(a) regulation. As discussed in the proposed rule, EPA considered and 
rejected regulating elemental mercury in these articles under TSCA 
section 6(a).
    2. Comment. Another commenter recommended that EPA use this rule to 
mandate all states to develop a mercury reduction plan. The commenter 
also asked EPA to work with the FDA to ban the use of mercury in all 
vaccines.
    Response. The actions recommended by the commenter are outside the 
scope of this regulation.
    3. Comment. The third commenter proposed EPA take three additional 
steps in this rulemaking: (1) Require that current owners of manometers 
and flowmeters disclose the number of meters and their location to EPA; 
(2) classify the sale of replacement parts as a significant new use; 
and (3) phase out the use of old manometers through an incentive 
program for removal.
    Response. The disclosure requirement proposed by the commenter is 
outside the scope of this regulation. As noted previously, EPA 
considered and rejected regulating elemental mercury in these articles 
under TSCA section 6(a). The disclosure requirement proposed by the 
commenter would require a separate rulemaking by EPA under TSCA section 
6(a) authority. EPA believes inventories of these articles in use are 
minimal or non-existent. Regarding the second recommendation, EPA is 
not aware of any large inventories of either mercury-containing 
replacement parts or existing equipment that would be kept in service 
for prolonged periods by their use. EPA wishes to clarify that 
depending on the exact nature of these replacement parts, if any exist, 
and the circumstances of their eventual end use, they may or may not 
fall under the scope of this regulation. Only flow meters, natural gas 
manometers and pyrometers in service as of September 11, 2009, are 
specifically exempt. The commenter's third proposal for a phase-out and 
waste recovery program is outside the scope of this significant new use 
regulation.

IV. Rationale and Objectives

A. Rationale

    As summarized in Unit III.A, EPA has concerns regarding the adverse 
health effects presented by mercury in humans and wildlife, as well as 
its environmental fate and the exposure pathways. EPA is encouraged by 
the discontinuation of the use of elemental mercury in the 
manufacturing of flow meters, natural gas manometers, and pyrometers. 
However, EPA is concerned that the manufacturing or processing of 
elemental mercury for use in flow meters, natural gas manometers, or 
pyrometers could be reinitiated in the future. Accordingly, EPA wants 
the opportunity to evaluate and control, where appropriate, activities 
associated with those uses, if such manufacturing or remanufacturing 
were to occur again. The required notification provided by a SNUN will 
provide EPA with the opportunity to evaluate activities associated with 
a significant new use and an opportunity to protect against 
unreasonable risks, if any, from exposure to mercury.

B. Objectives

    Based on the considerations in Unit IV.A., EPA has the following 
objectives with regard to the significant new uses that are designated 
in this rule:
    1. EPA will receive notice of any person's intent to manufacture or 
process elemental mercury for any of the described significant new uses 
before that activity begins.
    2. EPA will have an opportunity to review and evaluate data 
submitted in a SNUN before the notice submitter begins manufacturing or 
processing of elemental mercury for any of the described significant 
new uses.
    3. EPA will be able to regulate prospective manufacturers or 
processors of elemental mercury before the described significant new 
uses of the chemical substance occur, provided that regulation is 
warranted pursuant to TSCA sections 5(e), 5(f), 6 or 7.

V. Significant New Use Determination

    Section 5(a)(2) of TSCA states that EPA's determination that a use 
of a chemical substance is a significant new use must be made after 
consideration of all relevant factors including:
     The projected volume of manufacturing and processing of a 
chemical substance.
     The extent to which a use changes the type or form of 
exposure of human beings or the environment to a chemical substance.
     The extent to which a use increases the magnitude and 
duration of exposure of human beings or the environment to a chemical 
substance.
     The reasonably anticipated manner and methods of 
manufacturing, processing, distribution in commerce, and disposal of a 
chemical substance.
    In addition to these factors enumerated in TSCA section 5(a)(2), 
the statute authorizes EPA to consider any other relevant factors.
    To determine what would constitute a significant new use of 
elemental mercury, EPA considered the four factors listed in section 
5(a)(2) of TSCA. The latest information available to EPA indicates that 
there is no ongoing use of elemental mercury in the manufacture or 
remanufacture of flow meters, natural gas manometers, or pyrometers. 
Resumption of these uses of elemental mercury could result in a 
significant increase in the magnitude and duration of exposure to 
workers and the surrounding environment at facilities of all types in 
the lifecycle, as well as an increase in releases which could

[[Page 42334]]

contribute additional mercury to the atmosphere for long-range 
transport. Resumption of these uses could also result in exposures to 
workers who had not previously worked in these facilities when 
elemental mercury was commonly used, as well as exposures to workers 
who are not currently being exposed to mercury in the manufacture of 
flow meters, natural gas manometers, or pyrometers. Increases in 
mercury releases could lead to increases in mercury concentrations in 
the environment, resulting in overall ecosystem degradation, as well as 
a deleterious effect on human health from consumption of mercury-
contaminated fish.
    EPA believes that any of these renewed uses of elemental mercury 
would increase the magnitude and duration of exposure to humans and the 
environment over that which would otherwise exist. Based upon the 
relevant factors as discussed in this unit, EPA has determined that any 
manufacturing or processing of elemental mercury for use in flow 
meters, natural gas manometers, or pyrometers is a significant new use.

VI. Applicability of Rule to Uses Occurring Before Effective Date of 
the Final Rule

    As discussed in the Federal Register of April 24, 1990 (55 FR 
17376), EPA has decided that the intent of section 5(a)(1)(B) of TSCA 
is best served by designating a use as a significant new use as of the 
date of publication of the proposed rule rather than as of the 
effective date of the final rule. If uses begun after publication of 
the proposed rule were considered ongoing rather than new, it would be 
difficult for EPA to establish SNUR notice requirements, because a 
person could defeat the SNUR by initiating the proposed significant new 
use before the rule became final, and then argue that the use was 
ongoing as of the effective date of the final rule. Thus, persons who 
began or begin commercial manufacture or processing of the elemental 
mercury for a significant new use designated in this rule will have to 
cease any such activity before the effective date of this rule. To 
resume their activities, these persons would have to comply with all 
applicable SNUR notice requirements and wait until the notice review 
period, including all extensions, expires. EPA has promulgated 
provisions to allow persons to comply with this SNUR before the 
effective date. If a person were to meet the conditions of advance 
compliance under Sec.  721.45(h), that person would be considered to 
have met the requirements of the final SNUR for those activities.
    Accordingly, this final rule specifies that uses after the date of 
publication of the proposed rule, September 11, 2009, are subject to 
this rule. Although the September 11, 2009, date was correctly 
specified in the regulatory text of the proposed rule document, in 
several instances in the preamble text to the proposed rule document, 
the effective date of the final rule was incorrectly given as the 
applicable date of the SNUR provisions of this rule. No comment was 
received on the issue.

VII. Test Data and Other Information

    EPA recognizes that TSCA section 5 does not require developing any 
particular test data before submission of a SNUN. Persons are required 
only to submit test data in their possession or control and to describe 
any other data known to or reasonably ascertainable by them (15 U.S.C. 
2604(d); 40 CFR 721.25). However, as a general matter, EPA recommends 
that SNUN submitters include data that would permit a reasoned 
evaluation of risks posed by the chemical substance during its 
manufacture, processing, use, distribution in commerce, or disposal. 
EPA encourages persons to consult with the Agency before submitting a 
SNUN. As part of this optional pre-notice consultation, EPA would 
discuss specific data it believes may be useful in evaluating a 
significant new use. SNUNs submitted for significant new uses without 
any test data may increase the likelihood that EPA will take action 
under TSCA section 5(e) to prohibit or limit activities associated with 
this chemical.
    SNUN submitters should be aware that EPA will be better able to 
evaluate SNUNs that provide detailed information on:
    1. Human exposure and environmental releases that may result from 
the significant new uses of the chemical substance.
    2. Potential benefits of the chemical substance.
    3. Information on risks posed by the chemical substances compared 
to risks posed by potential substitutes.

VIII. SNUN Submissions

    As stated in Unit II.C., according to Sec.  721.1(c), persons 
submitting a SNUN must comply with the same notice requirements and EPA 
regulatory procedures as persons submitting a PMN, including submission 
of test data on health and environmental effects as described in Sec.  
720.50. SNUNs must be submitted to EPA, on EPA Form No. 7710-25 in 
accordance with the procedures set forth in Sec. Sec.  721.25 and 
720.40. This form is available from the Environmental Assistance 
Division (7408M), 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001. Forms and information are also available electronically at http://www.epa.gov/opptintr/newchems.

IX. Economic Analysis

    EPA evaluated the potential costs of establishing SNUR reporting 
requirements for potential manufacturers and processors of the chemical 
substance included in this rule. EPA's economic analysis, which is 
briefly summarized here, is available in the public docket (Ref. 1).
    The costs of submission of a SNUN will not be incurred by any 
company until a company decides to pursue a significant new use as 
defined in this SNUR. In the event that a SNUN is submitted, costs are 
estimated at approximately $8,000 per SNUN submission, and includes the 
cost for preparing and submitting the SNUN, and the payment of a user 
fee. Businesses that submit a SNUN are either subject to a $2,500 user 
fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small 
business with annual sales of less than $40 million when combined with 
those of the parent company (if any), a reduced user fee of $100 (40 
CFR 700.45(b)(1)). In its evaluation of this rule, EPA also considered 
the potential costs a company might incur by avoiding or delaying the 
significant new use in the future, but these costs have not been 
quantified.

X. References

    The following documents are specifically referenced in the preamble 
for this rulemaking. In addition to these documents, other materials 
may be available in the docket established for this rulemaking under 
Docket ID No. EPA-HQ-OPPT-2008-0483, which you can access through 
http://www.regulations.gov. Those interested in the information 
considered by EPA in developing this rule, should also consult 
documents that are referenced in the documents that EPA has placed in 
the docket, regardless of whether the other documents are physically 
located in the docket.
    1. EPA, 2009. Economic Analysis for the Proposed Significant New 
Use Rule for Mercury-Containing Flow Meters, Nanometers, and 
Pyrometers. Washington, D.C. OPPT/EETD/EPAB, July 21, 2009.
    2. La. Rev. Stat. Ann. section 2575 (2006).

[[Page 42335]]

    3. State of Louisiana Mercury Risk Reduction Plan, prepared by the 
Louisiana Department of Environmental Quality, 2007. Available as of 
May 13, 2010 at http://www.ldeq.org/portal/Portals/0/organization/MercuryReportforweb.pdf.
    4. Mercury Reduction and Education Legislation in the IMERC-Member 
States, prepared by Terri Goldberg and Adam Wienert, NEWMOA, June 2008. 
Available as of May 13, 2010 at http://www.newmoa.org/prevention/mercury/imerc/legislation-2008.htm.

XI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Office of Management and 
Budget (OMB) has determined that this final SNUR is not a ``significant 
regulatory action,'' because it does not meet the criteria in section 
3(f) of the Executive Order. Accordingly, this action was not submitted 
to OMB for review under Executive Order 12866.

B. Paperwork Reduction Act

    According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., an Agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information that requires OMB 
approval under the PRA, unless it has been approved by OMB and displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations in title 40 of the CFR, after appearing in the Federal 
Register, are listed in 40 CFR part 9, and included on the related 
collection instrument, or form, if applicable.
    The information collection requirements related to this action have 
already been approved by OMB pursuant to the PRA under OMB control 
number 2070-0038 (EPA ICR No. 1188). This action does not impose any 
burden requiring additional OMB approval. If an entity were to submit a 
SNUN to the Agency, the annual burden is estimated to average 110 hours 
per response. This burden estimate includes the time needed to review 
instructions, search existing data sources, gather and maintain the 
data needed, and complete, review, and submit the required SNUN.

C. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that promulgation 
of this SNUR will not have a significant adverse economic impact on a 
substantial number of small entities. The rationale supporting this 
conclusion is as follows. A SNUR applies to any person (including small 
or large entities) who intends to engage in any activity described in 
the rule as a ``significant new use.'' By definition of the word 
``new,'' and based on all information currently available to EPA, it 
appears that no small or large entities presently engage in such 
activity. Since a SNUR requires a person who intends to engage in such 
activity in the future to first notify EPA by submitting a SNUN, no 
economic impact will occur unless someone files a SNUN to pursue a 
significant new use in the future or forgoes profits by avoiding or 
delaying the significant new use. Although some small entities may 
decide to conduct such activities in the future, EPA cannot presently 
determine how many, if any, there may be. However, EPA's experience to 
date is that, in response to the promulgation of over 1,000 SNURs, the 
Agency receives on average only 5 notices per year. Of those SNUNs 
submitted, only one appears to be from a small entity in response to 
any SNUR. Therefore, EPA believes that the potential economic impact of 
complying with a SNUR is not expected to be significant or adversely 
impact a substantial number of small entities. In a SNUR that published 
as a final rule on August 8, 1997 (62 FR 42690) (FRL-5735-4), the 
Agency presented its general determination that proposed and final 
SNURs are not expected to have a significant economic impact on a 
substantial number of small entities, which was provided to the Chief 
Counsel for Advocacy of the Small Business Administration.

D. Unfunded Mandates Reform Act

    Based on EPA's experience with proposing and finalizing SNURs, 
State, local, and Tribal governments have not been impacted by these 
rulemakings, and EPA does not have any reason to believe that any 
State, local, or Tribal government will be impacted by this rulemaking. 
As such, EPA has determined that this regulatory action will not impose 
any enforceable duty, contain any unfunded mandate, or otherwise have 
any effect on small governments subject to the requirements of sections 
202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 
(UMRA) (2 U.S.C. 1531-1538).

E. Executive Order 13132: Federalism

    This action will not have a substantial direct effect on States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132, entitled 
Federalism (64 FR 43255, August 10, 1999).

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    This final rule will not have Tribal implications because it is not 
expected to have substantial direct effects on Indian Tribes. This rule 
will not significantly or uniquely affect the communities of Indian 
Tribal governments, nor will it involve or impose any requirements that 
affect Indian Tribes. Accordingly, the requirements of Executive Order 
13175, entitled Consultation and Coordination with Indian Tribal 
Governments (65 FR 67249, November 9, 2000), do not apply to this final 
rule.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), because this is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
this action does not address environmental health or safety risks 
disproportionately affecting children.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use

    This final rule is not subject to Executive Order 13211, entitled 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001), because this action 
is not expected to affect energy supply, distribution, or use.

I. National Technology Transfer Advancement Act

    In addition, since this action does not involve any technical 
standards; section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 section 12(d) (15 U.S.C. 272 note), does not 
apply to this action.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental 
justice related issues as delineated by

[[Page 42336]]

Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994).

XII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report to each House of the Congress and 
the Comptroller General of the United States. EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, 
Reporting and recordkeeping requirements


    Dated: July 12, 2010.
Wendy C. Hamnett,
Director, Office of Pollution Prevention and Toxics.

0
Therefore, 40 CFR part 721 is amended as follows:

PART 721--[AMENDED]

0
1. The authority citation for part 721 continues to read as follows:

    Authority: 15 U.S.C. 2604, 2607, and 2625(c).


0
2. In Sec.  721.10068, revise paragraph (a) and add a new paragraph 
(b)(2)(vii) to read as follows:


Sec.  721.10068  Elemental mercury.

    (a) Definitions. The definitions in Sec.  721.3 apply to this 
section. In addition, the following definitions apply:
    Flow meter means an instrument used in various applications to 
measure the flow rate of liquids or gases.
    Motor vehicle has the meaning found at 40 CFR 85.1703.
    Natural gas manometer means an instrument used in the natural gas 
industry to measure gas pressure.
    Pyrometer means an instrument used in various applications to 
measure extremely high temperatures.
    (b) * * *
    (2) * * *
    (vii) Manufacturing or processing of elemental mercury for use in 
flow meters, natural gas manometers, and pyrometers except for use in 
these articles when they are in service as of September 11, 2009.
* * * * *

[FR Doc. 2010-17718 Filed 7-20-10; 8:45 am]
BILLING CODE 6560-50-S